Front Page Titles (by Subject) 65.: VAN VECHTEN VEEDER, THE HISTORY OF THE LAW OF DEFAMATION 1 - Select Essays in Anglo-American Legal History, vol. 3
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65.: VAN VECHTEN VEEDER, THE HISTORY OF THE LAW OF DEFAMATION 1 - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 3 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1909). Vol. 3.
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THE HISTORY OF THE LAW OF DEFAMATION1
IF the laws of each age were formulated systematically, no part of the legal system would be more instructive than the law relating to defamation. Since the law of defamation professes to protect personal character and public institutions from destructive attacks, without sacrificing freedom of thought and the benefit of public discussion, the estimate formed of the relative importance of these objects, and the degree of success attained in reconciling them, would be an admirable measure of the culture, liberality, and practical ability of each age. Unfortunately the English law of defamation is not the deliberate product of any period. It is a mass which has grown by aggregation, with very little intervention from legislation, and special and peculiar circumstances have from time to time shaped its varying course. The result is that perhaps no other branch of the law is as open to criticism for its doubts and difficulties, its meaningless and grotesque anomalies. It is, as a whole, absurd in theory, and very often mischievous in its practical operation.
Nevertheless, the existence of any body of legal rules is at least prima facie ground of justification. Some, it may be, are wholly pernicious; but they must have had some origin, and the longer they have existed the greater is the presumption that they have some utility. They can be accounted for only by discovering the special circumstances out of which they arose, and the forces to which they have been exposed. By studying the way in which they have grown, and the functions which they have discharged, we can best arrive at a sound conclusion concerning their real nature and value.
Early in the middle ages reputation was amply protected in England by the combined secular and spiritual authorities. In the course of the nationalization of justice by the king’s judges the jurisdiction of the seignorial courts fell into decay; and, after a long and bitter struggle, the jurisdiction of the ecclesiastical courts was also absorbed by the royal tribunals. When, however, the king’s courts acquired jurisdiction over defamation, during the latter half of the sixteenth century, various social and political conditions combined to contract the actionable right, or remedy. The king’s courts granted only a limited remedy, the selection being based partly upon the character of the imputation, partly upon the consequences resulting therefrom; moreover, even this limited remedy was little concerned in theory with the right to reputation as such. By reason of its growth in this way the early common law of defamation consisted merely of a series of exceptions to entire license of speech. When, at length, early in the seventeenth century, the potentialities of the printing press dawned upon the absolute monarchy, the emergency was met, not by further additions to the list of actionable imputations, but by a direct importation of the Roman law, without regard to Roman limitations, and with certain additions adapted to the purpose in hand. This special provision for written or printed defamation, first adopted in the criminal law, eventually became also a principle of civil judicature. In this way a new principle of actionable defamation, based upon mere form, was introduced in the law. The original common law doctrine of defamation, based upon the nature of the imputation, became stereotyped as the law of spoken defamation, or slander; the doctrine inherited from Roman law, through the Star Chamber, became the law of written and printed defamation, or libel.1 The English law of defamation, therefore, was first limited by a process of selection, and then confused by a formal distinction which is not only unknown in other systems of law,2 but is also wholly accidental in origin and irrational in principle.
The beginnings of the law of defamation among the Germanic people take us back to the first stages in the development of organized society. The blood feud had supplanted indiscriminate vengeance, but the substitution of the wer, or money payment, as compensation for injury, was not very old when the early Leges Barbarorum were compiled. The process is very clearly marked in the case of defamation. The Lex Salica is much concerned with foul language. If one calls a man “wolf” or “hare” he must pay three shillings; for a false imputation of unchastity against a woman the penalty is forty-five shillings.3 By the terms of the Norman Costumal if one falsely calls another “thief” or “manslayer” he must pay damages, and, holding his nose with his fingers, must publicly confess himself a liar.1 It is a mistaken idea, therefore, to suppose that the primitive Teuton could feel only blows, and treated hard words of no account. Many forms of expression which in a civilized community would be regarded as violent abuse doubtless passed for common pleasantry, but reputation was dear to him and shame was keenly felt. Indeed, a good reputation was a defence to almost every crime.2
More than a thousand years ago King Alfred provided that the slanderer should have his tongue cut out, unless he could redeem it with the price of his head.3 The oldest English laws exact bot and wite of those who give bad names. The earliest records of pleadings in the local courts indicate the prevailing sensitiveness; disgrace or dishonor is one of the elements in almost every cause of action. If the defendant had beaten the plaintiff, this was done to the plaintiff’s damage to the amount of so many shillings, and to his dishonor (vituperium, dedecus, pudor, huntage) to the amount of so many shillings more.4
Actions for defamation were common in the seignorial courts in the thirteenth and fourteenth centuries.5 Many would doubtless resort to the duel, but for the mass of humble folk these courts probably did substantial justice. The manorial rolls show the operation of a jurisdiction sufficiently certain and severe to curb defamation of the baser sort. In these local courts the smirched reputation would be cleared before the very persons in whose presence it had been reviled. So that even at a later day when the king’s courts were well established, they do not deal with defamation; for such wrongs the humbler subjects sought their remedy in the more familiar, cheaper, and perhaps more trusted, local courts. When, at length, late in the sixteenth century, actions for defamation became common in the king’s courts, the manorial courts were in their decay.1
Meanwhile the Church punished defamation as a sin. Throughout Europe in the middle ages a great government existed, independent of the separate states; the temporal government was local, but there was a spiritual jurisdiction which was universal. From its humble beginnings in the efforts of the early Christian churches to persuade the faithful to lay their differences before their pastors, a jurisdiction had been evolved, through the canons established by the great councils during the fourth and fifth centuries, which had grown into a mighty system. It outgrew its foster-mother, the Roman law, and throughout Europe challenged the secular authority. From the ninth century to the close of the middle ages, the most autocratic monarch of Western Europe would not have dreamed of denying the authority of the canon law. It had its own tribunals, its own practitioners, its own procedure; it was a very real and active force in men’s lives.2 Indeed, monopolizing learning, as they did, the clergy, as individuals, were indispensable in the social life of the people; and, as an organized caste, the Church, in the performance of its professed duty to support the right and to protect the weak, had grasped the regulation of nearly everything that concerned the peaceful occupations of life.3
