would be quite impracticable. To say that mental distress and loss of the opinion of others, with consequent exclusion from society, should be sufficient special damage to support an action, would be in effect to say that all slanders should be actionable.

2. Another method is to substitute for the present distinction, on the ground of mere form, some other classification of a more rational character, applicable to slander and libel alike, founded upon real and substantial distinctions, such as the nature of the imputation, the degree of publicity given to it, or other circumstances surrounding its utterance. In such a method the essential points would be the nature of the imputation and the degree of publicity given to it. This method was adopted in France by the Law of May 17th, 1819. Defamatory publications were divided into two classes, diffimation and injure, the latter being in turn subdivided into two kinds, and each of these three kinds of defamation constituted a distinct offence, and was subject to a prescribed measure of punishment. . . .

3. The third method, which is alike the simplest and the best, is to abolish at once the distinction between libel and slander, and assimilate the law of slander to that of libel. Its advantages are evident. It would put an end at once to the theoretical absurdity of the present law; it would be free from the mischiefs of needless refinement; it would be an efficacious and complete remedy for the mischief to be met; and it would, so far as appears, be a final and lasting settlement of the question. The only plausible objection to it seems to be that it might tend to encourage litigation and lead to oppressive and vexatious actions. These objections apply with quite equal force to the present law of libel. Moreover, in Scotland, where the remedy is alike whether the defamation be oral or written, there has been apparently no serious complaint on this score, and Scotchmen are not less litigious than other people. And such a system has long worked well in the State of Louisiana. Actions of libel are controlled by the law with respect to privilege and by the law of costs. In the case of writings these have been found sufficient to protect the interests of the public and of individuals, and to prevent frivolous actions, and they would do the same with oral publications.

It has been more than once attempted to make this change in English law. In 1816 Brougham introduced a bill in the House of Commons providing that all words, whether spoken or written, which were "in any way injurious to the character and reputation of the plaintiff," should be actionable. But the measure was lost because it contained clauses affecting State prosecutions for libel which raised party questions. The task was again essayed in 1843 under the competent guidance of Lord Campbell. The very important Act which bears his name was the final result of recommendations which embraced other points than those enacted, among which were the following:

"With a view to afford protection to fair fame, to guard honorable men from vexatious litigation, and effectually to put down traffic in calumny, the Committee have come to the following resolutions, to wit:

1. That an action should be maintainable for any words, spoken without just cause, tending to injure the reputation of another-e. g., words imputing want of chastity to a woman, or want of courage or veracity to a man.

1 In 1834 Daniel O'Connell introduced a bill on this subject; but it was very loosely drawn, and, whether so designed or not, would in fact have assimilated the law of libel to that of slander.

2. That in an action for words, unless the words impute an indictable offence, it shall be open to the jury, under the plea of not guilty, or non damnificatus, to consider whether, under the circumstances when the words were spoken, they were likely to injure reputation; and if they think that they were not, to find a verdict for the defendant, without any special justification."

The grounds of these proposals were thus stated in the Report of the Committee: 1

"At present, while for any words reduced into writing which in any way tend to injure reputation, though communicated to only one individual, the law gives a remedy, there is no remedy without proof of special damage for mere words, however injurious to reputation, and however publicly spoken, unless they impute an indictable offence, or apply to a man in his business, or import that he is laboring under an infectious disease; so that, falsely and maliciously to impute, in the coarsest terms and on the most public occasion, want of chastity to a woman of high station and unspotted character, or want of veracity or courage to a gentleman of undoubted honesty and honor, cannot be made the foundation of any proceeding civil or criminal; whereas an action may be maintained for saying that a cobbler is not skilful in mending shoes, or that any one has held up his hand in a threatening position to another. The Committee conceive that these distinctions, which are quite peculiar to the law of England, do not rest on any solid foundation, and that wherever an injury is done to character by defamation there ought to be redress by action. "There might be a danger of frivolous actions for words if costs were to be recovered by the plaintiff where the jury award only nominal damages, and if the jury were obliged to find a verdict for the plaintiff for all defamatory words without considering whether on the occasion when they were spoken they were likely to make any impression on the bystanders; but the Committee think that this danger will be obviated by the existing regulation, which takes away the right to costs where the damages are under forty shillings, and by allowing the jury to consider, in the cases in which an action is now given, whether, under the circumstances, the words were likely to injure reputation, and, without a special justification, to find a verdict for the defendant." 2

