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CHAPTER 5: DEFAMATION - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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There are few chapters in our legal history which illustrate so many different aspects of historical development as does the history of defamation. Germanic elements, Roman elements, the rise and fall of courts, constitutional conflicts, mechanised printing, and later still mechanised distribution of printed matter, have all played their part in producing the body of law which historical accident has divided into the two categories of libel and slander.
SLANDER IN ANGLO-SAXON LAW
In common with most of the Germanic systems, Anglo-Saxon law was particularly concerned with insulting words addressed by one person to another. This was an offence which it punished with severity, sometimes with the excision of the tongue.1Bot and wite were due for certain terms of abuse before the Conquest, and long after the Conquest local courts frequently entertained cases of insult; such jurisdiction was naturally left to the local courts, for they alone could secure amends before the same community that had witnessed the affront. Such amends were a fine, and sometimes a humiliating confession. Thus at Preston, in England, as well as in Normandy, the offender must hold his nose and call himself a liar.2
SLANDER IN CHURCH COURTS
The Church exercised criminal jurisdiction over many matters which modern law has relinquished to the forum internum. A great deal of scandalous gossip about the private life of one’s neighbours, and a good many obscene and abusive expressions, were therefore in a special category, for they might have the effect of putting a person upon his trial before an ecclesiastical court.1 The Church no doubt regarded defamation of this character as dangerous, mainly because it led inevitably to the abuse of her criminal procedure.2 Indeed, the very word “defamation” is a technical term in church law, signifying that evil reputation which is sufficiently notorious to put a man on his trial. Mere rumour is not sufficient.3 The diffamatus is thus a person whose reputation is so bad that it serves as an accusation; but if as a result of the trial he is acquitted, then clearly his ill-fame was unfounded, and those who spread the calumny have themselves committed a crime: “furthermore, we excommunicate all those who for lucre, hate, favour, or any other cause maliciously impute a crime whereby anyone is defamed among good and grave persons in such wise that he has been put to his purgation at least, or otherwise aggrieved”4 —thus Stephen Langton enacted in 1222 at the council of Oxford, and we have already seen traces of the application by the Church of this principle to members of a grand jury whose indictments were not followed by conviction.5
SLANDER IN LOCAL COURTS
Gradually it becomes apparent that local courts are giving remedy for words which are not merely insults addressed to the plaintiff, but rather statements to his prejudice addressed to other persons. The remedy also takes the form of a civil action for damages rather than that of a prosecution for a petty misdemeanour.6 Thus in the manorial court of King’s Ripton, a plaintiff alleged that the defendant uttered defamatory words about him to a third party, and also sent a defamatory letter concerning him to another, with the result that he suffered general damage of 20s. and special damage of 30s. in respect of a lease which was not renewed.7 Still more interesting is a case in 1333 where the county court of Bedford tried an action in which the plaintiff alleged that the defendant called him a false and faithless fellow, whereby he was prevented from raising a loan which was being negotiated.1
SLANDER IN THE KING’S COURT
For serious matters, the church courts were the most practicable jurisdiction.2 The King’s courts were prepared to admit this—up to a point. In 1285 the writ called Circumspecte Agatis (which soon was reputed a statute) confirmed the principle that the punishment of defamation as a sin (i.e. by the Church’s criminal procedure) was not subject to prohibition from the temporal courts; an exception was made, however, if “money is demanded” (i.e. in the civil proceedings for damages), and in that case prohibition presumably would lie.3
Ten years later a lively dispute in the King’s Court in Ireland which (against all the rules of pleading) finally developed into an appeal of treason was called to England and the process quashed because it had begun as a complaint of defamation, “and in this realm it is not the practice to plead pleas of defamation in the King’s Court”.4 This statement in fact needs qualification. No doubt it is true that the King’s Court would not follow the example of local courts, and when A. and B. have exchanged abuse, settle the damages due for each epithet, and determine the balance on account which remained to be paid.5 But the King, like other lords, could not stand by while someone was saying that “there is no justice in the lord’s court”,6 nor could he tolerate similar statements about his principal officers. In 1275 we therefore find the beginning of a line of statutes creating the offence of scandalum magnatum, the slander of magnates.7
THE SLANDER OF MAGNATES: SCANDALUM MAGNATUM
The course of a statutory remedy or offence may sometimes be quite unexpected. Thus scandalum magnatum begins with a statute of 1275 which enacted that one who publishes false news or scandal tending to produce discord between the King and his people or the magnates shall be kept in prison until he produces in court the originator of the tale.1 The statute was therefore essentially political in its nature, and succeeding legislation retained this characteristic. In 1378 the hundred-year-old statute was re-enacted, the word “magnates” being glossed as peers, prelates, justices and various named officials.2 The moment was one of restless intrigue, much of it centring round John of Gaunt, and three years later came the Peasants’ Revolt (1381), in the course of which (it is said) a demand was made for the repeal of the statute.3 This would suggest that the statute was not a dead letter; it was in fact re-enacted shortly afterwards, in 1388,4 with a very important additional clause that offenders may be punished “by the advice of the council”.
The statutes, therefore, are still political in scope, and criminal in nature. There is very little evidence of the working of these statutes during the middle ages, but cases begin to appear in the common law courts under Elizabeth. This is perhaps connected with the fact that the statutes on scandalum magnatum were once more re-enacted5 in 1554 and again6 in 1559, but with additional clauses on “seditious words”; justices of the peace were given jurisdiction, and the punishment was loss of ears for words, and of the right hand for writings. Towards the middle of the sixteenth century scandalum magnatum came under the influence of the doctrine that if a statute prescribes a punishment for acts which cause harm to others, then the injured party can have a civil action for damages in respect of breaches of the statute, even though the statute makes no provision for a civil remedy. It was the civil side of scandalum magnatum which the common law courts developed, and in doing so they established several harsh rules. Thus, words which were too vague and general to support an action for slander at common law would support an action on the statute; consequently vague criticisms or expressions of dislike or disrespect, although they did not make any definite imputation, were actionable if spoken of a “magnate”. Moreover, the defendant could not justify by pleading that the words were true, in spite of the fact that the statute only penalises “false news and horrible lies”. The young Mr Coke, a few months after his call, did indeed hold a brief—his first in the King’s Bench—for a neighbour in which he succeeded in getting the court to allow a sort of explanation to be put in, tending to show that the words were susceptible of another meaning,1 but the position of defendants was very little strengthened by the concession.