The demarcation of the real province of this ecclesiastical jurisdiction was a difficult task. The Church claimed and exercised jurisdiction, as of a spiritual nature, not alone over matters of ecclesiastical economy, but over matrimonial and testamentary causes and pledges, and was with difficulty prevented from appropriating the greater part of the province of contract. But its broadest claim was the correction of the sinner for his soul’s health. Under this head, along with the whole province of sexual morality, usury, and perjury came defamation. Contumelious words were among the various matters which had been embraced in Roman law under the title “injuria.” Injuria, in its legal acceptation, meant insult; but it was more comprehensive than the modern significance of the word. A person was insulted in many ways by direct force, as by assault and battery; or without direct force, as by shouting after him in the street so as to cause a crowd to follow him. Reproachful language which lessened one’s good fame was also an injury; and this class of injuries grew in ecclesiastical law into the distinct title “diffimation.” The Church, then, being answerable for the cleanliness of men’s lives, stayed the tongue of the defamer at once pro custodia morum of the community, and pro salute animæ of the delinquent. The usual ecclesiastical penance for the offence was an acknowledgment of the baselessness of the imputation, in the vestry room in the presence of the clergyman and church wardens of the parish, and an apology to the person defamed.1
William the Conqueror did not question the ecclesiastical jurisdiction. At the conquest all the tribunals were presided over by ecclesiastics, and for nearly a century thereafter many of the king’s judges were ecclesiastics. The Conqueror simply separated the ecclesiastical from the civil jurisdiction by a historic ordinance commanding that no bishop or archdeacon should thereafter hold pleas relative to ecclesiastical matters, as theretofore, in the county court. Shortly afterwards, however, the rivalry between the secular and spiritual jurisdictions began. One of the first limits put upon the Church’s pretensions to punish sin was the requirement that if the sin was also an offence which the temporal courts could punish, the spiritual judges were not to meddle with it. The first statute in which defamation is mentioned dates from the thirteenth year of Edward I. In specifying certain cases “wherein the king’s prohibition doth not lie,” it was provided: “And in cause of defamation it hath been granted already that it shall be tried in a spiritual court where money is not demanded.”1 That is, the temporal and spiritual courts would seem to have divided the cause of action, the forum depending upon whether money was demanded. This line of demarcation becomes very significant in after times; but apparently it bore no immediate fruit, for it is long before we find actions of defamation in the king’s courts. Indeed, as soon afterwards as the ninth year of Edward II it was enacted that corporal penance in defamation might be commuted for a money payment, “the king’s prohibition notwithstanding.”2 A statute of the succeeding reign, limiting the exercise of the spiritual jurisdiction so as not to deter from the prosecution of the offenders before the king’s justices,3 points the other way, and presages the long and bitter struggle between Church and State over the administration of justice.
Apart from the growing power of the king’s courts, the tyranny and corruption of the ecclesiastical courts had, long before the Reformation, aroused a very strong feeling of antipathy. Their inquisitorial procedure was little calculated to commend itself. Most of the cases were instigated by the obnoxious apparitors attending the various courts, who gathered in the gossip of the day, and retailed it to the court as a ground for denunciation and prosecution.4 Then, too, it is surprising that injured persons should have been content so long with the very limited satisfaction of seeing their defamers doing penance in a white sheet.1 These considerations doubtless contributed towards the ultimately successful aggression of the king’s courts. Before the Commonwealth the jurisdiction of the Church had been crippled.2 It survived in theory without any adequate means of enforcement,3 and was finally abolished altogether in the second decade of Victoria’s reign.4
Archdeacon Hale’s Precedents include a number of interesting causes of defamation during the period from 1475 to 1610. Out of some seven hundred causes collected, about six per cent concern defamation. As may be inferred from the fact that the vast majority of the cases collected relate in one way or another to sexual immorality, the majority of the slanders alleged are those which impute this offence.5 In three cases the defamation was in writing, but no distinction seems to have been taken on that ground; in one of the later cases it is expressly declared that no distinction is to be taken as to mere form.6
While as yet the bulk of the nation found a remedy for defamation in the seignorial and ecclesiastical courts, there was still another jurisdiction, during part of this time, open to a limited aristocracy, official or otherwise, and administered by the king’s council. This was the statutory offence known as De Scandalis Magnatum. The original statute, enacted in 1275, provided:
“Whereasmuch as there have been afore times found in the country devisers of tales . . . whereby discord or occasion of discord hath arisen between the king and his people or great men of this realm . . . it is commanded that none be so hardy as to tell or publish any false news or tales whereby discord or occasion of discord or slander may grow between the king and his people or the great men of the realm; he that doth so shall be taken and kept in prison until he hath brought him into the court which was first author of the tale.”7
A subsequent act in the reign of Richard II recites the former act against “devisers of false news and of horrible and false lies, of prelates, dukes, earls, barons, and other noble and great men of the realm, whereby great discord hath arisen, and whereof, great peril and mischief might come to all the realm, and quick subversion and destruction of the said realm, if due remedy be not provided,” and then continues:
“It is accorded and agreed in this Parliament that when any such deviser is taken and imprisoned and cannot find him by whom the speech is moved, as before is said, that he shall be punished by the advice of the said council, notwithstanding the said statutes.”1
These statutes were construed with the generous comprehensiveness which characterized the activities of the king’s council.2 The criminal remedy was enforced by the council, sitting, according to Crompton, in the “starred chamber.”3 Although the statutes had also a civil aspect, the civil remedy was seldom used. The last action under these statutes was in 1710; but they were formally repealed only in recent times.4
The action De Scandalis Magnatum was of little importance in itself, but in its tendency and ultimate consequences it had a very significant bearing upon the law of defamation. Protecting none but the great men of the realm who, on account of their noble birth or official dignity, could not or would not demean themselves either by personal encounter or by resort to any other jurisdiction than that of their sovereign, these statutes are hardly to be taken as a recognition by the royal authority of the right to reputation. They were in fact directed rather against sedition and turbulence than against ordinary defamation. We know from their context and from contemporaneous history that their immediate cause is to be found in the plain speaking and homely wit of the Lollard rhymes current in the days of the peasants’ revolt. The political songs current in the Plantagenet times sounded the voice of the people in public affairs. Indeed, for centuries the song and ballad writers were the only spokesmen of the people in political affairs. It was they who gave voice to popular criticism, discontent and rejoicing, in a form, moreover, in which every mood of passion was embodied with a condensation of force and feeling to which the raillery of sadness of music added its own significance. It was with reference to such a time that one can appreciate the force of Fletcher’s well-known sentiment that the making of the people’s songs is a greater influence than the making of their laws.
