CURRENT LEGAL ARTICLES.
VAN VECHTEN VEEDER, whose scholarly writings are familiar to readers of THE GREEN BAG, begins in the December number of the Columbia Law Review a series of articles 'on "The History and Theory of the Law of Defamation," which are sure to attract the favorable attention of lawyers interested in the development of the common law. In an extremely interesting way Mr. Veeder traces the growth of the law of defamation from the early Leges Barbarorum down through the seignorial and the ecclesiastical courts, the Star Chamber, and the king's courts of common law. Early in the Middle Ages (says Mr. Veeder) reputation was amply protected in England by the combined secular and spiritual author ities. In the course of the nationalization of justice by the king's judges the jurisdiction of the seignorial courts fell into decay; and, after a long and bitter struggle, the juris diction of the ecclesiastical courts was also absorbed by the royal tribunals. When, however, the king's courts acquired jurisdiction over defamation, during the latter half of the sixteenth century, various social and political conditions combined to contract the actionable right, or remedy. The king's courts granted only a limited remedy, the selection being based partly upon the char acter of the imputation, partly upon the con sequences resulting therefrom; moreover, even this limited remedy was little concerned in theory with the right to reputation as such. By reason of its growth in this way the early common law of defamation con sisted merely of a series of exceptions to en tire license of speech. When, at length, early in the seventeenth century, the poten tialities of the printing press dawned upon the absolute monarchy, the emergency was met not by further additions to the list of actionable imputations, but by a direct im portation of the Roman law, without regard to Roman limitations, and with certain ad ditions adapted to the purpose in hand. This special provision for written or printed defamation, first adopted in the criminal law,
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eventually became also a principle of civil judicature. In this way a new principle of actionable defamation, based upon mere form, was introduced in the law. The origi nal common law doctrine of defamation, based upon the nature of the imputation, be came stereotyped as the law of spoken defa mation, or slander; the doctrine inherited from Roman law, through the Star Chamber, became the law of written and printed defamation, or libel. The English law of defamation, therefore, was first limited by a process of selection, and then confused by a formal distinction which is not only unknown in other systems of law, but is also wholly accidental in original and irrational in prin ciple. After stating the distinction between libel slander—"Any written words which injure one's reputation are libellous; but many words which would be actionable if written are not actionable if merely spoken. In the case of slander a plaintiff must satisfy the jury that the words spoken impute the com mission of a crime, or the presence of certain contagious disorders, or that they disparage him in the way of his office, profession or trade, in all other cases he must prove spec ial damage, that is, that he has sustained some pecuniary loss as a direct consequence of the utterance of the words complained of."—Mr. Veeder concludes: It remains only to consider whether there is any rational basis for this distinction as a test of actionable quality. The process of attempting to give a rational or scientific basis to legal rules which have their origin in historical accidents is familiar to students of English law; the law of defamation has been its favorite field. Yet it is easily de monstrable that none of the reasons usually given for the distinction affords any con vincing explanation why certain words if written are actionable, while the same words if spoken are not. These reasons apply, in fact, only to the extent of the damage, not to the cause of action. If one's reputation has in fact been injured by the spoken words, he ought to be allowed to recover some damages, although it may be true that, had
