In the early years of the eighteenth century the genius of Holt found the way to use this, together with other special classes of authorities, as a foundation for the broader principle that "he that hinders another in his trade or livelihood is liable to an action for so hindering him" (i), subject, of course, to the exception that no wrong is done by pursuing one's own trade or livelihood in the accustomed manner though loss to another may be the result (k) and even the intended result (1). Historically both this principle and that of Lumley v. Gye (m) are developments of the old "per quod servitium amisit"; but in the modern law they depend on different and much wider reasons, and raise questions which are not technical but fundamental. We shall therefore deal with them not here but under another head. Brev. (1595) 104 a, "quando tenentes non audent morari super tenuris suis," and Tarleton V. McGawley (1794) Peake 270 [205], action for deterring negroes on the coast of Africa from trading with plaintiff's ship. (i) Keeble v. Hickeringill (1705) 11 East 574 n. (k) Ib. 576; supra, p. 133. (1) Mogul Steamship Co. v. McGregor (1889) 23 Q. B. Div. 598, 58 L. J. Q. B. 465. (m) 2 E. & B. 216, 22 L. J. Q. B. 463 (1853). 214 CHAPTER VII. Civil and criminal jurisdiction distin DEFAMATION. REPUTATION and honour are no less precious to good men than bodily safety and freedom. In some cases they may be dearer than life itself. Thus it is needful for the peace guished. and well-being of a civilized commonwealth that the law should protect the reputation as well as the person of the citizen. In our law some kinds of defamation are the subject of criminal proceedings, as endangering public order, or being offensive to public decency or morality. We are not here concerned with libel as a criminal offence, but only with the civil wrong and the right to redress in a civil action: and we may therefore leave aside all questions exclusively proper to the criminal law and procedure, some of which are of great difficulty (a). Slander and libel distinguished. The wrong of defamation may be committed either by way of speech, or by way of writing or its equivalent. For this purpose it may be taken that significant gestures (as the finger-language of the deaf and dumb) are in the same case with audible words; and there is no doubt that drawing, printing, engraving, and every other use of permanent visible symbols to convey distinct ideas, are in the same case with writing. The term slander is appropriated to the former kind of utterances, libel to the latter. Using (a) Such as the definition of blasphemous libel, and the grounds on which it is punishable. the terms "written" and "spoken" in an extended sense, to include the analogous cases just mentioned, we may say that slander is a spoken and libel is a written defamation. The law has made a great difference between the two. Libel is an offence as well as a wrong, but slander is a civil wrong only (b). 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. No branch of the law has been more fertile of litigation than this (whether plaintiffs be more moved by a keen sense of honour, or by the delight of carrying on personal controversies under the protection and with the solemnities. of civil justice), nor has any been more perplexed with minute and barren distinctions. This latter remark applies especially to the law of slander; for the law of libel, as a civil cause of action, is indeed overgrown with a great mass of detail, but is in the main sufficiently rational. In a work like the present it is not possible to give more than an outline of the subject. Those who desire full information will find it in Mr. Blake Odgers' excellent and exhaustive monograph (c). We shall, as a rule, confine our authorities and illustrations to recent cases. (b) Scandalum magnatum was, and in strictness of law still might be, an exception to this: Blake Odgers, Digest of the Law of Libel and Slander, 134-137. Mr. Odgers has not found any case after 1710. (c) A Digest of the Law of Libel and Slander, &c. By W. Blake Odgers. London, 2nd ed. 1887. Part IV. of Mr. Shortt's "Law relating to Works of Literature and Art" (2nd ed. London, 1884), may also be usefully consulted: but this does not cover the whole ground. When slander is action able. Meaning of "prima facie libellous." 1.-Slander. Slander is an actionable wrong when special damage can be shown to have followed from the utterance of the words complained of, and also in the following cases: Where the words impute a criminal offence. Where they impute having a contagious disease which would cause the person having it to be excluded from society. Where they convey a charge of unfitness, dishonesty, or incompetence in an office, profession, or trade, in short, where they manifestly tend to prejudice a man in his calling. Spoken words which afford a cause of action without proof of special damage are said to be actionable per se: the theory being that their tendency to injure the plaintiff's reputation is so manifest that the law does not require evidence of their having actually injured it. There is much cause however to deem this and other like reasons given in our modern books mere afterthoughts, devised to justify the results of historical accident: a thing so common in current expositions of English law that we need not dwell upon this example of it (d). No such distinctions exist in the case of libel: it is enough to make a written statement prima facie libellous that it is injurious to the character or credit (domestic, public, or professional) of the person concerning whom it is uttered, or in any way tends to cause men to shun his (d) See Blake Odgers, pp. 2-4, and Amer. Law Rev. 593. It seems odd that the law should presume damage to a man from printed matter in a newspaper which, it may be, none of his acquaintances are likely to read, and refuse to presume it from the direct oral communication of the same matter to the persons most likely to act upon it. society, or to bring him into hatred, contempt, or ridicule. When we call a statement prima facie libellous, we do not mean that the person making it is necessarily a wrongdoer, but that he will be so held unless the statement is found to be within some recognized ground of justification or excuse. Such are the rules as to the actionable quality of words, if that be a correct expression. The authorities by which they are illustrated, and on which they ultimately rest, are to a great extent antiquated or trivial (e); the rules themselves are well settled in modern practice. damage. Where "special damage" is the ground of action, we Special have to do with principles already considered in a former chapter (ƒ): namely, the damage must be in a legal sense the natural and probable result of the words complained of. It has been said that it must also be "the legal and natural consequence of the words spoken" in this sense, that if A. speaks words in disparagement of B. which are not actionable per se, by reason of which speech C. does something to B.'s disadvantage that is itself wrongful as against B. (such as dismissing B. from his service in breach of a subsisting contract), B. has no remedy against A., but only against C. (g). But this doctrine is contrary to principle the question is not whether C.'s act was lawful or unlawful, but whether it might have been in fact reasonably expected to result from the original act of A. And, though not directly overruled, it has been disapproved by so much and such weighty authority that we may say (e) The old abridgments, e. g. Rolle, sub tit. Action sur Case, Pur Parolls, abound in examples, many of them sufficiently grotesque. A select group of cases is reported by Coke, 4 Rep. 12 b— (f) P. 28, above. (g) Vicars v. Wilcocks (1806) 8 East 1. |