The significance of the action De Scandalis Magnatum is, then, that it was directed against political scandal, and that the law was administered in the Star Chamber. This cognizance of defamation considered as a political and criminal offence was repeatedly confirmed, and as to particular cases, extended by subsequent statutes. It was a familiar jurisdiction, and one which constantly grew with exercise. Hence it is not surprising to find that by the time of Elizabeth the Star Chamber had assumed jurisdiction of cases of ordinary or non-political defamation, which it decided in the way of criminal proceedings. There was indeed, a measure of justification for this course. The duel was still a common method of vindication among those who did not come within the terms of the statutory remedy. Now the Star Chamber made every effort, in the interest of the public peace, to suppress duelling.1 But it might well feel that it was idle to prohibit this ancient remedy and offer no substitute. Therefore it took cognizance of both political and non-political defamation in the interests of public tranquillity.1
Finally we come to the king’s courts of common law, which, prior to the reign of Elizabeth, practically gave no remedy for defamation. This fact is, of course, at variance with modern ideas, according to which the administration of justice is regarded as the inevitable and exclusive function of the state. But a glance at the condition of Europe in the middle ages will show that state justice was then very feeble. Men were judged by their lords, by their fellow burghers, by their priests, but they were seldom judged by the state. In England the jurisdiction of the state grew more rapidly than elsewhere. The development of the system of writs, by means of which the king’s justices built up the jurisdiction of the royal courts, practically ceased with Henry III; henceforth judicial legislation proceeded only by the slow stages of decision and precedent. Edward I, however, carried on the process with a new conception. Law had been declared by kings, by landowners, by folks, by judges, by merchants, by ecclesiastics. By combining all these forces in legislation we get a law which is stronger, better, and more comprehensive than the separate laws which preceded it. For more than two centuries this conception of national law found a serious rival in the canon law, but with the Reformation the modern idea of law was realized.2
For the statement that pleas of defamation were not entertained in the king’s court we have express authority. The earliest mention of the offence in this jurisdiction occurs in a picturesque dispute between two Irish magnates, which had been removed in 1295 to Westminster, where the whole process was annulled for errors, foremost among which was the fact that the case had begun with a charge of defamation—“and it is not used in this realm that pleas of defamation should be pleaded in the king’s court.”3 The silence of the Year Books and of the Abridgments confirm this statement. In the Year Books, from the first year of the reign of Edward III to the last year of Henry VIII, a period of two hundred and twenty years, there are in all only ten cases of defamation; one in the time of Edward III, three under Edward IV, one under Henry VII, and five under Henry VIII. The oldest Abridgments, Statham’s (1494) and Fitzherbert’s (1563), do not mention the ‘action sur le cas pur parolx’; and Brooke’s Abridgment (1573) contains only two paragraphs under this head.1 This brings us to the reign of Elizabeth, which marks a turning point.
The king’s courts, then, did not usually entertain such actions. But, as already shown, this denial of a remedy in the king’s courts was no denial of a right. There were other courts where reputation was defended. Only as the old local courts fell into decay did denial of a remedy at Westminster come to be a denial of a right. This may serve to explain the few instances in which, in early times and under exceptional circumstance, we do come across the action in the king’s courts. The fact that when the action does first appear it is in the form of a special action on the case is quite conclusive that there was no remedy at common law prior to the statute of Westminster the Second. Prior to that time the right was probably adequately protected by the seignorial courts. When however, these local courts had fallen into decay, the question of royal jurisdiction would become more important. But by that time the task was not an easy one. The time had passed when a new form of action could be created without statute, which made it necessary to discharge the new function by means of an action on the special case for words, under the statute of 13 Edward I.2
The principal difficulty doubtless arose from the fact that the ecclesiastical courts, having from remote times corrected the slanderer for his soul’s health, had, owing to the decay of the local courts, come to be regarded as having, in some measure, an exclusive right to deal with defamation. The statute Circumspecte agatis, passed in the same year as the statute of Westminster the Second, is an indication of the demand, which had even then become pronounced, that more definite bounds should be set to the ecclesiastical jurisdiction. But the Church strenuously resisted all such attempts. The common law courts resorted to prohibitions. The ecclesiastical courts, on their side, wielded the powerful weapon of excommunication. The protracted struggle has ended in the complete victory of the secular jurisdiction only in our own day. The law of defamation, in common with most of the other subjects originally within the spiritual jurisdiction, still bears the scars of this contest, and some of its doctrines can be explained in no other way.
However acquired, cases of defamation begin to appear in the king’s courts soon after the last Year Books. During the reigns of Elizabeth, James I, and Charles I, the reports teem with such cases, and the bulk of litigation in defamation at once assumed very large proportions.
