4

1

3

eighteenth century. But Coke had laid it down that if the secular courts gave a remedy for any wrong, the jurisdiction of the ecclesiastical courts was thereby ousted, unless it was expressly saved; and the principle was applied to actions for defamation in Palmer v. Thorpe. No doubt the recognition of this principle was hastened by the fact that the ecclesiastical courts could not give damages. At any rate it is clear that the jurisdiction of the ecclesiastical courts, even in this period, was fast coming to be limited to cases in which the defamation consisted of an imputation of some offence punishable in those courts. The complete recognition of this principle, coupled with the abolition of the ex officio oath, caused the jurisdiction of the ecclesiastical courts over defamation to become almost negligible. But, as we have seen, it was not finally abolished till 1855.8

9

7

5

Throughout this period the popularity of the common law remedy was growing. Coke complained of the frequency of these actions; and we shall see that, at the end of the period, a small book was devoted to summarizing the results of the cases.10 With the characteristics of the law made by these cases I must deal later.11 Here I need only draw attention to its most salient characteristic, and the consequences flowing therefrom.

The common law conceived of defamation simply as a civil wrong causing damage to the person defamed. Damage was the gist of the action. However insulting the words, no action lay unless the court could see that damage must ensue as a natural and probable result of the words spoken; 12 and the fact that the court, from its desire to discourage these actions, scrutinized the words and reasoned from them in the same way as they scrutinized and reasoned from the words of a writ or a pleading often produced some very absurd results.13 From this conception of

1 Crompton v. Butler (1790) 1 Hagg 460; Smith v. Watkins (1792) ibid 467. 2 Co. Litt. 96b, cited vol. i 621.

3 (1583) 4 Co. Rep. 20a-" If defamation touches or concerns anything determinable at the common law, the Ecclesiastical judge shall not have cognisance of it."

"Although such defamation is merely spiritual, and only spiritual; yet he who is defamed cannot sue there for amends or damages, but the suit ought to be only for the punishment of the sin, pro salute animæ," ibid.

5 Carr, loc. cit. 270-272; only one case is cited at p. 271, in which the words complained of imputed an offence punishable by the common law.

6 Ibid 269, 270; vol. i 610-611.

818, 19 Victoria c. 41; vol. i 620.

7 Carr, loc. cit. 272.

9"We will not give more favour unto actions upon the case for words than of necessity we ought to do where the words are not apparently scandalous, these actions being now too frequent," per Coke C.J. Crofts v. Brown (1617) 3 Buls. 167; cp. Stanhope and Blith's Case (1585) 4 Co. Rep. 15a, where Wray C.J. said that, "the judges had resolved that actions for scandals should not be maintained by any strained construction or argument, nor any favour given to support them, forasmuch as in these days they more abound than in times past.'

10 Below 393.

12 Ibid.

11 Pt. II. c. 5 § 2.

13 Ibid.

2

3

the gist of the action three consequences followed. In the first place publication to some third person was essential, because otherwise no damage could have ensued;1 and truth was a defence, because a person ought not to be allowed to receive compensation for damage caused to a character which he did not possess. In the second place, being a personal action for a tort, it died with the person. In the third place, the common law courts did not at this period recognize any difference between spoken and written defamation. It is true that the majority of cases were cases of spoken defamation; and the action is often called an action on the case for words. But we do get occasionally actions for written defamation, which are obviously treated by the court in exactly the same way as actions for words.*)

Now it is clear that this treatment of the subject of defamation is wholly inadequate. It regards it simply from the point of view of the damage suffered by the injured person. But it is quite clear that defamation has also a bearing both upon the security, and upon the peace of the state. By a seditious libel upon the rulers of the state the security of the state-especially in a period of great political and religious change-may easily be imperilled. By a libel upon a private individual-especially if he be powerful and influential-the maintenance of the peace is even now endangered, and, in the sixteenth century, was very gravely imperilled. It is true that the legislation had shown some perception of these facts when they passed the statutes which created the offence of scandalum magnatum.5 The offence was both of a civil and of a criminal character-the proceedings were taken by the prosecutor "tam pro Rege quam pro seipso." " But we have seen that these statutes were very seldom enforced ;7 and, as was not uncommon with these offences created by mediæval statutes, their civil tended to become more prominent than their criminal aspect. The result was that, unless defamation was of

8

116

1 Broughton's Case (1583) Moore K.B. at p. 142 per Walmsley J.; Edwards v. Wooton (1607) 12 Co. Rep. 35; Barrow v. Lewellin (1616) Hob. 62—"All actions of that kind [actions on the case] do suppose in auditu quamplurimorum propalavit etc."; below 210.

2 Lord Cromwell's Case (1578-1581) 4 Co. Rep. 12b, 13b, 14a; below 210, 211-212. 3 Vol. iii 576-579; below 211; cp. Hudson, op. cit. 103.