The common law courts were therefore slow to apply the statutes relating to scandalum magnatum, and when they did do so they were most interested in the civil action based upon it.2 The criminal aspect of the matter, as the statute of 1388 makes clear, was pre-eminently the province of the council, and it is unlikely that the justices of the peace would be allowed much scope for the independent exercise of their statutory powers under the act of 1559. The throne of Elizabeth was too unsteady, and the political situation much too dangerous for the council to resign the trial of political offences into the hand of the country justices. The council, therefore, and more particularly the Star Chamber, employed themselves in dealing with the slander of peers and seditious words and writings. It is well known that the Star Chamber made frequent use of the cruel punishments of mutilation for these offences, but it should be remembered that there was some statutory sanction for them. If this fact is often forgotten, it is because the Star Chamber itself was loth to rely upon legislation. This policy was particularly evident under James I and Charles I, when on several occasions an exercise of the prerogative which was quite defensible on strictly legal grounds was in fact defended on the much more debatable grounds of “absolute power”. Bate’s Case is a well-known example;3 another is the case De Libellis Famosis,4 which Coke prosecuted as Attorney-General and subsequently reported. It was clearly within the definition of scandalum magnatum, yet this offence is not expressly mentioned; the court also referred to the possibility of mutilation, but avoided mentioning the statutes of 1554 and 1559. Instead, the Star Chamber laid down some general propositions on libel, private and public, which were evidently based on civilian learning. Rather than rely on statute, the court laid it down that “libelling and calumniation is an offence against the law of God”, and sought their legal basis in Exodus and Leviticus. Roman law had distinguished between the defamation which could be remedied by a civil action, and the libelius famosus which it visited with extraordinary punishment. The Star Chamber apparently used this latter conception to extend, far beyond the bounds of the statutes, our native scandalum magnatum.
THE BEGINNINGS OF LIBEL
Looking back from the year 1605 we can see that the law has not yet advanced very far. The distinction between libel and slander has not yet settled at the place where it now rests, and it is hardly clear where it will ultimately lie. At this moment, libel is obviously a crime, and, as we shall see a little later, slander was obviously a tort. The crime was punished principally in the Star Chamber; the tort was actionable mainly in the courts of common law. For the origins of libel we have to go to the obscure mediaeval offence of scandalum magnatum which had definitely political origins. The events of the Barons’ Wars left a sufficient crop of rumours and scandals (of which we have a surviving example3 ) to make the first statute of 1275 desirable. The feverish years of Richard II, with their mischievous tales of financial corruption, called for the re-enactment and extension of the offence and its association with the council—which is perhaps the reason why the ordinary sources for legal history tell us so little of scandalum magnatum during the middle ages. The troubles of the Reformation made it necessary for Mary to reaffirm the old legislation with the significant addition of a clause dealing with seditious words. Elizabeth, immediately on her accession, re-enacted Mary’s statute, but later in her reign there took place a rapid development of a curious sort: the common law courts gave a civil action for damages on scandalum magnatum, but the Star Chamber concentrated mainly on the crime, preserved the spirit of the statutes (although abandoning the letter), and borrowed the name, and some of the principles, of Roman law, thus creating the crime of libel, which it henceforward will develop in a logical fashion.
THE SOURCES OF THE LAW OF LIBEL
The sources from which libel sprang are therefore very diverse. On the one hand we have the ancient Germanic insistence upon personal prestige, which gives us the punishment of insults in local courts, and which, in the crime of scandalum magnatum, left a very definite mark in the fact that words derogatory or disrespectful were actionable (or criminal) if spoken of a peer, although they were not otherwise defamatory. This irresistibly reminds us of the fact that there was once a tendency for ordinary persons to treat almost any tort as a personal affront: the abbot of Bury will complain in the King’s Court that the bishop of Ely infringed his liberty “so that the abbot would not have the shame which the bishop did him for £100, nor the damage for 100 marks”,1 and in local courts such allegations of shame are very common.2
The ecclesiastical element is discernible in the early law of libel, but its influence was greatest (as we shall see) in the law of slander. The Star Chamber pleadings in print show that as early as 1493 that court entertained complaints of defamation of private persons,3 and it is curious to note how constantly defendants plead that the plaintiff’s bill is “seditious and slanderous”;4 malicious prosecutions and complaints before the prerogative courts were very frequently alleged as an argument against the jurisdiction which they exercised, and it may be that these courts were led to take notice of defamation of private persons in consequence of their suspicions that their procedure was particularly liable to be misused. As we have seen, malicious prosecution and defamation were closely connected in the church courts.
The greatest element in the formation of libel law, however, was political. Down to 1605 the main thread is the obscure history of scandalum magnatum. The statutory changes in this crime were apt to occur at moments when treason also was being extended, and the statutes of Mary and Elizabeth treated the crimes of “public libel” (scandalum magnatum), “private libel” and sedition as being substantially the same, or at least closely related.
The Roman element appeared at a critical moment. Libel having become primarily a political offence, it immediately became involved in the early Stuart mysticism of the Crown, and for centuries there had been a temptation to turn to Roman law when the arcana of government were under discussion. Naturally it was in the Star Chamber that the experimental work took place, but the eagerness of the common law courts to share in it is worthy of notice. In 1606 Coke asserted that libel could be prosecuted on indictment as well as in the Star Chamber, and already the common lawyers had extracted from the statute a civil remedy for the slander of nobles.
THE LAW OF LIBEL, 1605-1641
The generation between De Libellis Famosis and the abolition of the Star Chamber was the period during which the foundations of the modern law were laid down. The old distinction between public and private libels, even more than the distinction drawn in the statutes, helped to separate seditious from other libels. The vague authority of the law of God is gradually replaced by the alternative theory that libels are punishable because they disturb the State (if directed against magnates and magistrates), or because they provoke a breach of the peace (if directed against private individuals). This was by no means a fictitious or merely technical justification; the great vogue of the fashion of duelling at this moment seems to have given cause for great concern to the government. Already, too, it was settled that truth was not a defence. This was a break with Roman authority, and also with the construction which would seem required by the English statutes; the excuse given for the rule is that a grievance should be redressed by law, and not by the party himself using force, or circulating extra-judicial accusations. As this period progresses, there are signs of the modifications of this rule. Hudson (writing before 1635) states that spoken words (even against a magnate) can be justified by showing their truth, but written words are punishable in respect of the very fact that they were written.1 Here we seem to see the influence of certain ordinances against writings and printed books which we shall mention later. The theory seems to regard writing as so deliberate an act that writing defamatory matter was criminal; words, on the other hand, were felt to be more spontaneous and irresponsible, and so justification could be pleaded. The rule as stated by Hudson is, of course, chiefly noteworthy as being an early sign of the different treatment of spoken and written defamation.
We are not yet at the point when libel and slander were distinguished along modern lines. Words still could be treated as libels,2 and writings were actionable at common law as slander.3 The distinction as yet is primarily one of courts and procedure. Action on the case for slander was clear and definite; it was in the Star Chamber that the newer and vaguer body of law was developed under the heads of scandalum magnatum, libel and seditious libel, which in the end coalesced into the law of libel. Hudson’s distinction is certainly one indication that the rules of libel apply particularly to written defamation, and it may be that the distinction is itself a reflection of the fact that slander at common law had a different rule which in practice was generally (although not always) concerned with spoken words. Hudson’s distinction may therefore be the result of common law example influencing the Star Chamber.
One other point calls for notice. The Star Chamber was not confined altogether to its criminal jurisdiction, and in cases of libel the court sometimes gave damages to the injured party as well as imposing a fine on the offender.
ACTION ON THE CASE FOR WORDS
So far, we have traced those elements which contributed to the formation of a law of libel. It is now time to examine the other line of development which culminated in slander.
At the beginning of this chapter we gave some examples from local courts. They are of two distinct orders. In some of the cases the plaintiff is complaining of words which he regards as affronts and insults; in others, the plaintiff asserts that he has suffered in loss of money rather than loss of pride. Hence we find that defamatory statements which result in the breaking-off of business negotiations could be made the subject of an action for damages in the manorial or the county court. When the common law courts began to entertain actions for slander, they made provision for both types, but only slowly did they devise special rules for each.
The early cases are all of them interesting from different points of view. Thus, the first reported case1 on defamation in the Year Books arose because one Lucy called Seton, J., a justice of the common pleas, who was entering the exchequer for a council, “traitor, felon and robber”. Seton proceeded against her by bill demanding £1000 damages. A jury of attorneys found her guilty but reduced the damages to 100 marks. The court, however, reserved the question whether the damages should be arrested. Several cases late in the fifteenth century allege that the defendant defamed the plaintiff by calling him his villein. In 1462, for example, a plaintiff counted that the defendant “contriving to prejudice the plaintiff’s name and fame and to get his goods and lands, published and affirmed that he was the defendant’s villein” and lay in wait to catch him, whereby the plaintiff was prevented from going about his business.2 It seems to have been agreed by all that the action would not have been good unless the plaintiff said that he had been impeded in his business. Whether this means that the defamation is only actionable if special damage is pleaded, or that the defamation is not itself actionable unless accompanied by another tort, was left conveniently obscure.
Later in the reign the matter was raised again in a case which lasted several years. In 1475 a plaintiff3 used exactly the same sort of count as we saw in 1462. The defendant had difficulty in framing a plea,4 but eventually issue was joined on the plaintiff’s status, and a jury found that he was free. Judgment for damages therefore followed. Two years later the case came up to the King’s Bench on a writ of error.1 After long debate, Billing, C.J., and Needham, J., both agreed that “there are divers cases in our law where one may have damnum sine injuria; thus the defamation by calling a man thief or traitor is a damage to him in our law, but no tort”. Even so, the court reserved its judgment, “for as much as this is the first time this matter has been argued”. Nothing further is reported. The general trend of the argument in the King’s Bench seems to be that the defamation may aggravate a trespass, but is not a cause of action in itself; in this particular case, the principal trespass alleged consisted merely of threats, preparation and intention. Even admitting that the plaintiff was consequently unwilling to go out of doors, there was great doubt whether an action lay.2
Meanwhile, the common law courts looked with jealous eyes upon the jurisdiction of the church courts over defamation. Prohibitions were issued freely in the reign of Edward IV, and in one case3 we have the interesting remark that “if a man has robbed me, and I afterwards tell it in the hearing of other people, and he then would sue me [for defamation] in court christian, I shall have a prohibition, for I might have had an appeal”. This seems to be the first indication that the King’s Court will prohibit defamation suits in church courts where the imputation was a crime cognisable in common law courts. If once this position was established, then it would soon become necessary for the common law courts to give remedy for those defamations which they forbade the church to deal with. The development therefore follows the line that (a) an imputation of a crime cognisable in the common law courts ought not to be treated by the church as defamatory, for the church might thereby impede the right of prosecuting at common law;4 it was soon afterwards observed (b) that even in cases which did not involve defamation a defendant might try to justify a trespass, for example, by alleging matter of a spiritual nature,5 and cases of this sort gave a great deal of trouble, but their ultimate effect was to make it clear (for a time at least) that a court could not usefully meddle with matters if it had no jurisdiction to try those issues which must inevitably be raised; it was therefore admitted (c) that an imputation of purely spiritual crimes was clearly outside the jurisdiction of the royal courts, and was not subject to prohibition.
The stages by which the common law finally overcame these difficulties are no longer ascertainable, but a case of 1497 contains an emphatic dictum1 that “defamation is a purely spiritual offence which can only be punished there”, although by 1535 it seems assumed that if the imputation is one of an offence triable at common law, then the common law courts will treat it as an actionable defamation.2 From that date onwards, slander has a continuous history in the common law courts, and little more than a century later it was possible to write a little book on the subject.3
It will be noticed that the first type of slander to be actionable in the common law courts was the sort which imputed a common law crime (as distinguished from an ecclesiastical crime). The royal courts were probably forced to assume this jurisdiction because they had already prevented the church from exercising it. At the same time, they were well aware that this type of slander was commonly associated with acts which constituted a trespass to the person—indeed, it was almost common form when counting on an assault and battery to add allegations of insult too. Hence slanders of this type retained as a relic of their early association with trespass the rule that the damages were at large, and this in spite of the fact that actions on the case were normally actions for special damages. As the law became more closely classified, such slanders were said to be actionable per se.
The list of slanders actionable per se was steadily lengthened during the seventeenth century, sometimes for reasons of policy frankly stated, and sometimes as a result of argumentation of an artificial kind. An immense chapter was added when imputations against holders of offices and members of professions and trades were treated as actionable per se; the number of cases brought by justices of the peace and clergymen would almost suggest that the innovation was due to the fact that they needed the same protection as scandalum magnatum afforded to the highest ranks of the church and the law.
SPIRITUAL SLANDER AND SPECIAL DAMAGE
As we have seen, a slander may be regarded either as an insult, or as a cause of pecuniary damage. Both aspects were known in the local courts during the middle ages, and as we have just seen, the former type was recognised in the royal courts in the sixteenth century and onwards. The latter type seems first to appear in a case1 of 1593. Here words were used which the court chose to regard as not imputing any offence cognisable in the lay courts.2 Nevertheless, the plaintiff recovered her special damage, viz. the loss of a marriage which was prevented as a result of the scandalous statements. Originally it was felt necessary to defend this innovation against the church. It was still the theory that general jurisdiction over defamation belonged to the church (subject to prohibition in certain cases). The new rule annexed the whole of the church’s remaining jurisdiction if the plaintiff proved special damage; as the lay courts put it, defamation may be a “spiritual” crime, but the damage it causes is temporal.
The old dilemma between spiritual and temporal crimes which used to decide whether the action should be brought in a church court or in a lay court, henceforward will decide in many cases whether special damage need or need not be pleaded before the lay court. The results were far from satisfactory.
THE LAW OF SLANDER DOWN TO 1641
Having already surveyed the progress made by the law of libel down to the date of the abolition of the Court of Star Chamber, it now remains to ascertain the content of the law of slander at the same date.
The continued existence of the ecclesiastical courts on the one hand, and of the Star Chamber on the other, was sufficient reason for the failure of the common law to develop the criminal side of defamation which was more adequately dealt with elsewhere. They therefore concentrated upon the action for damages, and had already distinguished the two familiar categories of the modern law. Slanders actionable per se were originally imputations of temporal crimes, but by the close of this period reflections on fitness for office, skill in trade or profession, and imputations of certain diseases were added to the list.3 These exceptions from the general nature of actions on the case show a clear understanding of the problem, and leave no doubt that the common law had the will and the skill to create a saisfactory law of defamation as long as it had a clear field before it. The fact that it did not complete the scheme is due to the difficulties created by the ecclesiastical jurisdiction. There is every reason to believe that those difficulties were real at this moment; the church courts were still powerful, and the Reformation and the royal supremacy had surprisingly little effect on the relation of church and state judicatures. For a time there must have been great force in the argument that it was useless to entertain an action where a “spiritual” offence was imputed, unless the court had the means of trying the truth of the imputation, which would most commonly be put in issue by the defence.
Real as this difficulty was, the common law courts were ready to circumvent it. They had by this time resolved to entertain actions where the imputation was one of merely spiritual offences,1 if special damage was proved, and were apparently ready to deal in their own way with an issue on a plea of justification. The formal reason for the distinction between the two classes of slander therefore became fictitious rather than real. The distinction unfortunately persisted, and we may well ask why the common law, which was making such energetic advances in the law of slander, should have stopped short at this point.
The answer most probably lies in the fact that the common law courts were dismayed at the mass of slander cases which came before it. This almost certainly was a new phenomenon; lawyers do not generally complain of too much business, and as a rule we have seen courts competing keenly for business. They realised, however, that there was some sort of social problem involved in defamation. The Star Chamber seems to have felt that severity was the proper remedy; the common law preferred to discourage such litigation, hoping, perhaps, that the effervescence of the Shakespearean age would soon subside.2 Now the requirement of special damage was an admirable means of excluding a large class of cases which might plausibly be regarded as frivolous, and so the retention, and indeed the increased emphasis on this distinction, may well be attributed to the policy of discouraging actions for defamation.
They even went further, and deliberately debased the quality of the law in order to stem the demand. In this period, and in the eighteenth century also, much ingenuity was spent in arguing that words be taken in mitiori sensu, and should not be construed as defamatory unless no other meaning could be read into them. Great pains were necessary in pleading to escape this rule. Thus, in one well-known case, it was held not actionable to say that “Sir Thomas Holt struck his cook on the head with a cleaver and cleaved his head; the one part lay on one shoulder and another part on the other”, for it does not appear that the cook was dead, and so the imputation may be only of a trespass; as the court observed, a little ambiguously, “slander ought to be direct”.3 So too if a married woman says: “A. stole my turkeys”, the words are not actionable, for a married woman could have no property in chattels;4 a few years earlier, however, this rather fine point had been rejected.5
The law regarding publication was already receiving attention, although it had not yet reached a satisfactory position. Publication to a third party was clearly necessary, for in no other way could damage result; but a curious doctrine—perhaps imitated from the statute De Scandalis Magnatum—was sanctioned by the dicta in the Earl of Northampton Case1 that one can justify a slander if it is merely a repetition of what someone else said. Thus if A. says that B. said something defamatory of C., then A. could justify by proving that B. did in fact use those words.
Somewhat in a class by itself was slander of title. This consisted in false statements by a third party to an intending purchaser of land throwing doubt upon the vendor’s title, in consequence of which the negotiations for the sale are broken off. Examples occur from 1585 onwards, and one of the earliest cases2 had already made it clear that the action would not lie where the third person himself pretended, rightly or wrongly, to be entitled.
The state of the law of slander at this period is quickly seen from an examination of any old abridgment, when it will be clear that a vast mass of case law was accumulating at such a pace that lawyers had to compile dictionaries, as it were, of abusive and obscene expressions (including slang) in order to ascertain how particular language had been treated in previous cases. It will also be apparent that many highly damaging expressions were held to be not defamatory at all, or only with special damage, while others, seemingly less serious, fell under the ban. As Sir William Holdsworth remarked,3 perhaps the worst kind of case law is that which grows up around the interpretation of words, deeds, wills—and we may add, statutes.
THE RESULTS OF THE FALL OF THE STAR CHAMBER
With the abolition of the Star Chamber as from August 1, 1641, a new situation was created. For twenty years confusion was inevitable. Cromwell’s Council of State had to continue the more questionable practices of the Star Chamber, and at the Restoration it was clear that much useful work done by the Star Chamber would have to be continued by constitutional means. It was therefore tacitly assumed that the Court of King’s Bench succeeded to as much of the Star Chamber’s jurisdiction as was consistent with current constitutional thought. Consequently the Star Chamber’s law of libel was henceforth to be administered by the same court as had developed the common law of slander; inevitably the two bodies of law were bound to influence each other, and tended to become more coherently combined into something approaching a systematic law of defamation.
As we have seen, the law of slander operated very capriciously, and it is natural that more enlightened judges should try to amend it, or, failing that, to use their new jurisdiction in “libel” to mitigate its defects. Holt, Hale and Twisden tried to establish a rational rule that “words should stand on their own feet” and be deemed to have the meaning which bystanders would naturally give them, but were unsuccessful.1 Partial relief came from the fact that the law of libel was not encumbered with the mitior sensus rule, and was also free from the requirement of special damage. It therefore only remained to find some way which would bring cases out of the category of common law slander into the category of libel. As early as 1670 Hale allowed an action on words which were too vague to be a common law slander, because in this case the words were written.2 He took the view that many defamatory words spoken in heat could be safely ignored, but if they were written, then the obvious presence of malice would make them actionable, and actionable without special damage. The law of libel was thus used to supplement the law of slander. But as in so many other cases, the law was ready to admit a novelty, but reluctant to abolish an anachronism. The newer and more rational law of libel was welcomed gladly in cases of written defamation, but the mitior sensus rule and the rules about words actionable per se, and words actionable on special damage, remained in force if the defamation was by speech only. The distinction between spoken and written defamation therefore became vital, and has proved to be permanent.
The Star Chamber generally treated libel as a crime, although occasionally the award of damages shows that it might be considered also as a tort. But it is clear that the Star Chamber did not take any pains to distinguish the criminal from the tortious aspect of defamation, for there was no particular need for it. In the common law courts, however, the line between crime and tort was fairly clear, and highly important. Hence the Star Chamber rule that truth is no defence had to be reconsidered when libel came into the common law courts. They naturally retained their own rule about justification when dealing with libel as a tort (thus keeping it parallel with slander), and followed the Star Chamber rule for criminal libels.
The Star Chamber had little law on privilege as a defence, although there is some indication that it recognised statements made in the course of judicial proceedings as being to some extent privileged. The common law began to recognise privilege3 as early as 1569, and by 1606 held that the privilege could be lost if malice was present.4 These beginnings, however, did not develop to any great extent until the time of Lord Mansfield.
The law of slander has undergone very little substantial change in England since the close of the seventeenth century. The distinction between slanders actionable per se and those actionable only for special damage has undergone very little change. One exceptionally hard case, however, has been remedied by the legislature. The imputation of unchastity in a woman was not generally an imputation of a temporal crime, and so was not actionable per se. A few local jurisdictions, notably London, claimed a custom of carting “whores”. The city courts, therefore, treated the use of this expression as actionable per se, and after some hesitation extended the rule to a few other terms of similar import, but it is doubtful whether the common law courts would recognise the custom.1 Not until 1891 did the Slander of Women Act make imputations of unchastity actionable per se.2 In America, many states have enlarged the class of slanders actionable per se, and some states have gone so far as to abolish the requirement of special damage.
LIBEL AND THE PRESS
The invention of printing was not at first put to the ephemeral although dangerous use of political controversy, but as soon as the reduction of costs permitted this new development, governments throughout Europe had to deal with the problem of the press.
A long line of proclamations and statutes dealt with the new menace. According to one enactment, printing might constitute a statutory treason,3 and succeeding statutes settled a policy of treating printing as an overt action of treason.4 Still more numerous were the proclamations which regulated the book trade. As early as 1538 a proclamation required a licence from the Privy Council or a bishop before any English book could be printed,5 and for a century and a half there is a steady stream of proclamations directed against unlicensed printing, and heretical and seditious literature. The system of licensing plays was regulated by proclamation6 in 1661, although it was in fact a century old by this time, and many statutes from 1543 onwards7 punished profane interludes and plays. Statutory in its origin, the control of the stage was finally appropriated as part of the prerogative after the Restoration. A proclamation of 1668 tried to prevent the hawking of newspapers in the streets,8 and in 1688 the peddling of books was forbidden,9 after a vain attempt to license the pedlars.1 Meanwhile the legitimate book trade, like other trades in the middle ages, was put under the regulation of a city company, the stationers,2 while enforcement lay with the Privy Council, the Star Chamber, and (for theological matters) the High Commission, who took the view that all printing, however innocent, was a crime unless the work had been previously licensed. Conversely, the government would sometimes give monopoly rights of printing works which it considered meritorious or useful, and in this way the beginnings of copyright appear.
Amid such a vast mass of regulation, there was little need for the law of libel, as far as the press was concerned. The abolition of the Star Chamber and the Court of High Commission, however, left a void which the common law was later called upon to fill. The fall of these courts, moreover, removed the notion that press offences were peculiarly matters of the royal prerogative, and so legislation became increasingly important. Now as long as the Star Chamber and High Commission lasted, legislation on the press had been almost entirely by proclamation.3 The events of 1641, therefore, created the utmost confusion, and the stationers’ company put in a powerful memorial to the victorious Parliament showing that public safety depended on the continued control of the press, that the economic position of printers, publishers and authors had come to depend on the existence of copyright, and that the practical working of copyright depended on the company, which in effect kept a register of copyrights. They further argued that copyrights were property, that they ought to be as assignable as other forms of property, and that their destruction was unthinkable.4
The Parliaments of the interregnum, therefore, maintained the system and set up boards of licensers. At the Restoration the system was continued intermittently by statute until 1692, when the current act came to an end. A pamphlet controversy ensued, the act was renewed until 1694, when it was finally allowed to expire.
Once again a large mass of press law came to a sudden end. After a prolonged controversy, the Copyright Act5 of 1709 retrieved the results of nearly two centuries of effort to establish literary property, while the common law courts had to rely on the law of treason, sedition and libel to carry out whatever control of the press might be needed.
It was no longer possible to say that printing was criminal merely because it was unauthorised, and so some positive ingredients of press offences had to be sought. Holt thought that “it is very necessary for all governments that the people should have a good opinion of it”1 and from this it seemed to follow that any publication which reflected upon the Government was criminal. The same idea was applied to libels against private persons which brought them into hatred, ridicule or contempt. The Star Chamber, moreover, had permitted much strong language by plaintiffs against defendants, of which “maliciously” in the description of publication was characteristic. As long as libels were normally the outcome of reckless sedition and factiousness the term was appropriate, but under changed conditions it caused much trouble later on.
LIBEL AND JURY TRIAL
The law of libel had little contact with juries in its early days, and when that contact finally occurred, there was much controversy as to the position of the jury. The earliest cases seem to run on the principle that the jury should find the facts, and that the court should determine whether the matter published constituted a libel. A remarkable exception was the trial of the Seven Bishops, which, as several writers have observed, was altogether so anomalous that no argument, legal or historical, can be based on it.2 In the eighteenth century the absence of a licensing system thrust the whole burden of surveillance over the press upon the courts, and trials for seditious libel grew steadily more frequent. The nature of malice and the question of intent were much discussed, and there arose an opinion that the jury were entitled to give a general verdict of guilty or not guilty according to their own opinion whether the writing constituted a libel. It required all Erskine’s eloquence to make this look plausible in the face of the mass of authority which was against him; indeed, the basis of his view was not legal, but political, and his famous argument in the Dean of St. Asaph’s Case3 was delivered more in the hope of stimulating Parliament to change the law, than of convincing Mansfield that the law was in his favour. He failed in the latter, but succeeded in the former object, and in 1792 Fox’s Libel Act4 was passed, in spite of the unanimous opinion given by the judges at the demand of the House of Lords.5 In form declaratory, it was in substance a momentous change in the law of libel. Until 1792 the strict legal theory has been accurately summed up in these words: “a seditious libel means written censure upon any public man whatever for any conduct whatever, or upon any law or institution whatever”.6 The crime consisted in the publication of matter of a particular sort, and not in the publisher’s intention. The obscurity of a proviso robbed the act for a time of some of its effect,1 but inevitably there followed the result that juries would not regard the expression of reasonable political dissent as being criminal; criminality therefore shifted from the nature of the words to the intention of the writer. It is a curious reflection that the unnecessarily picturesque language of indictments, even before the act, loaded the defendant with abuse which was technically superfluous, although it had the effect of seeming to put the defendant’s intention in issue. Thus the Dean of St. Asaph was indicted as “being a person of wicked and turbulent disposition, and maliciously designing and intending to excite and diffuse among the subjects of this realm discontents, jealousies and suspicions of our lord the King and his Government, and disaffection and disloyalty . . . and to raise very dangerous seditions and tumults”—with much more irrelevant matter as to the defendant’s intent.2
Before the act, criticism, because it was criticism, rendered those who published it guilty of libel. After the act the application of this rule of law was left to the jury, and they quite naturally would not regard as criminal expressions whose offensiveness consisted merely in being distasteful to the authorities. It took many years, however, before a new definition of seditious libel was reached. This was probably due to the fact that the revolutionary wars soon began, and for some time juries found themselves on the side of the government rather than of its critics: they certainly felt, too, that expressions might become dangerous at moments of intense political excitement although in normal circumstances they would do no harm. The likelihood that the publication would produce tumult or disorder was, therefore, frequently considered as the principal factor in deciding whether a publication was criminal or not.
LIBEL AND NEWSPAPERS
Seditious libel became rarer after the Reform Act of 1832 and the cessation of the war had relieved some, at least, of the tension in political affairs. The rise of newspapers, however, created special problems in connection with libels on private persons.