It was during this period that the rules of actionability were formulated which in aftertimes came to be applied exclusively to oral defamation. There was as yet, of course, no distinction at common law between slander and libel. The law thus evolved by no means covered all defamatory words; only certain specific imputations were actionable. The principle of selection was founded partly upon the character of the imputation, partly upon the consequences arising from it. The exceptions to unbridled license of speech founded upon the nature or substance of the charge were: imputations of an indictable offence or crime; imputations of having certain contagious disorders, i. e., syphilis, leprosy, and the plague; any imputation affecting a man’s reputation for skill and address in his business, office, trade, profession, or occupation, which tended to cause his position to be prejudicially affected. The other exception, founded upon consequences, allowed an action for any imputation which had in fact directly caused special damage.1
How the law came to be thus circumscribed is not entirely clear. The conditions under which the common law jurisdiction was acquired—i.e., the struggle with the ecclesiastical courts, and the necessity of exercising jurisdiction through the medium of an action on the special case for words, probably lie at the root of the matter.2 In a general way the early cases throw some light. Naturally the law seems new and unsettled. The judges assert that many kinds of defamatory imputations are merely spiritual, and as such are within the legitimate province of the courts Christian, while others are strictly temporal. It is curious to find the judges thus early discouraging the action by the application of the most absurd subtleties and refinements. Slanders were construed like legal writs. The judges were guided by the principle which they called mitior sensus, according to which language which could by any process of scholastic ingenuity be tortured into a harmless significance went without remedy. The probable explanation of this attitude is the large amount of litigation of this kind, which perhaps biased the judges against the action. Coke expressed the prevailing feeling in Croft v. Brown:
“We will not give more favor unto actions upon the case for words than of necessity we ought to, where words are not apparently scandalous, these actions being now too frequent.”3
The judges seem to have begun to draw a distinction between words actionable per se and those actionable only on proof of special damage in the exercise of a discretionary power of allowing or disallowing actions. Early in the seventeenth century it was stated that
“where words spoken do tend to the infamy, discredit or disgrace of the party, there the words shall be actionable.”1
And nearly a century later Holt observed that
“it was not worth while to be learned on the subject; but whenever words tended to take away a man’s reputation he would encourage actions for them, because so doing would much contribute to the preservation of the peace.”2
But their discretion came at length to be exercised according to fixed rules, and these rules became fixed law.
The conditions and the habits of thought prevailing in early society afford some explanation why it was not imperatively necessary to provide legal redress for slanders and insults of such a nature as to injure the character or hurt the sensibility, unless they were also such as to result in legal damage to the person against whom they were directed. Men were not more courteous by nature or inclination then than now. They were restrained by a code which formed no part of the legal system, but which was nevertheless a very potent instrument. Men could and did avenge themselves without calling in the assistance of the law, and public opinion for centuries sanctioned the “code of honor.” But with the progress of civilization it became apparent that dueling was not only foolish and vicious in principle, but a menace to the public peace as well. As the sanction of public opinion was gradually withdrawn, the laws for the preservation of the peace were continually strengthened. But in the final result, the law suppressed the instincts of nature and gave no substitute.3
Thus stood the law when the rapid development of the art of printing aroused the absolute monarchy to a keen sense of the danger of this new method of diffusion of ideas. In early times libels must have been comparatively rare and harmless: rare because few could write, harmless because few could read. The invention of printing, however, gave a new impulse to composition. Caxton had set up his press at Westminster in 1476, and the art spread rapidly during the sixteenth century. From the very first Church and State alike assumed to control the press, as they had previously regulated the diffusion of manuscripts.
The Church had long suppressed the diffusion of ideas which it deemed pernicious. The first general council of Nice forbade the works of Arius, and subsequent councils had condemned the works of Origen and others. Imperial power co-operated by burning condemned books. But this total destruction of pernicious books was no longer feasible after the invention of printing. The Church endeavored to forestall publication by prohibiting the printing of all works save such as should be first seen and allowed; publications without such license were burned, as before. As this method did not meet with complete success, it was supplemented by indices or catalogues of books, the reading of which by the faithful was prohibited. Such lists were issued in many parts of Europe by sovereigns, universities and inquisitors during the sixteenth century, beginning with that issued by Henry VIII in 1526. Pope Paul IV issued an index in 1559, but the papacy as such took no part in the process until the Council of Trent, the outcome of which was the famous index of Pius IV, in 1564.
In England the censorship of the press passed with the ecclesiastical supremacy to the crown. The censorship became part of the royal prerogative, and the printing of unlicensed works was visited with the most severe punishment. Printing was further restrained by patents and monopolies. The privilege was confined, in the first instance, under regulations established by the Council in Mary’s reign, to the Stationer’s Company,1 which had power to seize all other publications; and the number of presses and the whole matter of printing was strictly limited in all its details. Under Elizabeth the censorship was enforced by still more rigorous penalties, including mutilation and death. All printing was interdicted elsewhere than in London, Oxford and Cambridge; nothing whatever was allowed to be published until it had been first “seen, perused and allowed” by the Archbishop of Canterbury or the Bishop of London, except only publications by the queen’s printers, appointed for some special service, or by law printers, for whom the license of the chief justices of either bench was sufficient. This was the situation when, at the accession of James I, all these repressive measures were found to be inadequate to suppress the rising tide of public opinion. The theological controversies of the sixteenth century were passing into the political controversies of the seventeenth. New forms of literature had arisen. The heavy folio, written for the learned, was succeeded by the tract and the flying sheet, to be read by the multitude. Some effective regulation was imperative. The forced construction of the various treason statutes was too cumbersome as an instrument of suppression. The civil action for defamation, then in its infancy, was, of course, entirely inadequate.
The task was at length undertaken by the Star Chamber. The character of this tribunal rendered its selection almost inevitable. It was composed of the highest dignitaries of Church and State,1 and it exercised practically unlimited authority. Formally constituted a court of criminal equity by Henry VII, the Star Chamber’s jurisdiction was based upon the theory which had become familiar in the civil law through the operations of the court of Chancery. There were wrongs which could not be effectively remedied by the ordinary courts of law, and which could not be overtaken immediately by legislation. The venerated forms of action did not cover all classes of wrongs and crimes; nor was even-handed justice always administered between the weak and the powerful. It was necessary that there should be a court with the unrestrained power to do substantial justice. The Star Chamber was thus empowered. It disregarded forms; it was bound by no rules of evidence; it sat in vacation as well as in term time; it appointed and heard only its own counsel, thereby not being troubled with silly or ignorant barristers, or such as were idle and full of words. Moreover, it was natural that the members of this tribunal should exercise formal jurisdiction over a matter which they had so long attempted in various ways to control, and with the pernicious effects of which they were deeply impressed.