(2) Written Defamation (Libel)

153. THORLEY v. LORD KERRY

EXCHEQUER CHAMBER. 1812

4 Taunt. 355, 3 Camp. 214

THIS was a writ of error brought to reverse a judgment of the Court of King's Bench. The plaintiff below declared that . . . the defendThe report is printed in the Law Times, I, 341.

2 [NOTES:

"Proposed changes in law of libel and slander." (H. L. R., III, 86, 331; XVI, 148.)

In Cooper v. Seaverns,

Kan.-;105 Pac. 509 (1909), Burch, J., in a learned, sensible, and eloquent opinion, reviews the history of the law of slander in detail, and confirms the views represented in Mr. Veeder's article; the question of law was whether an imputation of unchastity in a woman is actionable without special damage proved.]

ant below, . . . maliciously did compose and publish, and cause and procure to be published of and concerning him, . . . the false, scandalous, malicious, and defamatory and libellous matter following. . . . "I sincerely pity the man (meaning the plaintiff below) that can so far forget what is due, not only to himself, but to others, who, under the cloak of religious and spiritual reform, hypocritically, and with the grossest impurity, deals out his malice, uncharitableness, and falsehoods." . . . Upon not guilty pleaded, the cause was tried at the Surrey spring assizes 1809, when the writing of the letter by the defendant was proved, and that he delivered it unsealed to a servant to carry, who opened and read it; a verdict was found for the plaintiff with 201. damages, and judgment passed for the plaintiff without argument in the Court below. The plaintiff in error assigned the general errors.

Barnewall, for the plaintiff in error, in Trinity term 1811, argued, that there were no words in this case, for which, if spoken, the action would be maintainable, and he denied that there was any solid ground, either in authority or principle, for the distinction supposed to have prevailed in some cases, that certain words are actionable when written, which are not actionable when spoken. He contended that all actionable words were reducible to three classes: 1. where they impute a punishable crime; 2. where they impute an infectious disorder; 3. where they tend to injure a person in his office, trade, or profession, or tend to his disherison. And these words do not come within

either of those classes. ..

The principle on

Dampier, in affirmance of the judgment. which actions may be sustained for words is rather narrowly laid down in the argument for the plaintiff in error, when the causes of action are said to be only crime, pecuniary damage, and infectious disease.

2 Wils. 403, Villars v. Monsey. Bathurst, J., held that writing and publishing anything of a man that renders him ridiculous, is a libel, and actionable; and fully recognized the distinction between written. and spoken slander.

MANSFIELD, C. J., delivered the opinion of the Court.

This is a writ of error, brought to reverse a judgment of the Court of King's Bench, in which there was no argument. It was an action on a libel published in a letter which the bearer of the letter happened to open. The declaration has certainly some very curious recitals. It recites that the plaintiff was tenant to Archibald Lord Douglas of a messuage in Petersham; that, being desirous to become a parishioner and to attend the vestry, be agreed to pay the taxes of the said house, that the plaintiff in error was churchwarden, and that the defendant in error gave him notice of his agreement with Lord Douglas; and that the plaintiff in error, intending to have it believed that the said earl was guilty of the offences and misconducts thereinafter mentioned (offences there are none, misconduct there may be), wrote the letter to the said earl which is set forth in the pleadings. There is no doubt

that this was a libel, for which the plaintiff in error might have been indicted and punished; because, though the words impute no punishable crimes, they contain that sort of imputation which is calculated to vilify a man, and bring him, as the books say, into hatred, contempt, and ridicule; for all words of that description an indictment lies; and I should have thought that the peace and good name of individuals was sufficiently guarded by the terror of this criminal proceeding in such cases. The words, if merely spoken, would not be of themselves sufficient to support an action.

