BROOKER v. COFFIN
Supreme Court, New York, November, 1809.
Reported in 5 Johnson, 188.
Spencer, J., delivered the opinion of the court.[[437]] The first count is for these words, “She is a common prostitute, and I can prove it;” and the question arises, whether speaking these words gives an action without alleging special damage.[[438]] By the statute (1 R. L. 124), common prostitutes are adjudged disorderly persons, and are liable to commitment by any justice of the peace, upon conviction, to the bridewell or house of correction, to be kept at hard labor for a period not exceeding sixty days, or until the next general sessions of the peace. It has been supposed that, therefore, to charge a woman with being a common prostitute, was charging her with such an offence as would give an action for the slander. The same statute which authorizes the infliction of imprisonment on common prostitutes, as disorderly persons, inflicts the same punishment for a great variety of acts, the commission of which renders persons liable to be considered disorderly; and to sustain this action would be going the whole length of saying, that every one charged with any of the acts prohibited by that statute, would be entitled to maintain an action for defamation. Among others, to charge a person with pretending to have skill in physiognomy, palmistry, or pretending to tell fortunes, would, if this action is sustained, be actionable. Upon the fullest consideration, we are inclined to adopt this as the safest rule, and one which, as we think, is warranted by the cases. In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, then the words will be in themselves actionable;[[439]] and Baron Comyns considers the test to be, whether the crime is indictable or not. 1 Com. tit. Action on the Case for Defamation, F, 20. There is not, perhaps, so much uncertainty in the law upon any subject as when words shall be in themselves actionable. From the contradiction of cases, and the uncertainty prevailing on this head, the court think they may, without overleaping the bounds of their duty, lay down a rule which will conduce to certainty, and they therefore adopt the rule I have mentioned as the criterion. In our opinion, therefore, the first count in the declaration is defective.
The defendant must, therefore, have judgment.[[440]]
COOPER v. SEAVERNS
Supreme Court, Kansas, December 11, 1909.
Reported in 81 Kansas Reports, 267.
Burch, J.[[441]] The common law of England was that verbal imputations of unchaste conduct on the part of a female were not actionable, in the absence of special damages, unless they related to a person in some office or employment for which morality and virtue were qualifications (Folkhard, Law Slan. & Lib. 7th ed., p. 43), and except in the local courts of the city of London, the borough of Southwark and the city of Bristol, where it was the custom to whip strumpets at cart’s tail, tingling a basin before them (Odgers, Lib. & Slan., p. *84). This rule has been accounted for on the supposition that in the early, formative days of the common law social relations were rude, manners were unrefined, and the people were accustomed to hearing gross and vulgar epithets freely tossed about without regarding them seriously. (Odgers, Lib. & Slan., p. *86.) The case of Oxford & ux. v. Cross, in the king’s bench, Trinity term, 41 Elizabeth (1599), Coke’s Reports (vol. 2, p. 307; part 4, p. 18a), is cited in support of this view, wherein it was said that a custom “to maintain actions for such brabling words is against law.” Pollock and Maitland discover a better state of civilization from the early records than the view indicated takes for granted:
“We should be much mistaken, however, if we believed that the temporal law of the middle ages gave no action to the defamed. Nothing could be less true than that our ancestors in the days of their barbarism could only feel blows and treated hard words as of no account. Even the rude lex Salica decrees that if one calls a man ‘wolf’ or ‘hare’ one must pay him three shillings, while if one calls a woman ‘harlot’ and cannot prove the truth of the charge, one must pay her forty-five shillings. The oldest English laws exact bot and wite if one gives another bad names....”
This being true, a reason for the rule must be found elsewhere than in any essential brutality of the early Englishman. The doctrine appears to be fully accounted for through the partition of authority in England between the spiritual and the temporal courts. (Odgers, Lib. & Slan., p. *86.) It is familiar history that in the middle ages, for reasons and by means which need not be sketched here, the all-powerful ecclesiastics acquired jurisdiction over a large portion of the most important concerns of life—testaments, matrimony, and among innumerable others, defamation. This breach of the social order was regarded as a sin and was punishable in the spiritual courts as such....
The struggle to limit and define the authority of the ecclesiastical courts was long and bitter, and frequently exhibited some striking features. In the progress of the duel the common-law courts used as their principal weapon the king’s writ of prohibition to restrain the exercise of jurisdiction over causes which they desired to adjudicate. The ecclesiastics returned the fire by excommunicating those who sued out such writs. By and by an increasing number of pecuniary matters came to be regarded as pertaining to things of this world, and the civil courts finally succeeded in maintaining their right to administer relief in an action on the case where specific damages were occasioned by slanderous words.
[After discussing the jurisdiction of the ecclesiastical courts, the opinion proceeds:]
Although the English judges felt constrained to follow the common-law rule until it was superseded by act of parliament, it did not satisfy their consciences. In 1759, in the case of Jones v. Herne, in the Court of King’s Bench (2 Wil. 87, 95 Eng. Rep., Full Reprint, 701), Chief Justice Willes, after holding it actionable to say a man is a forger, added that if it were res integra he would hold that calling a man a rogue or a woman a whore in public company is actionable.