Jurisdiction over this new and alarming form of scandal was assumed, then, by the Star Chamber. What law should govern it? The law administered by the common law courts was of course out of the question. Its researches were quite naturally directed by its ecclesiastical members to that other great system of law in which they had been trained; and, finding it to the purpose, the court boldly imported the Roman criminal law. The new law was first set forth in 1609, in the case De Libellis Famosis,1 as reported by Coke, and, later, was more fully stated by Hudson in his Treatise on the Star Chamber.2
Now the Roman law had two sets of provisions for defamation—the comparatively mild law of injuria, and the severe provisions of the libellus famosus. In early Roman law, as in most primitive systems, verbal injuries were treated as criminal or quasi-criminal offences. The essence of the injury was not the pecuniary loss, which could be compensated by damages, but the personal insult, which must be atoned for—a vindictive remedy which took the place of personal revenge. We find reference, then, first, in the Twelve Tables, to the libellous chant or song, which is the form of defamation obtaining widest currency, and therefore most keenly felt, in early society. This was severely punished as a crime. Minor offences of this nature came under the general conception of injuria, which included ultimately every form of direct personal aggression, whether with or without force, which involved insult or contumely.
In later Roman jurisprudence verbal injuries were dealt with in the edict under two heads. The first comprehended defamatory and injurious statements which were made in a public manner (convicium contra bonos mores). The essence of the offence in this case lay in the unwarrantable public proclamation, in the contumely which was offered to a man before his fellow citizens. In such cases the truth of the statements was no justification for the unnecessarily public and insulting manner in which they had been made. The second head included defamatory statements which were made in private. Since the offence in this case lay in the imputation itself, not in the manner of its publication, the truth was a complete defence; for no man had a right to demand protection for a false reputation. The law thus aimed to give ample scope for the discussion of personal character, while it forbade the infliction of needless insult and pain. The remedy for verbal injuries was long confined to a civil action (actio æstimatio) for a money penalty, which was estimated according to the gravity of the case, and which, although vindictive in character, included the element of compensation. Imperial legislation subsequently established supplementary criminal actions under which certain kinds of defamation were punished with great severity. These were the libelli famosi, particularly epigrams and pasquinades, which, being in their nature anonymous and scurrilous, were regarded as peculiarly dangerous and were visited with severe punishment, whether true or false. The unnecessarily public and offensive manner of their publication (they were generally scattered about the streets) precluded justification.1
We find, therefore, a distinction based upon the manner and extent of publication, but none between speech and writing; for the evil song of an early day coincides with the anonymous pasquil of later times in constituting the criminal offence. The crime was not based upon the form of the publication, but upon the character of the matter published, the extent of its diffusion, and its anonymous nature.
The Star Chamber, as the title of Coke’s case indicates, adopted provisions of the libellus famosus. The action arose out of an “infamous libel in verse” by which the Archbishop of Canterbury, deceased, and the then bishop of that diocese, were “traduced and scandalized.” The principal “points resolved” were the following:
“Every libel (which is called libellus, seu infamatoria scriptura) is made either against a private man, or against a magistrate or public person. If it be a private man it deserves a severe punishment, for although the libel be made against one, yet it incites all those of the same family, kindred or society to revenge, and so tends per consequens to quarrels and breach of the peace, and may be the cause of shedding of blood, and of great inconvenience; if it be against a magistrate, or other public person, it is a greater offence; for it concerns not only the breach of the peace, but also the scandal of government; for what greater scandal of government can there be than to have corrupt or wicked magistrates to be appointed and constituted by the king to govern his subjects under him?”
After holding, without citing any authority, that
“a libeller shall be punished either by indictment at the common law, or by bill, if he deny it, or ore tenus on his confession in the Star Chamber, and according to the quality of the offence he may be punished by fine or imprisonment, and if the case be exorbitant, by pillory and loss of his ears,”
the report continues:
“It is not material whether the libel be true, or whether the party against whom it is made be of good or ill fame; for in a settled state of government the party ought to complain for every injury done him in an ordinary course of law, and not by any means to revenge himself, either by the odious course of libelling or otherwise: he who kills a man with his sword in a fight is a great offender, but he is a greater offender who poisons another; for in the one case, he who is openly assaulted may defend himself, and knows his adversary, and may endeavor to prevent it; but poisoning may be done so secretly that none can defend himself against it; for which cause the offence is the more dangerous, because the offender cannot easily be known; and of such a nature is libelling, it is secret and robs a man of his good name, which ought to be more precious to him than his life, and difficilimum est invenire authorem infamatoriae scripturae; and therefore when the offender is known, he ought to be severely punished.”1
Hudson’s treatise begins with a description of the various ways in which a person might be libelled; he adds that the publishers of libels are as severely punished as the makers.
“Therefore, to hear it sung or read, and to laugh at it, and to make merriment with it, hath ever been held a publication in law.”
He points out
“one difference, which standeth with the rules of the law and reason, and which, under favor, I have ever conceived to be just. That upon the speaking of words, although they be against a great person, the defendant may justify them as true; as in all actions de scandalis magnatum, which are as properly to be sued in the Star Chamber as in any other court, and he shall be there received to make the truth appear. But if he put the scandal writing, it is then past any justification, for then the manner is examinable and not the matter.”
