A very full and complete resumé of the history of Law of Defamation is given in Newell on Libel and Slander, pages 1-31, reviewing the acts of the ancient lawmakers, commencing with the Mosaic law and citing largely from Pentateuch and Psalms. The most interesting, although, perhaps, not most instructive, citation being from Deuteronomy XXII, 13 to 19. This is followed by citations as to the laws of ancient Egypt, comments upon Athenian law, and a very full abstract of the Civil law upon the subject, in the course of which he contrasts the subtleties of our law upon the subject with the Civil law, saying: "The Roman [651] 66 Law had at least the merit of simplicity." He says Justinian in the Institutes classed libel and defamation as a private injury of the highest degree, citing from the Institutes the statement Injury may be done, not only by beating and wounding, but also by slanderous language * by writing a defamatory poem or history, or by maliciously causing another so to do." The treatment of the topic shows careful examination and thorough research. * * The earlier history of the English Law of Defamation, says a writer in the Encyclopædia Britannica, is somewhat obscure. Civil actions for damages seem to have been frequent so far back as the reign of Edward I, but at that time there was no distinction between words written and spoken, and, in some instances, such cases were within the jurisdiction of the Ecclesiastical Courts. It is stated further that the first fully reported case in which libel is affirmed generally to be punishable at common law was tried in the Star Chamber in the reign of James I. Newell (p. 30) states that no action for slanderous words appears to have been brought before the reign of Edward III, and that this action was so rare even then that but one is found during the whole reign of that prince. He traces the growth of the action down to the time of Coke, in a single volume of whose reports seventeen adjudged cases are to be found on the subject. The principal historical interest of the law of libel relates to indictments for libel on the criminal side of the court in connection with the rulings of Lord Mansfield in the celebrated State trials about the commencement of the last century in which Erskine appeared for the defendants, and insisted that the jury should determine the question as to whether the language used was or was not a libel. The agitation of the subject resulted in the passage of what was known as "Fox's Libel Law," by which the jury were entitled to give a general verdict in criminal cases on the whole matter put in issue. SUBDIVISION 2. Text-Books and Authorities. In addition to the standard works upon torts in which this subject is treated more or less fully, several treatises are exclusively devoted to the law of libel and slander. Holt's Law of Libel, first American edition, 1818, is the ear Art. 2. Definitions and Distinctions. liest in point of time, but has become practically obsolete. Starkie was for many years a standard work on the subject and passed through at least three American editions, and several English editions by Folkard, one so late as 1897, but has been superseded by later works in this country. Flood's Treatise, published in London in 1880, is but little known here, and does not seem to have been republished in America. The work of Odgers is best known and most frequently cited in England. Fraser on the Law of Libel and Slander has recently gone through a third edition. Townshend on Libel and Slander was first published in 1868, and has gone through four editions, the latest being 1890. It is a standard treatise. It contains a very complete bibliography of the subject, and has been followed by Newell's work, first published in 1890, second edition in 1897, which is, aside from being a treatise upon the subject, a full digest of the English and American authorities. The subject is treated in Wait's Action and Defenses; Slander (vol. 5), page 727, etc.; Libel (vol. 4), page 281, etc. The American and English Encyclopædia of Law (2d ed., vol. 18), at page 851, contains a very complete and carefully prepared digest of the law upon this subject, citing a large number of English and American authorities. Elliott on Newspaper Libel (London, 1884) is a monograph pointing out how the law has been modified as to newspaper libel by Act of Parliament of 1881. The Law of the Press, by Fisher & Strahan (London, 1898), deals exclusively with that phase of the law of libel expressed in the title. ARTICLE II. DEFINITIONS AND DISTINCTIONS. PAGE. 653 656 SUBDIVISION 1. Libel and slander distinguished.. 