§ Order of the Day for the Second Reading, read.
§ *LORD MACNAGHTEN
My Lords, the object of this Bill is to remove what many eminent persons have considered a reproach to the administration of justice in England. As the law now 1705 stands, spoken words imputing un-chastity to a woman are not actionable unless it can be shown that the slander has resulted in some temporal loss. Loss of reputation, loss of friends, loss of health, exclusion from society are not regarded, and a woman who is assailed by an attack on her chastity by spoken words, however gross the slander may be, cannot appeal to the law to vindicate her character unless she can prove that she has sustained some pecuniary damage, or some loss of that kind. As regards written words the law is different. In that case an action is maintainable without proof of special damage. Eminent judges have over and over again found fault with this state of the law, and in this House, sitting in its judicial capacity, it has been described as unsatisfactory, and it has been denounced as barbarous. The late Lord Chief Justice and many other Judges, some of whom are still living, have observed that it is a very cruel state of the law, and have expressed a hope that the law may be amended in that respect. Under those circumstances this Bill was brought into the other House by Mr. Milvain, and it passed through all its stages in that House without objection. I see there are several noble and learned Lords present who are very much more familiar with this branch of the law than I am, and in their presence I will not do more than ask your Lordships to read the Bill a second time.
§ Moved, "That the Bill be now read 2a."—(The Lord Macnaghten)
§ THE LORD CHANCELLOR
My Lords, I confess I am placed in a position of very considerable embarrassment by the motion of my noble and learned Friend. He says that this Bill has gone through all the stages in the other House. Of course it has, or it would not be here, coming before your Lordships. But the noble and learned Lord did not tell us whether there had been any discussion upon this Bill in the other House. I should like to know very much whether there was any discussion upon it. I have not been able to find that a single word has been uttered on the subject of this Bill in the other House, and, certainly, to repeal a law which is coeval with the law of England, without any discussion, is a 1706 proceeding which is rather startling. I believe that the power for bringing actions for words spoken has been the subject of the greatest possible abuse, and every tribunal, I believe, and every judge at every period of history has said the same thing. One finds traces of it everywhere, and probably the most absurd decisions in cases of that kind, in which judges have been induced to say that words were used in mitiori sensu, in order to avoid giving everybody the power of bringing such actions. In very early times, in the reign of James I., restrictions were placed on facilities for bringing such actions by rendering it necessary that a certain amount should be recovered, or that no costs should follow; and that the actions should be brought within a certain time, limitations which are not applicable to other causes of action. I confess I am at considerable embarrassment on this subject, because one does not like to take the responsibility of moving that a Bill be read a second time this day six months when it has gone through the House of Commons, as the noble and learned Lord says, without objection, and I hesitate to take that course now; but I must say when the Bill gets into Committee, I shall endeavour to place upon its passing and coming into operation, such restrictions as to costs and otherwise as will diminish what appears to me to be the serious danger which would result from opening a new field of litigation upon this subject of words spoken. I am quite aware that it is possible to put this matter theoretically, and to represent a principle of this sort as being very wrong and as doing a great deal of mischief; and to say that a woman ought to be able to defend her reputation by bringing an action in such cases. It is very easy to put that theoretically, but I doubt very much whether this form of action would assist one modest woman to maintain her reputation. Under the circumstances, as I have said, I shrink from the responsibility of moving that the Bill be read a second time this day six months; and with that warning to my noble and learned Friend as to what I shall do in Committee, I shall not move the rejection of the Bill.
§ *LORD BRAMWELL
I do not share in the objections or in the dislike of 1707 the noble and learned Lord on the Woolsack to this Bill. It seems to me to be a most proper one. If a man or woman is called a thief, he or she can maintain an action for the injury, and most reasonably. Nobody will dispute that that is a reasonable thing, and that the law would be wrong if it did not permit it. But if an action can be maintained for that, surely an action ought to be maintainable for that which is quite as grievous an imputation, namely, impugning the chastity of a woman. Which of the charges is the worse? I am sure I do not know. I believe they are equally bad; and until the person who may be charged with the offence or delinquency has got a fresh character, why that person is practically banished from society, and is unable to get employment, or, in the case of a woman, what, as I should submit to your Lordships, has always been considered a most reasonable and desirable thing for a woman, unable to get a husband. Now, the noble and learned Lord says this will give rise to vexatious actions, and that costs will be increased. Well, I daresay it will be so—I suppose it will. I suppose, whenever you allow an action to be brought for anything, you open up a possibility of vexatious proceedings, and the only way for your Lordships to stop vexatious proceedings to a certainty is to stop all actions whatever, because as long as any are allowed there is a chance of vexatious actions being brought. With respect to costs, I am very glad to say the law now is, that there is a discretion in the judge whether costs shall be given, and they are often given against the plaintiff, even where he has got a nominal verdict for a farthing, or a few shillings. I do not, for my own part, apprehend that there will be any unreasonable or undue quantity of vexatious actions in consequence of this proposal of my noble and learned Friend. I shall not quote cases upon this subject at any length, but I think it might be some comfort to the noble and learned Lord on the Woolsack, if I refer to some authorities so as to show that this is not a modern notion. I will not trouble your Lordships with any facts in the cases, but just refer to the decisions. Holt, Chief Justice, said— 1708For his part, whenever words tended to take away a man's reputation he would encourage actions for them, because so doing would contribute much to the preservation of the peace.That was the opinion of Chief Justice Holt with respect to words spoken, and as it is 200 years old, no doubt it will have the respect of my noble and learned Friend. Possibly your Lordships may have heard of cases, inasmuch as no action would lie where assault and battery was committed; but I have another case to bring before your Lordships. Justice Fortescue says this in a case in 8 Modern Reports, which is also 200 years old—"The rule of construction, in actions for words spoken, is very different from what it formerly used to be; the maxim for spoken words, in amitiori sensu, has for a good while been suspended."