See Broughton's Case (1583) Moore K.B. 141; cp. Buckley v. Wood (1592) 4 Co. Rep. 14b-that was a case of written defamation which was held not to be actionable; but clearly the court did not consider that the fact that it was written made any difference to the principles applicable; cp. Veeder, The History of Defamation, Essays, A.A.L.H. iii 458; Carr, English Law of Defamation L.Q.R. xviii 394. 5 Vol. iii 409-410.

7 Vol. iii 409.

6 Cromwell's Case (1578-1581) 4 Co. Rep. 12b. Thus all the damages went to the injured party, Throgmorton v. Church (1720) 1 P. Wms. at p. 690; and, though the defendant could not justify because it was a qui tam action, Earl of Shrewsbury v. Sir Th. Stanhope (1595) Poph. at p. 69, he could explain the words in order to show that they were not defamatory, ibid;

the king or queen and punishable under special statutes relating thereto,1 its criminal aspect was wholly neglected by the common law. This large gap in the criminal law was filled, and on the whole adequately filled, by the Star Chamber.

2

The Star Chamber.-From the first the Council and the Star Chamber recognized that, in the interests of the peace and security of the state, a strict control must be maintained over the printing, publication, and importation of books. It followed from this that the Star Chamber, from an early date, assumed jurisdiction over all cases in which its rules as to the manner of publishing, and as to the matter published were infringed. In some cases, indeed, its jurisdiction was strengthened by statute. I have already mentioned the statutes which dealt with libels against the king or queen, and with the publication of false and fantastical prophecies. But the jurisdiction of the Star Chamber did not depend upon these statutes. The court had assumed the power to deal with defamation in general on the ground that it disturbed the security or the peace of the state; and it is clear from Hudson's treatise, and from Coke's summary in the case De · Libellis Famosis, that it had adopted and acted upon some of the principles of Roman Law."

As Coke pointed out in the case De Libellis Famosis the defamation with which the court dealt fell into two classes. It might be either of a magistrate or other public person, or it might be of a private person.

The first class of libels might be, and at this period generally were, directly dangerous to the security of the state. They incited to sedition. Thus we find a very large number of cases against persons who had traduced magistrates of all kinds, whether or not in relation to their judicial or their administrative work, and whether or not their offences could be classed as scandalum

Cromwell's Case 4 Co. Rep. at p. 14a. But the line between the special justification successfully pleaded in Cromwell's Case, which really amounted to the plea that the words were not defamatory, and a plea of justification in the ordinary sense, was not very clearly expressed, and perhaps caused Hudson, op. cit. 104, to adopt the mistaken view that truth was a defence to such an action.

1 Vol. iv 511-512.

2 Ibid 305-306; for the regulations of the Star Chamber and the later licensing Acts see vol. vi c. 7.

Nicolas vii xxxi seqq.; Dasent i 120 (1543)-booksellers to return lists of books bought and sold within the last two years; ii 311, 312 (1549)-as to the recognizances to be given by printers; xiii 350, 399, 400 (1581-1582)-enquiry as to libels published in the University of Oxford, and the punishment of the offenders; xxiv 200, 222 (1593)-authorities of the City of London to enquire into libels upon foreign artificers; suspected persons ordered to be tortured to disclose accomplices. 4 Vol. iv 511, 512. Les Reportes del Cases 39.

6 Dig. 47.10 de injuriis et famosis libellis; see especially Dig. 47.10.5. 9-10, and 47.10.6.

7 (1606) 5 Co. Rep. 125a.

magnatum.1 "Let all men," it was said in the Star Chamber, "take heede how they complayne in wordes against any magistrate, for they are gods." In fact all libels of this kind were regarded as a scandal of the government;"" for what greater scandal of government can there be than to have corrupt or wicked magistrates to be appointed and constituted by the king to govern his subjects under him." Thus it was laid down that

any private delivery or writing of a libel is a great offence: yea, to see, hear it, or report it." It was therefore "a perylouse thinge to keepe a lybelle especiallye yf it touche the state;" and, "if it be a magistrate or a publicke offycer to whome the same is delyvered, he oughte to examyne the matter and (if it be in his power) to punishe the same: otherwyse wth all possible speed to acquaynte the lordes of the kinges Councell wth all, and not to conceale the same, or to doe nothinge aboute the same.' It is clear that these doctrines very materially contributed to the safety of the state in the troublous times of the sixteenth century. But it is equally clear that when, in the seventeenth century, the nation was divided into the two hostile parties of those who favoured the prerogative and those who favoured the Parliament, and when these doctrines were applied by the court of Star Chamber to uphold the prerogative, their rigid application did more than anything else to substitute, for the reverence felt for the court in the Tudor period, those feelings of fear and hatred, which led to its abolition when Parliament got the victory in 1641.

The second class of libels-libels against private persons-was punished on the ground that they tended to provoke breaches of the peace. "For although the libel be made against one, yet it incites all those of the same family, kindred, or society to revenge, and so tends per consequens to quarrels and breach of the peace, and may be the cause of shedding of blood." Indeed it was

1 Hudson, op. cit. 101-102; Nicolas vii 306 (1542)—groundless accusation against the President and Council of Wales; South v. Ward (1631) Rushworth, Pt. II. vol. ii App. 31-slandering a Justice of the Peace; Atty.-Gen. v. Jones, ibid-libelling a master in Chancery; Atty.-Gen. v. Fowlis (1634), ibid 65, 66—slandering Lord Wentworth and the Council of the North; Smith v. Crokew and Wright (1632) Cases in the Star Chamber (C.S.) 38-40-writing and publishing a libel on a plaintiff in Chancery and on the court of Chancery.

2 Les Reportes del Cases 176-177.

4 Les Reportes del Cases 225.

35 Co. Rep. at f. 125a.

Ibid 372-373; “if one finds a libel (and would keep himself out of danger), if it be composed against a private man, the finder either may burn it, or presently deliver it to a magistrate; but if it concerns a magistrate or other public person, the finder ought presently to deliver it to a magistrate, to the intent that by examination and industry, the author may be found out and punished," De Libellis Famosis, 4 Co. Rep. at f. 125b; Richardson C.J. laid down a similar rule in 1632, Cases in the Star Chamber (C.S.) at pp. 151-152.

"De Libellis Famosis, 5 Co. Rep. at f. 125a; in 1607 it was resolved in the case of Edwards v. Wooton by the judges and the court of Star Chamber that, “yf a VOL. V.-14

clearly necessary for the Star Chamber thus to punish libels against private persons, if it was to succeed in its attempt to put down duelling. Unless some sort of adequate redress was provided for provocative insults, its ordinances against duelling were bound to be a dead letter.

It followed from the view which the Star Chamber entertained of the nature of the offence of libel that it differed very considerably from the nature of the offence which was redressible by a common law action for damages. In the first place truth was no defence. "In a settled state of Government the party grieved ought to complain for every injury done him in an ordinary course of law, and not by any means to revenge himself, either by the odious course of libelling or otherwise." 2 Further, the fact that it was true might make it more likely to result in a breach of the peace-" for as the woman said she would never grieve to have been told of her red nose if she had not one indeed.” In the second place, the fact that it was not published was no defence.1 Hudson tells us that the " precedents are infinite" for punishing those who have sent scurrilous letters to other persons. And it should be noted that the writer and contriver, and, if it was published, the publisher could be punished. What amounted to publication was perhaps not quite clear at this period. Coke and Hudson lay down the law in different ways; but Coke's view that there must be some active repetition to others, and that merely hearing it or copying it without divulging it to others, is not publication, has prevailed. man will wryte a pryvate letter defamatorye and not otheryse publishe yt eyther before or after the wrytinge, he shall not have an action of the case; but forasmuche as the same dothe provoke malice and breache of the peace and revenge yt shalbe punished in this Courte, and nippe it dum seges in herba; for being a letter onelye kepte cloase yt gyuethe no cause of accion because he hathe no dammages. And this beinge an offence that dothe provoke revenge, bringe daunger to the state and common weale et interest reipublicæ, and therefore an offence in this Cowrte to be severelye punished," Les Reportes del Cases 344; S.C. 12 Co. Rep. 35.

5

1 Above 200-201; Hudson, op. cit. 103; Bacon's argument in the case of Priest and Wright, Spedding, Letters and Life of Bacon iv 406; Carr, L.Q.R. xviii 391; cp. Bl. Comm. iv 150.

2 De Libellis Famosis (1606), 5 Co. Rep. at f. 125b; Hudson, op. cit. 102-103. 3 Ibid 103. 4 Edwards v. Wooton, 12 Co. Rep. 35; above 209 n. 6.

5 Hudson, op. cit. 101. 6 Lamb's case (1611) 9 Co. Rep. 59b. "It was resolved, that everyone who shall be convicted in the said case, either ought to be a contriver of the libel, or a procurer of the contriving of it, or a malicious publisher of it, knowing it to be a libel.”

7 Coke said in Lamb's case, "If one reads a libel that is no publication of it, or if he hears it read it is no publication of it, for before he reads or hears it, he cannot know it to be a libel; or if he hears or reads it, and laughs at it, it is no publication of it; but if after he has read or heard it, he repeats it or any part of it in the hearing of others, or after that he knows it to be a libel, he reads it to others, that it is an unlawful publication of it; or if he writes a copy of it, and does not publish it to others, it is no publication of the libel. . . . But it is great evidence that he published it, when he, knowing it to be a libel, writes a coyy of it;" on the other hand Hudson, op. cit. 102, said "To hear it sung or read, and to laugh at it, and to make merriment with it, hath ever been held a publication in law."