But the question now is, whether an action will lie for these words so written, notwithstanding such an action would not lie for them if spoken; and I am very sorry it was not discussed in the Court of King's Bench, that we might have had the opinion of all the twelve judges on the point, whether there be any distinction as to the right of action between written and parol scandal; for myself, after having heard it extremely well argued, and especially, in this case, by Mr. Barnewall, I cannot, upon principle, make any difference between words written and words spoken, as to the right which arises on them of bringing an action. For the plaintiff in error it has been truly urged, that in the old books and abridgments no distinction is taken between words written and spoken. But the distinction has been made between written and spoken slander as far back as Charles the Second's time, and the difference has been recognized by the Courts for at least a century back. It does not appear to me that the rights of parties to a good character are insufficiently defended by the criminal remedies which the law gives, and the law gives a very ample field for retribution by action for words spoken in the cases of special damage, of words spoken of a man in his trade or profession, of a man in office, of a magistrate or officer; for all these an action lies. But for mere general abuse spoken, no action lies. In the arguments both of the judges and counsel, in almost all the cases in which the question has been, whether what is contained in a writing is the subject of an action or not, it has been considered whether the words, if spoken, would maintain an action. It is curious that they have also adverted to the question, whether it tends to produce a breach of the peace; but that is wholly irrelevant, and is no ground for recovering damages. So it has been argued that writing shows more deliberate malignity; but the same answer suffices, that the action is not maintainable upon the ground of the malignity, but for the damage sustained. So it is argued that written scandal is more generally diffused than words spoken, and is, therefore, actionable; but an assertion made in a public place, as upon the Royal Exchange, concerning a merchant in London, may be much more extensively diffused than a few printed papers dispersed, or a private letter; it is true that a newspaper may be very generally read, but that is all casual. These are the arguments which prevail on my mind to repudiate the distinction between written and spoken scandal.

But that distinction has been established by some of the greatest names known to the law, Lord Hardwicke, Hale, I believe Holt, C. J., and others. Lord Hardwicke, C. J., especially has laid it down that an action for a libel may be brought on words written, when the words, if spoken, would not sustain it. Com. Dig. tit. Libel, referring to the case in Fitzg. 122, 253, says there is a distinction between written and spoken scandal; by his putting it down there as he does, as being the law, without making any query or doubt upon it, we are led to suppose that he was of the same opinion. I do not now recapitulate the cases, but we cannot, in opposition to them, venture to lay down at this day that no action can be maintained for any words written, for which an action could not be maintained if they were spoken; upon these grounds we think the judgment of the Court of King's Bench must be affirmed. The purpose of this action is to recover a compensation for some damage supposed to be sustained by the plaintiff by reason of the libel. The tendency of the libel to provoke a breach of the peace, or the degree of malignity which actuates the writer, has nothing to do with the question. If the matter were for the first time to be decided at this day, I should have no hesitation in saying that no action could be maintained for written scandal which could not be maintained for the words if they had been spoken. Judgment affirmed.

DEPARTMENT 1. Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by C. F. Lathrop against John C. Sundberg and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with instructions.

Willett and Willett, for appellant.

McBurney and Cummings, for respondents.

FULLERTON, J. This is an action for libel. In his complaint the appellant, who was plaintiff below, alleged that he was a regular graduate osteopath from a school of osteopathy, holding a doctor's degree as an osteopathic physician from such school; that at the time of filing his complaint he was, and for a long time prior thereto had been, practising his profession in Seattle, in the State of Washington, having his office in the Eitel Building, in such city, which building was owned by the respondent, Crane Realty Company; that on or about March 16, 1908, the respondents published and circulated of and concerning him in his business and professional capacity a petition, addressed to the owners of the Eitel Building, in the following words: