similu casu) falling under the same right, and requiring like remedy, no writ is to be found, the clerks in the chancery shall agree in making a writ," &c. Under the sanction of this act, large accessions were made to the existing stock of original writs. These new writs were said to be issued upon the case, and the actions commenced by them were designated actions upon the case, or actions of trespass on the case. Among this class was the action of trespass on the case for words-the ancient form of the actionnow known as the action of slander or libel, and which is the only civil remedy for slander or libel.1 54. The consideration of the course of procedure in an action pertains more properly to a subsequent stage of our inquiry. The rules by which we determine whether or not a wrong has been committed, and the rules of pleading, of evidence and of practice, although they have a certain interdependence, are in fact, and, if we would avoid confusion, must ever be regarded as separate and distinct. 1 Although the new writs were to be framed only in consimilu casu, "many writs were framed for various kinds of trespass unknown in former ages." (Sullivan's Lectures, Lect. 33; Stephens' Pl. 7.) The first reported action of trespass on the case is said to be found in 22 Edw. III, Ass. 41. (Reeve's Hist.) That would be A.D. 1349. We have not verified this statement, and doubt its correctness. The action an the case has its counterpart in the actio utilis of the Roman Law. (See 2 Austin's Lect. Jur. 303.) Part 11, post. CHAPTER IV. WHAT IS THE GIST OF THE ACTION FOR SLANDER OR LIBEL. History silent as to the introduction of the action for slander-Hypothesis necessary—How the law protects reputation-Fiction-Pecuniary loss the gist of the actions for slander and libel. $55. It is not known with certainty, or, rather, all are not agreed, either as to the origin of the remedy by action for slander or libel, nor as to the gist of such an action, and neither history nor judicial decision furnishes any satisfactory solution of these questions. We know that all nations have recognized the capacity for injury inherent in language, and have provided some means for punishing offenses arising from an abuse of the gift of speech; but we seek in vain among these laws for a clew to the principles by which at this day we may determine when a wrong by slander or libel has been occasioned, and when we may properly invoke the remedy by action for slander or libel.1 As the action of trespass on the case owed its 1 After a reference to all available authorities on the subject of the ancient laws against offenses by language, and preparing a lengthy note on the subject, we conclude that however interesting as history, its publication here would not advance the object of this essay. The curious student may refer to Holt on Libel, ch. i, vol. II; Mence on Libel, ch. viii, ix; Starkie on Slander; 3 Johns. Cas. 382; Wilkins' Leg. Anglo-Sax.; Lombard's Saxon Laws; Nicholson's Prefat. ad Leg. Anglo-Sax.; Stiernhook De Jure Vetusto Suconum et Gothorum; Tacitus' De Mor. Germ.; Saltern De Antiq. Leg. Brit.; Dugdale's Origines Juridicales; Disney's Ancient Laws against Immoralities: Gurdon's History of Court Baron and Court Leet; Petit's Leges Atticæ; Johnson's Institutes of the Civil Law of Spain; Michaelis' Com. on the Law of Moses, Smith's Translation; The English Statutes, 3 Edw. I; 2 Rich. II; 1 Phil. and Mary; I Eliz.; the publications of the English Record Commissioners; Pitcairn's Criminal Trials in Scotland. For seventeenth century ideas of the law of libel in Massachusetts, see Sketches of the Judicial History of Massachusetts; and among the Dutch in New York, see Valentine's Manual of Common Council for 1849, pp. 402, origin to the provisions of the statute 13 Edward I, A. D. 1285, it seems necessarily to follow that the action of trespass on the case for words must date its origin at some period subsequent to that statute; but it does not thence follow that anterior to the introduction of the action of trespass on the case for words, there existed in England. no remedy for wrongs by language. We know that for centuries prior to the statute of 13 Edward I, offenses which we at this day designate slander and libel were recognized and punished; but of the time and manner of introducing the remedy by action of trespass on the case for words we know absolutely nothing. The reported decisions in the courts of law in England, printed and in manuscript, reach back at least so far as A. D. 1216, but we find in those reports no reference to an action for words earlier than A. D. 1321.2 That decision merely serves to inform us that at that time existed the struggle for jurisdiction which probably commenced on the division of the courts into courts temporal and courts ecclesiastical or Christian, and which continued certainly until after the reign of the first James of England. § 56. As we can obtain no positive information on the subject of our inquiry, we are driven to hypothesis. Our 421; and under English rule, Valentine's Manual for 1847, p. 359; and Thomas' Hist. of Printing in America. And see List of Authors following Table of Cases, ante. 1 Section 53, ante, and note 2, p. 35, ante. Mr. Pomeroy, in his introduction to Municipal Law, says, § 199: That before the statute there was absolutely no provision for a vast majority of the legal rights. . which are now the most common and important." And 201: The effect of the statute "was to extend this action to cases where the injury was consequential or indirect." 