Page:The Green Bag (1889–1914), Volume 16.pdf/167

 120

the term special damage. It is actionable to say of a man that he is physically diseased; but you may call him a liar with impunity. You may not say of a surgeon that he is a bad operator, or of a lawyer that he is ignor ant of the law; but you may tell any stories you please about his private life and to the discredit of his personal character. And, most scandalous of all, in England, until very recently, any one was at liberty to slander a woman by the vilest forms of oral imputa tions upon her chastity, and the law gave her no redress. If, now, taking the law of slander as we find it, we examine the basis of the actionable i|u;ility of the particular imputations of which it is made up, it will be found to be as irralional and inconsistent as the selection itself. The principle of selection is past finding out. The one thing that is clear is that the right to reputation seems to have been completely lost sight of. ... There are three obvious methods of re forming the law of slander. The method commonly adopted among English speaking people is to leave intact the general distinc tion between libel and slander, and merely remove its worst hardships by extending the list of defamatory imputations which are ac tionable per se when publish.?- oraliy. This course has been adopted in England with re spect to imputations upon the chastity of women; but there it has stopped. Such im putations are believed to be universally ac tionable in this country. In some States fur ther additions have been made by statute to the list of oral imputations which are action able: adultery or want of chastity in general; impotence; incest and crimes against nature! false swearing; all words, which from their usual construction and common acceptation, are considered as insults, and lead to violence and breaches of the peace. This patch-work plan is quite in accordance with the spirit of English law reform, but it has little else to commend it. No doubt it is an improvement in the law simply to enact that imputations upon chastity, and some other additions of a like nature, shall be ac

tionable per sc. But this course does nothing towards removing the theoretical absurdity of the existing law; it would be, morever, at best merely temporary and imperfect. The injury and annoyance inflicted by particular imputations vary in different classes of so ciety, in different places and circumstances, and especially at different periods. No pos sible foresight in the enumeration of action able slanders could make the law reasonably just and equal, even for the present genera tion; and the next generation would have to do the whole work over again to meet al tered conditions. 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 impu tation, the degree of publicity given to it, or other circumstances surrounding its utter ance. 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 I7th, 1819. . . . The third method, which is alike the sim plest and the best, is to abolish at once the distinction between libel and slander, and as similate 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 en courage 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 Scotch men, are not less litigious than other people. And such a system has long worked well in