2. Doctrine of special damage.. SUBDIVISION 1. Libel and Slander Distinguished. Defamation is false imputation upon one's character, or reputation, in the way of slander or libel. Whenever language is Art. 2. Definitions and Distinctions. spoken of as defamatory it is understood to be false. Bigelow on Torts, 149. Defamation may be either oral or written; in the former case it is called Slander; in the latter Libel. Underhill on Torts, 119. Defamation is a false publication calculated to bring one into disrepute. Hale on Torts, 281. It is divided into two classes, written defamation called libel, oral defamation termed slander. Pollock on Torts, 287; Newell on Slander and Libel, 32. "Libel is defamation published by means of writing, printing pictures, images, or anything that is the object of sight. Slander is defamation without legal excuse, published orally, by words spoken, being the object of the sense of hearing. Both libel and slander are but different methods of accomplishing the same wrong, differing mainly in the manner of publication." Newell on Slander and Libel, 33; Cooley on Torts, 193. A defamatory statement is a statement concerning any person which exposes him to hatred, ridicule, or contempt, or which causes him to be shunned, or avoided, or which has a tendency to injure him in his office, profession, or trade. Such a statement, if in writing, printing, or other permanent form, is a libel; if in spoken words or significant gestures, a slander. Fraser, 90. "It is well settled that an action may be maintained for the publication of written words when it could not be maintained for the publication of the same words by mere oral discourse; the rule being, in short, that oral words which tend to disgrace the person of whom they are spoken, and which do not impute the commission of crime are not actionable without proof of special damage, whereas written words, the manifest tendency of which is seriously to hurt another's reputation, are actionable without proof of special damage, even though the commission of no crime be imputed." 18 Am. & Eng. Encyc. of Law (2d ed.), 863. A favorite distinction is that in slander intelligence is communicated to the sense of hearing; in libel, to the sense of sight. Another is that in slander, the defamatory matter has a fugitive form. In libel it is embodied in a permanent form. In slander, a production and publication are identical; while in libel its production is one thing and its publication another. Hale on Torts, 283; Cooley, 193. Abusive words, which if spoken only, would not be actionable, Art. 2. Definitions and Distinctions. may become so when written, printed, or published. 4 Waite's Actions and Defenses, article Libel, 282, citing Savile v. Jardine, 2 II. Bl. 532; Chase v. Whitlock, 3 Hill, 139. Written utterances are, in the absence of special ground, of justification or excuse, wrongful as against any person whom they tend to bring into hatred, contempt, or ridicule. Spoken words are actionable only when special damage can be proved to have been their proximate consequence, or when they convey imputations of certain kinds. Pollock on Torts, 288. Actionable words are doubtless such as naturally imply damage to the party; but it must be borne in mind that there is a marked distinction between slander and libel, and that many things are actionable when written or printed and published which would not be actionable if merely spoken, without averring and proving special damage. Pollard v. Lyon, 91 U. S. 225 (228), citing Clement v. Chivis, 9 Barn. & Cres. 174; McClurg v. Ross, 5 Binn. 219. False defamatory words, if written and published, constitute a libel; if spoken, a slander. Chase v. Southwick, 9 Johns. 214. Gaynor, J., in Cady v. Brooklyn Union Publishing Co., 23 Misc. Rep. 409, 51 N. Y. Supp. 198, cites numerous authorities and considers very fully the distinction between libel and slander. He also discusses what constitutes libel, in a civil, and what in a criminal, proceeding. "Verbal imputations, however gross, may die with the breath which sent them forth, and be forgotten with the excitement which produced them. But written or printed charges of the same import remain permanently upon the record, and by means of the press are multiplied and sent abroad through the world, as far as the name or fame of the injured individual may extend, to destroy his character and embitter his feelings through his whole life, and even to degrade his memory in the estimation of those who may come after him. The distinction stands on a broad and rational foundation, and should not therefore be subverted unless we are compelled to do so by precedents bearing directly upon the question. The distinction has been long recognized and acted upon, and seems to be firmly established." Stone v. Cooper, 2 Den. 293 (305). "There is a distinction between oral and written or printed slander, which is noticed in all the books; and the latter is deemed |