2 That case is in the year book of Edward II (Hil. 14 Edw. II, p. 416); it was an attachment upon a prohibition against proceeding in a court Christian for defamatory words. There is nothing in the report to indicate that it was a novel proceeding. March, in his Treatise on Slander, says he could find no action for scandalous words before Edward the Third's time, and only one such action during fifty years of that king's reign; three such actions during the reign of Edward the Fourth; not one in the reign of Henry the Seventh; and only five in thirtyeight years of Henry the Eighth. At page 5 he says: Actions for scandal are amongst the most ancient in the law. unwritten law is based on the so-called common law of England, and whatever the number of sources which contributed to make up that complex, vaguely understood and imperfectly ascertained set of legal ideas denominated the common law of England, it is certain that so much of it as pertains to the rights of persons is mainly derived from the Anglo-Saxon and Roman civil laws. Of both of those systems of laws history furnishes us ample details. We know that Rome held possession of Britain from about the end of the first half century of the Christian era to about the middle of the fifth century (say from A. D. 45 to A. D. 448), and during this period Roman civil law was administered in England. When the Romans abandoned Britain, the Saxons became its masters, and, alternately with the Danes, so continued until the Norman conquest (A. D. 1066). The Saxons introduced their own system of laws. The controlling idea of those laws was the maintenance of the peace and protecting the person and property. They did not, nor does the law at this day, give directly any remedy for outraged feelings or sentiments.1 1 See Tilley v. Hudson R. R. Co. 23 How. Pr. R. 370; Green v. Hudson R. R. Co. 32 Barb. 25; Lehman v. City of Brooklyn, 29 Barb. 234; Flemington v. Smithers, 2 C. & P. (N. P.) 292; Terwilliger v. Wands, 17 N. Y. 54; Wilson v. Goit, 17 N. Y. 442; Bedell v. Powell, 13 Barb. 183; Samuels v. Evening Mail Asso. 13 Sup. Ct. Rep. (6 Hun), 5; Salma v. Trosper, 27 Kan. 544. The cases to the contrary were overruled. But where there exists an independent cause of action, in that event injury to the feelings is an element of damage. Hamilton v. Eno, 16 Hun, 599: 81 N. Y. 122; Brooks v. Harrison, 91 N. Y. 83; Gulf R. R. Co. v. Levy, 17 Cent. L. J. 11. Mence, commenting on the statement of Holt, that the few actions for slander to be found in the earlier law reports was creditable to the people of those times, remarks that the credit was not due to the good manners but to the fact that "the common law took cognizance only of injuries to the person and property." (1 Mence on Libel, 333.) Perhaps among the reasons why there were so few actions for slander, one may be that the parties themselves undertook to redress the injury without resorting to the law. When King Harold required of Reidar, the Icelander, a blood fine for killing one of his (Harold's) followers, Reidar refused to pay it, because the man brought his death upon himself by behaving rudely to him. See Den Danske Erobring of England og Normandict; Copenhagen, 1863. In Baker v. Pierce (2 Ld. Raym. 960), Holt, Ch. J., said he remembered a story told by Mr. Justice Twisden, of a man who had brought an action for slander, who, on judgment being given against him, said if he had thought he should not have recovered he would have cut the defendant's throat. See Quigley v. With few exceptions, these laws designed to remedy every wrong by a pecuniary mulct or fine (were)1 proportioned and adjusted to the kind and degree of the wrong committed. In that form of trial which corresponded to our present jury trial, the question in Saxon times was only the guilt or innocence of the accused. The penalty (the damages) was fixed by the codes. At a later period, after the Norman invasion, and when the Anglo-Saxon codes had been lost by desuetude, the courts fixed the amount of damages; this power, when jury trials assumed their present phase, appears to have been transferred by the court to the jury-the court, however, retaining its power to regulate the damages. For ages the courts always revised the allowance by the jury of damages, and the power McKee, 12 Oregon, 22. The Jesuits 66 The necessity of protecting character by law could not obtrude itself till society had begun to assume a complicated form. (Borthwick on Libel, 1.) The coarseness of language indulged in formerly must strike every student of history. Henry III (A. D. 1248) spoke of the Aldermen of London as "London Boors," applied a like epithet to the Bishop of Ely, and dismissed Bishop Aymer by telling him to go to the devil. See Miracles of Simon de Montfort and works of Roger Bacon. Damages correspond to the An glo-Saxon were: I Palgrave's Rise, &c., Eng. Commonwealth, 205; Bosworth's Anglo-Saxon Dict. tit. Were and Wite; 2 Lappenburg's History of England (Thorp's Translation), 336. 2 As to the origin of trial by jury, &c., see Forsyth's Hist. of Trial by Jury, and Stephen's Pl. Appendix, note 40; 2 Reeves' Hist. 270; Fortescue de Laudibus Legum Angliæ, ch. XXV, xxvi, xxvii, and notes to the edition by Amos; 2 Hallam's Middle Ages, 388-406, note, 11th edit.; Palgrave's English Commonwealth, 272. 3 See Viner's Abr. tit. Damages, J, K, L, M, as to powers of courts to increase or mitigate damages. The right was denied in an action for slander, because there is in such an action nothing apparent for the judgment of the court to act upon. (Id. K.) See Cassin v. Delaney, 38 N. Y. 178; but in Gostling v. Brooks, 2 F. & F. 76, the court in bank upheld the verdict for the plaintiff, but reduced the amount of damages. The damages increased for giving plaintiff bad food to eat. (1 Rolle, 89.) And in cases of mayhem. (See Jacobs' Law Dict. tit. Mayhem; Rolle Abr. tit. Damages; 2 Sharswood's Blackstone's Com. 121, note, and the last note to § 293, post. |