The case De Libellis Famosis is the formal starting point of the English law of libel. By it a new form of actionable defamation, based upon mere form, was introduced in the law. Apart from the disposition of the authorities to adopt the most stringent methods of suppression, there were some plausible grounds for this new doctrine of criminal libel. It was, of course, aimed directly at printing, although it included writing. Writing had been for centuries so rare an accomplishment that much weight was attached to anything written. Before the invention of printing libels were generally published by scattering papers containing them in the streets, or by posting them in public places. Such libels were generally against the government or those in authority. By the Theodosian Code the publication of such libels seems to have been looked upon as treason, and was punished as a high crime. In England such offences were generally brought within the generous scope of the law of treason and sedition. Coke mentions two cases of libels upon private individuals in the reign of Edward III, and in both cases the libeller was criminally punished. Now came a method of dissemination whose potentialities were unlimited, with all the dangers of anonymity, and in a more permanent form than writing. Moreover, seditious libel (and all libels were deemed seditious) is in its nature a sort of attempt, and the Star Chamber applied the doctrine that attempts and conspiracies to do anything unlawful were substantive offences.1
But it is apparent that the Star Chamber adopted the Roman law to its own use without regard to Roman limitations and with certain additions of its own, chief among which was the fundamental principle that libel is punishable as a crime because it tends to a breach of the peace. The Roman criminal law was directed against anonymous pasquinades. When, therefore, the Star Chamber sought to apply this law to a publication which was not anonymous, its inapplicability must have been at once pointed out. That this was done is made plain from what Hudson says about two gross errors that have crept into the world concerning libels.
“That it is no libel if the party put his hand unto it; and the other, that it is not a libel if it be true; both which have long been expelled out of this court. For the first, the reason why the law punisheth libels is, for that they tend to raise a breach of the peace, which may as well be done, and more easily, when the hand is subscribed than when it is not. And for the other, it hath ever been agreed, that it is not the matter but the manner which is punishable: for libelling against a common strumpet is as great an offence as against an honest woman, and perhaps more dangerous to the breach of the peace: for as the woman said she would never grieve to have been told of her red nose if she had not one indeed, neither is it a ground to examine the truth or falsehood of a libel; for that takes away subjectum quaestionis, and determines it to be no libel by admitting the defendant to prove the truth.”
This principle of the tendency of libels to a breach of the peace originated with the Star Chamber. It was not only a very shrewd addition to the law, as an instrument of suppression, but there was undoubtedly some semblance of the truth in the statement, as applied to the condition existing prior to the formation of an organized public opinion. While the law developed only through the pressure of outward needs, the statement of an unwelcome truth concerning another did not serve the useful public purpose that it does now because it did not reach the public eye. But it did undoubtedly tend in a semi-civilized state of society to stir the hot blood of those against whom it was made.1 Moreover, it must be remembered that the preservation of the public peace was still a very difficult and serious matter.
The Star Chamber, then, having taken over jurisdiction of libel with particular reference to discussion of affairs of Church and State, the idea that such libels were crimes and as such past justification, was formally introduced in English law; a tribunal of which common law judges were constituent members, drew a real distinction between spoken and written defamation of a political kind. Through its jurisdiction as a court, and as the representative of the royal prerogative, the Star Chamber was in immediate control of the press during the reigns of James I and Charles I, and suppressed political and religious discussion with the utmost severity. By its famous ordinance of 1637 the matter of printing was regulated anew. The number of master printers was limited to twenty, who were to give sureties for good behavior, and were to have not more than two presses and two apprentices each; and the number of letter founders was limited to four. The penalty for practising the arts of printing, or making any part of a press or other printing materials, by persons disqualified or not apprenticed thereto, was whipping, the pillory, and imprisonment. Even books which had been once examined and allowed were not to be reprinted without a fresh license, and books brought from abroad were to be landed at London only, and carefully examined by licensers appointed by the Archbishop of Canterbury and the Bishop of London, who were empowered to seize and destroy such as were seditious, schismatical or offensive. Periodical searches of booksellers’ shops and private houses were also authorized and enjoined.
Although the Star Chamber was abolished by the Long Parliament in 1640, the judges, the law, and the censorship remained largely the same. By orders of the Long Parliament in 1642 and 1643 the licensing system of the Star Chamber was practically continued. Shortly after the Restoration the licensing system was placed upon a legal basis by statute.1 This act expired in 1679, and does not appear to have been immediately renewed, although the censorship was continued during the remainder of this reign. Under James II the licensing act was twice renewed by statute,2 but lapsed finally in 1695. The incorporation of the Star Chamber doctrine of libel into the common law seems to have been coincident with the waning power of the censorship. It is not at all surprising that Restoration judges, imbued with the Star Chamber doctrines, replaced it with an equally efficient weapon. In 1680, less than a year after the expiration of the Restoration statute, Chief Justice Scroggs announced that the judges had twice declared unanimously, when summoned by the King’s command to give their opinions as to what should be done to regulate the press, that, besides publications scandalous to the government or to public or private persons, all writers of false news, though not scandalous or seditious, were indictable.3 Later in this year the same judge repeated this statement in even more comprehensive terms:
“We did all subscribe that to print or publish any newspaper or pamphlet of news whatsoever is illegal; that it is a manifest intent to a breach of the peace. . . . and that is for a public notice to all people, and especially printers and booksellers, that they ought to print no books or pamphlets of news whatsoever without authority.”1
It is to this juncture that we must look for the creation of that doctrine, first announced in the common law courts by Hale, that although words “spoken once” would not be actionable, “yet they being writ and published” become actionable. The later Roman law of the libellus famosus thus become part and parcel of the English common law. The formal distinction was apparently introduced into the civil law by the same process of reasoning that led the Star Chamber to assume cognizance over non-political defamation. The Star Chamber had been abolished; press licensing was waning. How were these non-political, non criminal libels to be restrained if men no longer had the vindication of the duel? The difficulty was met by the creation of a new tort, written defamation.2
The civil doctrine of libel was first announced by Lord Chief Baron Hale in King v. Lake in the Exchequer, in 1670.3 There are a few earlier cases in which the defamation was in writing, but on no occasion was this regarded as a title to a remedy if the written matter did not come within recognized exceptions.4 King was a barrister who claimed to have been “damnified in his good name and credit and profession” by reason of the fact that Sir Edward Lake had written of a petition to Parliament drawn up by King that it was “stuffed with illegal assertions, ineptitudes and imperfections, and clogged with gross ignorances, absurdities and solecisms.” Hale held that “although such general words spoken once without writing or publishing them would not be actionable, yet here, they being writ and published, which contains more malice than if they had been once spoken, they are actionable.” In Harman v. Delany,1 the court held that
“words published in writing will be actionable (though not so when barely spoken) which would not be so from a bare speaking of the words, because libel perpetuates and disperses the scandal.”