In the course of the eighteenth century it was gradually being settled that although truth was not an absolute defence in libel, yet it could be proved in order to reduce damages or mitigate punishment.3 Lord Campbell’s Act4 introduced another mitigating circumstance, namely that a prompt and suitable apology had been published, while in civil cases a newspaper owner might further show that the libel was inserted without malice and without negligence. In criminal cases the act made truth a defence (thus reversing an age-old doctrine) if it could be shown that publication was for the public benefit. In 1881 elaborate arrangements were made for the registration of newspapers with the object of enabling the public to ascertain whom to sue,1 and in 1888 the legislature dealt with the common difficulty when a newspaper published a report of a public meeting in the course of which defamatory matter was spoken and reported. In such cases the act conferred a qualified privilege, which may be lost if there was malice, or if the report was unfair or inaccurate.2
III Edgar, 4 (c. 946-c. 961); II Canute, 16 (c. 1027-c. 1034).
Borough Customs (Selden Society), i. 78; Pollock and Maitland, ii. 537.
Indeed, mere ill-repute was enough to put him on trial not only in church courts, but also before royal justices: Eyre Rolls (Selden Society, vol. lix), no. 1239 (1221).
The Church also punished insults (not within this class) as contumelia.
Lyndwood, Provinciale (ed. 1679), 117 diffamati, distinguishes “fame” from “rumour”.
Gibson, Codex Juris Ecclesiastici (ed. 1761), ii. 1252; Lyndwood, Provinciale (ed. 1679), 346. For a case of 1306 in a hundred court clearly illustrating the point of Stephen Langton’s constitution, see Pollock and Maitland, ii. 538 n. 5.
Above, p. 127 n. 1. So, too, one who brought an appeal of felony which ended in acquittal was liable to imprisonment and to pay damages for the defamation of the appellee: stat. Westminster II, c. 12 (1285).
For what may be a mingling of the two (c. 1340) see Page, Estates of Crowland Abbey, 141.
Select Pleas in Manorial Courts (Selden Society), 116 (1294). Slander of goods appears in 1320; Alice Batte “defamed the lord’s corn, whereby other purchasers forebore to buy it”; Court Baron (Selden Society), 130.
Text and translation in Plucknett, The County Court, Harvard Law Review, xlii. 639 at 668; the whole roll is now edited by Dr. G. H. Fowler, in Quarto Memoirs of the Bedfordshire Historical Record Society, iii. 66 no. 270, 74 no. 270.
But, of course, not the only one. In 1273 a Christian sought remedy against a Jew for defamation: Jewish Exchequer (Selden Society), 70-71; in 1279 there was a plea of defamation in the King’s Bench: Sayles, King’s Bench (Selden Society), ii. p. cxxii; cf. Exchequer of Pleas (Selden Society), 103 (1280); a man falsely denounced as a “wild Irishman” released in 1401: Cases before the King’s Council (Selden Society), 85-86; Select Cases in Chancery (Selden Society), no. 113 (1413-1417).
Graves, Circumspecte Agatis, English Historical Review, xliii. 1.
Rotuli Parliamentorum, i. 132-134.
E.g. above, p. 98.
Case for slander is a later development; below, p. 491.
Westminster I (1275), c. 34.
2 Richard II, stat. 1, c. 5. For a case on this statute, see Rot. Parl. iii. 169 no. 15 (1382).
For the connection of John of Gaunt with this statute, see Barrington, Observations on the Statutes (1775), 314.
12 Richard II, c. 11.
1 & 2 Philip and Mary, c. 3. The same Parliament (c. 9) declared it treason to have prayed, or to pray in the future, that God would shorten the queen’s life, but with a curious clause modifying this retrospective operation.
1 Elizabeth, c. 6.
Lord Cromwell’s Case (1578-1581), 4 Rep. 12 b.
The criminal cases were apt to be either seditious, or in the nature of contempt of court. The common law courts, like the Star Chamber, were at pains to avoid using the statutes, and so created the impression that seditious words were a common-law misdemeanour; cf. Holdsworth, viii. 340.
Bate’s Case (1606), 2 St. Tr. 371. See extracts in Prothero, Constitutional Documents, 340; Tanner, Constitutional Documents of James I, 337-345; Holdsworth, vi. 43 ff.; G. D. G. Hall, Bate’s Case and “Lane’s” Reports: the Authenticity of a Seventeenth-Century Legal Text, Bulletin of the John Rylands Library, xxxv. 405, and Impositions and the Courts, 1554-1606, Law Quarterly Review, lxix. 200.
De Libellis Famosis (1605), 5 Rep. 125.
Hudson, “Star Chamber” in Collectanea Juridica, ii. 100.
See the cases collected in 4 Rep. 12-20.
Rot. Parl., i. 132 a (mentioned above, p. 485 n. 4).
Select Civil Pleas (Selden Society), no. 183 (post 1205).
Select Pleas in Manorial Courts (Selden Society), passim. Even in debt the plaintiff might recover for “shame” as well as damages: Court Baron (Selden Society), 47. In Select Cases without Writ (Selden Society), cviii ff., the editors would regard the notion as a Romanism. There is no ground for this.
Select Cases in Star Chamber (Selden Society), i. 38 ff.
Select Cases in Star Chamber, 20, 101, 109, 163, 166, 182 et passim.
Hudson, “Star Chamber” in Hargrave’s Collectanea Juridica, ii. 104. He even applies this rule to scandalum magnatum, which Coke said could not be justified.
Hudson, “Star Chamber” in Hargrave’s Collectanea Juridica, ii. 104, and cases cited in Holdsworth, v. 211, n. 2.
See the cases cited in Holdsworth, v. 207, n. 4.
30 Ass. 19 (1356). For the record, see Sayles, King’s Bench, iii, p. cxxxvi. The incident took place on 15 November, 1357, and so the report in 30 Ass. is misplaced. The case seems clearly an action for damages brought by bill by the injured party, rather than proceedings for contempt of court. Lucy aggravated matters by producing a papal bull excommunicating the justice; bulls were not evidence in English courts, and she was reminded that she had risked her neck in using it. Dr Kiralfy, Action on the Case, 115, has found other proceedings from which it would appear that Lucy had been Seton’s wife whom he married for her property; she later got a divorce from Rome.
