Cooper v. Seaverns Supreme Court, Kansas, December 11, 1909. Reported in 81 Kansas Reports, 267

Burch, J. 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.

Very near the time when this state entered upon its separate constitutional existence the common-law rule fell under the censure of some of the ablest exponents of English justice.

[The opinion then sets forth a number of judicial criticisms of the common-law doctrine and proceeds:]

From the foregoing it appears that the rule under consideration resulted solely from the early seizure of jurisdiction over slander by the ecclesiastical courts, which could not award damages at all, and the inability of the temporal courts to strip that jurisdiction from their rivals except in cases involving special damages. It never did rest upon any principle of right or justice or any decent regard for character. It was unsuited to the true genius and real needs of the people over whom it tyrannized, even from the earliest times. It created anomalies in the law of defamation which rendered that law absurd and grotesque. For example, words “touching” some disreputable good-for-nothing in his work or trade were actionable. The most sensitive, cultivated, high-bred woman could be foully slandered with impunity. Written ridicule of the style of her hat gave ground for exemplary damages. She had no redress for spoken words inflicting one of the deepest wounds her sex can suffer. The rule was not merely insufferably wrong; it was wrong in a matter of so precious a nature that it was shocking. It was suppressed because it had long been reprobated as odious and was universally detested. The question now to be decided is, Does that rule obtain in this state?...

This is not the case of a principle which commands considerable approval, is founded upon fair reason, is merely of questionable wisdom, and which therefore ought to be followed until abrogated by the legislature. It is the case of an outlawed rule of negation whose sole function has always been to thwart natural justice in one of the dearest and tenderest of human interests. Therefore its rejection is justified by Duncan v. Baker (21 Kan. 99) and Whitaker v. Hawley (25 Kan. 674), supra.

The world is censorious, and a woman’s or a maiden’s reputation for modesty and chastity is an asset of inestimable value. Its loss renders her poor indeed. Injury in fact is the necessary result of such a deprivation, whether or not the sufferer can point to specific damage in a few paltry dollars or to liability to a trifling fine if the charge were true. Therefore the pleading of special damages as a basis for relief ought to be treated as a useless fiction, like the one condemned in Anthony v. Norton (60 Kan. 341), supra.

Taking into consideration the origin and history of the rule, the reason supporting it, its character, its consequences, and the degree of its appositeness to our constitution and system of laws, it does not apply to the conditions or meet the needs of the people of this state, and consequently it is not a part of the law of this state.

This problem has been met and solved by different states of the American Union in different ways. In some the rule is obediently observed. In some it is followed under protest—is characterized as a disgrace to the state—but still is followed. In some statutes have relieved from its iniquity in whole or in part. In some it is frankly repudiated by the courts because it lacks the sanction of reason and justice. This court has no legislative functions. As Lord Campbell said, it is here only to declare the law. Under the statute of 1868 it must determine whether a rule of the common law invoked in a judicial proceeding contravenes the constitution or statutes of the state, or has been modified by judicial decision, and whether it is adapted to the conditions and is suitable to the needs of the people of the state. This duty has been discharged in the present case.