From this time on the series of cases establishing the new tort increases. The matter may be said to have been finally determined by the judgment of the Exchequer Chamber in the case of Thorley v. Lord Kerry, in 1812.2 In this very important case the whole subject was ably argued by eminent counsel. Sir James Mansfield, in delivering the judgment of the court, reluctantly admitted that “the distinction has been made between written and spoken slander as far back as Charles the Second’s time.”
“I do not now recapitulate the cases,” he said in conclusion, “but we cannot in opposition to them venture to lay down at this day that no action can be maintained for words written for which an action could not be maintained if they were spoken. If the matter were for the first time to be decided at this day, I should have no hesitation in saying that no action could be maintained for written scandal which could not be maintained for the words if they had been spoken.”3
The historical development of actionable defamation has now been traced to the time when the distinction as to form became fixed. Written defamation is libel; spoken defamation is slander. Libel is a crime as well as a tort; slander of a private individual may be a tort, but is no crime. Any written words which injure one’s reputation are libellous; but many words which would be actionable if written are not actionable if merely spoken. In the case of slander a plaintiff must satisfy the jury that the words spoken impute the commission of a crime, or the presence of certain contagious disorders, or that they disparage him in the way of his office, profession or trade, in all other cases he must prove special damage, that is, that he has sustained some pecuniary loss as a direct consequence of the utterance of the words complained of.
[1 ]This Essay was first published in the Columbia Law Review, 1903-1904, Vol. III, pp. 546-573, Vol. IV, pp. 33-56, and has been revised by the author for this Collection. The second part of the original essay, commenting on the theory and policy of the present law, is here omitted.
[2 ]A biographical sketch of this author is prefixed to Essay No. 20, in Volume. I of this Collection.
[1 ]Mr. Frank Carr suggests, in his admirable article on defamation in the Law Quarterly Review, xviii, 255, 388, that in this respect we are sharing to some extent the fate of the Roman contractual system; formal in character, but with some contracts privileged to be formless. And the measure of the comparative failure of the Roman contractual system, as contrasted with contract, as interpreted by the doctrine of consideration, is the measure of the inadequacy of our law of defamation.
[2 ]The principles of Roman law lie at the basis of most of the foreign systems of law. In the principal continental systems there is no fundamental distinction as to right of action between written and spoken defamation. The penalty may be (in Germany always is) higher in the case of writing, but the cause of action is the same. In the civil action, as a rule, only actual damages can be recovered. The defamer is punished by concurrent criminal actions, in which the penalties are heavier when the defamation was public (also, in Germany, when it can be shown that the defendant knew his statements were false). The truth is not always a defence. In the case of defamatory statements published in newspapers, French law admits proof of truth only when the statements refer to official acts. In German law the truth is regularly admitted; but it does not avert punishment in criminal actions if the statement was made in an insulting manner. By the law of Scotland every defamatory statement, without regard to the form in which it is made, is actionable. The elements of the offence are the injury sustained and the insult for which solatium is due. The common law distinctions are likewise unknown in Louisiana.
[3 ]Lex Salica, tit. 30 (Hessels and Kern, col. 181).
[1 ]Ancienne Coutume, Cap. 76 (ed. de Gruchy, 197). Inasmuch as these penalties were regarded as compensation to the wronged individual, in exchange for his older right of private vengeance, there is a tendency to make the penalty correspond to the degree of irritation which the wrong would naturally excite. Thus, in early Icelandic law, the man accused of cowardice had the right of slaying his accuser. Prof. Munroe Smith in Univ. Enc., tit. Libel and Slander.
[2 ]Pollock and Maitland, Hist. of English Law, ii. 535, 536.
[3 ]Quadripartitus (ed. Liebermann, 67); Wilk., Leg. Ang. Sax., 41. The laws of Edgar and Canute are to the same effect. Ib. 64, 136.
[4 ]Pollock and Maitland, ii, 536.
[5 ]Select Pleas in Manorial Courts (Selden Soc. Pub.), 19, 36, 82, 95, 109, 116, 143, 170; The Court Baron (Selden Soc. Pub.), 48, 57, 61, 125, 133, 136. Cf. Prof. Maitland in Green Bag, ii. 5, 6, particularly his instructive extract from a hypothetical case found in a book of precedents for pleadings in manorial courts. The manorial rolls indicate that the defendant might allege that his words were true. Select Pleas in Manorial Courts, 82. Thus early slander is said to have been uttered of malice aforethought, and sometimes the plaintiff alleges special damage. Pollock and Maitland, ii, 536.
[1 ]Law Quar. Rev., xviii, 264-267.
[2 ]Jenks, Law and Politics in the Middle Ages, 29.
[3 ]N. St. John Green in Am. Law Rev., vi, 595.
[1 ]For the canon law in general see the luminous chapter in Pollock and Maitland, i. 88. With particular reference to defamation, see the very learned article on slander and libel by N. St. John Green in American Law Rev., vi, 593; also Law Quar. Rev., xviii, 267 et seq. Mr. Carr points out the curious anticipation of the punishments suggested by Bentham.
[1 ]13 Edward I, c. 1.
[2 ]9 Edward II, c. 4.
[3 ]Edward III, c. 11.
[4 ]See English Political Songs (Camden Soc. Pub.), 155; Chaucer’s reference to the Sompnour in the Prologue to the Frere’s Tale. Law Quar. Rev., xviii, 268, 269.
[1 ]Green Bag, ii, 4.
[2 ]16 Charles I, c. 4.
[3 ]13 Charles II, c. 12, s. 4. The limitations of the surviving jurisdiction appear in Crompton v. Butler (1790) 1 Haggard 460.
[4 ]18 & 19 Vic., c. 41.
[5 ]Law Quar. Rev., xviii, 270-272.
