inal writ. These writs differed from each other according to the nature of the wrong to be redressed. These writs

ous, and defendants had the right to publish it. (Clover v. Royden, Law Rep. 17 Eq. 190.)

The fact that plaintiff's reputation might suffer by his dismissal from the defendant's service is not a ground for equitable interference to prevent his dismissal. (Johnson v. Shrewsbury R. R. Co. 3 De G. M. & G. 926).

The Apollinaris Co. had prosecuted Fisher & Co. for an infringement of their trade-mark; the prosecution was stayed on Fisher & Co. giving a written apology. The Apollinaris Co. advertised this apology, whereupon Fisher & Co. applied for an injunction restraining the publication. The application was denied. (Fisher & Co.

. Apollinaris Co. Law Rep. 10 Eq. 297.)

In Life Asso. of Amer. v. Boogher (St. Louis Court of Appeals, Dec. 1876; 4 Cent. Law Jour. 40), it was held that a court of equity has no power to enjoin the threatened publication of a libel, though its publisher is insolvent and the damage will be irreparable. In Markett v. Comm'rs of Hearne Bay (24 Weekly Rep. 845), one of the defendants, a minister of the gospel, was restrained by injunction from publishing notice of an intended sermon on the subject of the suit then pending, and from preaching such sermon; but the ground of the decision was that such sermon was a contempt of court. In 4 Cent. Law Jour. 170, is an article entitled, “Enjoining the publication of libels." By statute in Texas, a magistrate may put one under bonds not to publish a libel.

self

"Injunctions had been granted against the piracy of the 'Dunciad,' notwithstanding its libelous passages; and even against the piracy of Mrs. Bellamy's Memoirs, a work of notorious indecency. The law upon the subject had never been mooted, until, in an action brought by Dr. Priestley, the great apostle of Unitarianism, against the hundred, for the destruction of his manuscripts in the Birmingham riots, Lord Justice Eyre told the jury that if the evidence had shown the contents of the destroyed works to be in the nature of libels upon the government, he should have considered such proof as receivable against Dr. Priestley's claim. In this state of the law, an application was made by Dr. Walcot, the noted 'Peter Pindar,' for an injunction against the piracy of some of his works. Lord Eldon, grounding himupon the common law as stated by Chief Justice Eyre, refused the injunction, and laid down the principle, by which, from that time, this subject has been regulated. (Walcot v. Walker, 7 Ves. 1.) In the later case of Mr. Southey's application for an injunction to restrain the sale of 'Wat Tyler,' a seditious work produced by him in early youth, which a bookseller, having casually obtained a copy of it, was now unfairly publishing, Lord Eldon said, in giving judgment, 'It is very true that, in some cases, it may operate so as to multiply copies of mischievous publications by the refusal of the court to interfere by restraining them; but to this my answer is, that sitting here as a judge, upon a mere question of property, I have nothing to do except with the civil interests of the parties; and if the publication be mischievous, it is not my business to interfere with it.'" (Southey v. Sherwood, 2 Meriv. 435; and see Lawrence v. Smith, 1 Jacob, 471; and Edinburgh Review, May, 1823; 2 Life of Lord Eldon by Twiss, ch. lxiii.)

Lord Eldon refused an injunction to restrain the sale of a pirated edition of Lord Byron's "Cain," on the ground that it was a profane libel. (Murray v. Benbow, Jac. 474, note, noticed with other cases in Phillips on Copyright, 23.) Lord Camp

were preserved in the chancery in The Register of Writs, which register was printed and published in the reign of Henry VIII of England. The most ancient writs provided for the most obvious kinds of wrongs, as nuisance, waste, trespass, &c. ; but in the progress of society it seems that cases of injury arose new in their circumstances, and not within any of the writs then known, and that the power to issue writs of a new kind was conceived not to exist without the authority of the Parliament; accordingly, by the statute of 13 Edward I, ch. xxiv, called the statute of Westminster the IId (say A. D. 1285), it was provided "That as often as it shall happen in the chancery, that in one case a writ is found, and in a like case (in consimilu casu) falling under the same right,

bell, in X Lives of the Lord Chancellors, page 255, reviews and criticises the decisions of Lord Eldon refusing to protect the copyright in libelous publications.

In deciding Brandreth v. Lance (supra), the Chancellor referred to 2 R. S. 737, s. 1, pt. IV, ch. xi, tit. 6, art. 1. This section confers on courts the power to bind persons to give security to keep the peace in certain cases, and its last clause reads thus: "This section shall not extend to convictions for writing or publishing any libel, nor shall any such security be hereafter required by any court upon any complaint, prosecution, or conviction, for any such writing or publishing." The revisers, in their note to that section, say, in reference to the above-recited clause, that it is new, and "it is conceived that this provision virtually takes away from the courts the common-law power of binding over a party guilty of publishing a libel." As to the common-law power of binding to good behavior, see Hawkins' Pleas Cr. ch. lxi, and Viner's Abridgment, tit. Good Behavior; Highmore on Bail, 248. By Laws of 1860, ch. cviii, § 20, p. 1007, every person in the city of New York, shall be deemed guilty of disorderly conduct "who shall use any threatening, abusive, or insulting behavior with intent to provoke a breach of the peace." The courts interfere by injunction to restrain the publication of letters written by a party or his testator to the defendant or others. (2 Story's Eq. Juris. $$ 943 to 949; Woolsey v. Judd, II How. Pr. Rep. 49; 4 Duer, 379; Resp. v. Duane, 1 Binney, 98; 2 Stark. Slan. 268, note I.)

1 One of the earliest refinements in forensic science was that of classifying the various subjects of litigation, and allotting to each class an appropriate formula of complaint or claim. Such was the practice in ancient Rome almost as early as the law of the twelve tables, and continued until the time of Constantine, who abolished the judicial formula. These formulæ in the English law were called writs. How, or when, or whence introduced into England, is undetermined. (Stephens' Pl. ch. i, and Id. appendix, note 2.)

4 Reeve's Hist. 426, 432. Original writs were abolished in England by statute. 2 Will. IV, ch. xxxix.

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 action-now 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. We will here merely remark that the rules by which we determine when 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 rules. Preliminary to attempting an analysis of the wrongs, slander and libel, we shall in our next chapter consider what is the gist of the action for slander or libel.

1

Although the new writs were to be framed only in consimilu casu, "many writs were framed for various kinds of trespasses 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 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 on the case has its counterpart in the actio utilis of the Roman Law. (See 2 Austin's Lect. Jur. 303.)

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, or as to the gist of such an action, and and neither history nor judicial decision furnishes any satisfactory solution of these doubts. We know, indeed, 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. As the action of trespass on the

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; I 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; 1 Eliz.; the publications of the English Record Commissioners;

case owed its 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 as 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

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, 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 3, p. 98, 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."

* 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 thirty-eight years of the reign of Henry the Eighth. At page 5 he says: Actions for scandal are amongst the most ancient in the law.