§ LORD BRAMWELL
I thought my noble and learned Friend said it was still in force. But Justice Fortescue says here, "It has been exploded." My noble and learned Friend said these actions would be too numerous, and the judges, in order to avoid them, had been compelled to construe words in amitiori sensu. Well, I can only say that was the opinion of those eminent judges 200 years ago. This learned judge says that the reason for expounding words in amitiori sensu has been for a great while exploded, and he adds—For nearly 50 or 60 years,that makes up two centuries and a half—whenever words are disreputable they are actionable. It was a rule of Holt, C.J., to make words actionable whenever they sound to the disreputation of the person of whom they were spoken; and this was also Hales and Twisden's rule, and I think it a very good rule.That was the opinion of Justice Fortescue—not the one who lived in the reign of Henry VI., but the one who lived in the time of the Georges. I see it is 8 George I. I have quoted to your Lordships similar opinions in approbation by Holt, by Hales, and by Twisden. Now just one word more, and I hope your Lordships will forgive me, for this, perhaps, is more relevant to the matter in hand. This is in 6 Modern Reports, page 148. It was an 1709 action for words spoken of a woman, and the particular word used was of the most offensive character. I do not trouble your Lordships with what the particular word was—If it were res nova, it were reasonable to make the first word actionable,that is to say—using the particular word I have mentioned—for no greater misfortune can befall a young woman, whoso well-being depends on having a good husband, than to be reputed a——,and then comes the word which I need not repeat—But the authorities are too many and great to run counter to them, and the reason of them is that fornication is a spiritual offence not punishable at Common Law; and an action would not be charging one with an offence of which the law takes no notice without special damage.The noble and learned Lord has said that subterfuges have been used in order to get rid of actions. Well, subterfuges have been used in order to maintain them, because if a woman could show she had lost two or three dinners, for instance, in consequence of words spoken, she is at liberty to maintain an action. "There was a time when heretics were put to death, yet it was never actionable to call a man a heretic." Well, I suppose that was also because it was a spiritual offence, like fornication. I hope these venerable authorities will incline my noble and learned Friend to look more favourably upon this Bill when it comes again before your Lordships. But I do declare that it is, to me, an outrageous thing that perhaps the most grievous charge—well, as grievous a charge as any that can be brought against a woman, may be brought against her, provided it is done by word of mouth without writing, with impunity, without a particle of justification for it.
§ *THE EARL OF SELBORNE
My Lords, I am, perhaps, one of the last who would like to extend the law of slander, or the law of libel in most cases; but, the law in regard to this particular class of cases has always appeared to me to be a reproach to us. It is a matter as to which I have wondered that it could have remained as it is for so long. Surely it cannot be denied that a woman may suffer as much wrong by being accused of unchastity, or adultery, 1710 as a man can by being accused of a criminal offence. I should have thought that nobody could doubt it. Now, I quite admit that an action for words spoken and published may sometimes be brought when the facts do not justify it, and that you have not the same means of reducing the fact to a certainty in such cases as you have in the case of writing, and to that extent there is, perhaps, some reason for the distinction between slander and libel. But if you are not to allow an action for this particular kind of slander on that ground, why do you allow it in other cases in which it is allowed by law? I should have thought this particular case about the last in which a causeless action would be likely to be brought by a woman, because in order to bring it, she must come forward and tell the world that she has been accused of unchastity, or adultery, which I think the generality of women would not be likely to do, if the fact were not so. Therefore, I own, I can hardly imagine a case in which vexatious and groundless actions are less likely to be brought. At the same time, if my noble and learned Friend on the Woolsack has any safeguards to propose, which he thinks should accompany this measure, I am sure they will receive, as they ought to receive, the most careful consideration.
§ *THE MARQUESS OF SALISBURY
I hardly like to intervene in a purely legal discussion, but, perhaps, this is a matter upon which a layman may venture to form a judgment as well as lawyers. I would venture, therefore, to make a suggestion to the noble and learned Lord, who spoke last. He spoke of an imputation of unchastity against a woman as the greatest wrong that could be done to her. I should only accept that statement if I might accompany it with this reservation, namely, that I might be allowed to insert the word "modest." It is no doubt the greatest wrong that can be done to a modest woman, but it is very little wrong to one who is not. It seems to me a matter of very great doubt whether you ought to allow a woman to make a claim for damages, and to ask for defence against that charge, unless you allow countervailing evidence to 1711 be adduced that she is not a modest woman.
§ LORD HERSCHELL
I entirely agree with the noble Marquess opposite; but I would point out that that would be so under the present law.
§ *THE MARQUESS OF SALISBURY
I did not mean to say on that occasion, but that she had not been previously modest.
§ LORD HERSCHELL
If a woman be of unchaste life, although not unchaste on the particular occasion, that would clearly be a matter to be considered in regard to damages. I should say that no such action would be likely to succeed. This Bill does not really alter the general law of slander and libel; it merely enables this particular thing to be a cause of action; but it leaves open all the other defences with regard to truth and other matters, which would be open at present in any libel or slander action—those defences would be open still.
§ THE LORD CHANCELLOR
Perhaps your Lordships will allow me to make one observation, although I have no right to speak again. I have only one remark to make in reply to what my noble and learned Friend said, and I will put it in the form of a question. It is—Whether he would be prepared to lay down the law as now existing which he quotes from Justice Fortescue, who quotes from Lord Hales, and other high authorities, that whatever is disreputable in words is actionable?
§ On Question, agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House to-morrow.