Y.B. 2 Edward IV, 5 (10).
Y.B. 15 Edward IV, 32 (15).
There was great danger that the defendant might plead to the action, with the result that the plaintiff, although a villein, would then be enfranchised since the defendant had treated him as a free man.
Y.B. 17 Edward IV, 3 (2).
For this point, see Y.B. 9 Henry VII (1493), 7 (4).
Y.B. 22 Edward IV (1482), 20 (47), continued ibid., 29 (9). It seems that the court took advantage of a very curious state of facts in reaching this notion. An abbot of St. Albans is alleged to have enticed a married woman to his room and endeavoured to seduce her, whereupon her husband brought an action of false imprisonment. To this the abbot countered with a citation for defamation, and it was this suit that the Common Pleas prohibited. The further proceedings are equally curious; the abbot excommunicated the woman for getting the prohibition, the Court of Common Pleas ordered him to absolve her, and as he did not do so, he was attached for contempt. The truth of the allegations was apparently never tried.
As in the Abbot of St. Alban’s Case in the preceding footnote.
Thus, in 1486, a constable would have justified imprisoning a man by a London custom which allowed him to enter houses and arrest adulterers, though adultery was not a crime at common law and the fact was therefore not triable; Y.B. 1 Henry VII, 6 (3). That case was undecided, but a later case escaped the difficulty of adultery, for the custom pleaded in justification was merely to arrest suspicious persons found in disorderly houses; Y.B. 13 Henry VII (1497), 10 (10).
Y.B. 12 Henry VII, 24.
Y.B. 27 Henry VIII, 14 (4).
John March, Actions for Slander: or, Collection of what Words are actionable in the Law, and what not? 1647.
Davis v. Gardiner (1593), 4 Rep. 16 b.
The words (that a woman had a bastard child) could also have come under the older rule, for this was an offence punishable under the poor law of 18 Eliz., c. 3.
Leprosy, syphilis and perhaps plague; no satisfactory explanation for this curious list seems available. See Holdsworth, viii. 349.
Davis v. Gardiner, above, p. 494 n. 1.
The legislature also took steps to discourage frivolous actions of slander by enacting that if the jury in actions on slander find the damages less than forty shillings, then the plaintiff shall not be awarded more than forty shillings costs: 21 James I, c. 16 (1624); cf. p. 174, above.
Holt v. Astrigg (1607), Cro. Jac. 184.
Anon. (1613), 1 Roll. Abr. 74 b, pl. 1.
Charnel’s Case (1592), Cro. Eliz. 279.
(1612) 12 Rep. 132. This rule was finally abandoned two hundred years later.
Gerrard v. Dickenson (1590) 4 Rep. 18; see the references in Holdsworth, viii. 351.
Holdsworth, v. 358-359.
Somers v. House (1693), Holt, K.B. 39; Baker v. Pierce (1703), 6 Mod. 24; Harrison v. Thornborough (1714), 10 Mod. 198.
King v. Lake (1670), Hardres, 470; Skinner, 124.
Lord Beauchamp v. Croft (1569), Dyer, 285 a.
Brook v. Montague (1606), Cro. Jac. 90.
Treyer v. Eastwick (1767), 4 Burr. 2032.
54 & 55 Vict., c. 51.
25 Hen. VIII, c. 22, s. 5 (1534); Tanner, Tudor Constitutional Documents, 386.
1 Edw. VI, c. 12, s. 6 (1547); Tanner, op. cit., 403. Compare 13 Eliz., c. 1 (1571); Tanner, op. cit., 414.
Steele, Tudor and Stuart Proclamations, i. no. 176.
Ibid., no. 3316.
34 & 35 Hen. VIII, c. 1 (1543).
Steele, op. cit., no. 3516.
Ibid., no. 3859.
Steele, Tudor and Stuart Proclamations, no. 3832.
Holdsworth, vi. 362 ff., sketches their history, and the origin of copyright.
See the Order in Council of 1566 in Tanner, Tudor Constitutional Documents, 245 (and in Prothero, Select Statutes and Constitutional Documents, 168), and the Star Chamber ordinance of 1586 in Tanner, op. cit., 279 (and in Prothero, op. cit., 169).
From the earliest days of English printing, the Crown had issued its “privilege”: A. W. Reed, Early Tudor Drama, 176-186, 205.
8 Anne, c. 19; for the great question whether copyright exists at common law or is merely statutory, see Holdsworth, vi. 377-379.
R. v. Tutchin (1704), 14 S.T. 1095, at 1128.
12 S.T. 183 (1688); Stephen, ii. 315; Holdsworth, vi. 344. Similar causes produced a like result in the case of Peter Zenger in New York (1734).
R. v. Shipley (1783), 21 S.T. 847, at 971, discussed at length in Stephen, ii. 330-343.
32 Geo. III, c. 60.
22 S.T. 296.
Stephen, ii. 350.
As to this curious point, see Stephen, ii. 246.
Stephen, ii. 353 n.
The authorities (which are very obscure and conflicting) are collected in 5 Bac. Abr. 203-205.
6 & 7 Vict. (1843), c. 96.
44 & 45 Vict. (1881), c. 60.
51 & 52 Vict. (1888), c. 64. The great constitutional case of Stockdale v. Hansard (1839), 9 Ad. & E. 1, raised the question whether privilege attached to publications authorised by the House of Commons. The Parliamentary Papers Act, 1840 (3 & 4 Vict. c. 9), conferred absolute privilege on such publications. The courts by decision accorded qualified privilege on reports of parliamentary debates in Wason v. Walter (1868), L.R., 4 Q.B. 73, which thus established the principle which was extended to public meetings by the act of 1888; documents strictly connected with legal or parliamentary proceedings, and not otherwise published, were privileged since the sixteenth and seventeenth centuries.