[6 ]Ware v. Johnson (1755) 2 Lee 103.
[7 ]3 Edward I, c. 34; Statutes at Large, i. 97. A later statute particularizes the “great men of the realm”: “Prelates, Dukes, Earls, Barons, and great men of the realm, and also of the Chancellor, Treasurer, Clerk of the Privy Seal, Steward of the King’s House, Justices of the one bench or the other, and of other great officers of this realm. 2 Richard II, c. 5.
[1 ]12 Richard II, c. 11; Statutes at Large, ii, 305.
[2 ]See Lord Townsend v. Dr. Hughes, 2 Mod. 150.
[3 ]The first civil action was brought more than one hundred years after the date of the last statute defining the offence. 10 Rep. 75. Lord Townshend v. Dr. Hughes, 2 Mod. 150.
[4 ]Statute Law Revision Act, 50 & 51 Vic., c. 59 (1887).
[1 ]In 1613 James I issued a royal edict against duelling, and this was supplemented in the following year by a Star Chamber decree on the same subject. From this time on the courts waged a continuous hostility to the duel in all its forms; they refused to regard it as in any way an affair of honor, but held it to be an unlawful assembly in an aggravated form.
[1 ]Law Quar. Rev., xviii, 391. For a further account of this jurisdiction, see Carr, supra, 260-263, and Odgers, Digest of Libel and Slander, ch. Iv, where the cases are cited.
[2 ]Jenks, Law and Politics in the Middle Ages, 43, 44.
[3 ]Rat. Parl., i, 133; Green Bag, ii, 4.
[1 ]Holt on Libel 23; Law Quar. Rev., xviii, 388. According to Mr. Carr these few cases are unimportant. The earliest case, from the Year Books, was complicated with contempt of court. Of the two latest, from Brooke’s Abridgment, the first was to the effect that a charge of being a “hereticke or advowterer” was actionable only in a spiritual court, while for calling one a bawd an action lay in both courts. The second holds that an action would lie for calling a man a “theefe.” See also the entry from the Exchequer roll of 1265 in Prynne’s Animadversions on Coke’s Fourth Institute, 58; Pollock and Maitland, ii. 535.
[2 ]Prof. Maitland in Green Bag, ii, 7; The Court Baron (Selden Soc. Pub.), 116.
[1 ]Imputations tending to disinherison come properly under this branch of the law.
[2 ]Green Bag, ii. 4. But, as Prof. Maitland says, the process is not clear. For instance, we are told that the imputation conveyed by the word “meretrix” is merely spiritual. But it was not so regarded by the local courts in the middle ages. Ib. 7.
[3 ]3 Bulstrode 167.
[1 ]Small v. Hammond, 1 Bulstrode 40.
[2 ]Baker v. Pierce, 6 Modern, 23.
[3 ]A plausible explanation of the method by which the common law courts acquired jurisdiction in defamation, which would also explain the process of selection of actionable words, was advanced by N. St. John Green in the very interesting article to which reference has already been made (Am. Law Rev., vi, 593, 607 et seq.) It was an established principle of law from the time of Bracton that the accessorium must come under the same jurisdiction as the principale; that is, jurisdiction over a thing drew with it jurisdiction over all things accessory. It was by means of this rule that the court of King’s Bench, by the fiction that the defendant was in its custody, and the court of Exchequer, by the fiction of indebtedness to the crown, were enabled to extend their respective jurisdictions over most of the matters originally pertaining exclusively to the Common Pleas. Upon this principle the common law courts may have worked in wresting from the spiritual courts jurisdiction over defamation.
[1 ]Formed in 1557. It was composed of ninety-seven London stationers and their successors.
[1 ]The chancellor, treasurer, lord privy seal, a bishop, a temporal lord, and the two chief justices, or, in their absence, two other judges as assistants. Later the president of the privy council was added.
[1 ]5 Rep. 125, a.
[2 ]Chapter XI “Of Libelling,” page 100 et seq. This treatise was apparently compiled early in the reign of Charles I.
[1 ]Hunter, Roman Law, 20, 148, 149, 1069, citing the provisions of the Institutes and the Digest; Holt on Libel, ch. i; Odgers, Digest of Libel and Slander, 165, 166; Prof. Munroe Smith in Univ. Enc., tit. Libel and Slander; Law Quar. Rev., x, 158; ib. xviii, 256, 257.
[1 ]After describing the different forms of libel, the report concludes in Coke’s usual sententious style with a passage showing that libelling and calumniation is an offence against God. He cites several passages from Scripture, and concludes: “And it was observed that Job, who was the mirror of patience, as appears by his words [Job 30, ver. 7 & 8], became quodammodo impatient when libels were made of him; and therefore it appears of what force they are to provoke impatience and contention.”
[1 ]Hudson, Treatise on the Star Chamber, 104, 107.
[1 ]Bishop, Criminal Law, § 921.
[1 ]13 & 14 Car. ii, c. 33. This act was limited to two years; but it was continued by 16 Car. ii, c. 8.
[2 ]1 Jac. II, c. 17, s. 15. This act was limited to eight years. It was renewed in 1693 for two years.
[3 ]R. v. Harris, 7 How. St. Tr. 927.
[1 ]R. v. Carr, 7 ib. 1114. Long afterwards Lord Camden pronounced this resolution of the judges “extra judicial and invalid.” Entick v. Carrington, 19 How. St. Tr. 1070.
[2 ]Frank Carr in Law Quar. Rev., xviii, 393, 394. See also J. R. Fisher in Law Quar. Rev., x. 158.
[3 ]Hardres 470; Skinner 124.
[4 ]Law Quar. Rev., xviii, 394, 395.
[1 ]Fitzgibbon 254.
[2 ]4 Taunton 355.
[3 ]For the adoption of the distinction in American law, see Dole v. Lyon (N. Y., 1813) 10 Johns. 447; Cooper v. Greeley (N. Y., 1845) 1 Denio 347 at 362; Clark v. Binney (Mass. 1824) 2 Pick, 113; Colby v. Reynolds (1834) 6 Vt. 489.