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Commentary on the Laws of England

2005; Lippincott Williams & Wilkins; Volume: &NA;; Issue: 433 Linguagem: Inglês

10.1097/01.blo.0000159897.71699.c7

1528-1132

Henry H Sherk,

Criminal Law and Evidence

William Blackstone, Esq. 1720–1780 William Blackstone’s great work, Commentaries on the Laws of England, codified Anglo-Saxon law 8 years before the American Revolution. It became the basic work and study book for the legal profession in Great Britain and in the colonies thereafter and still serves as a standard reference text in law school libraries. In Volume III (Book the Third) in the section Private Wrongs, Blackstone addresses the issue of the physician-patient relationship and in so doing uses the term “mala praxis,” or malpractice, probably for the first time.1 He describes it as a “great misdemesnor (sic) and offence at common law whether it be for curiosity and experiment, or by neglect; because it breaks the trust which the party had placed at his physician... .” He grouped medical mala praxis with other nonviolent wrongs such as selling tainted food or by the “exercise of noisome trade which infects the air of the neighbourhood.” Blackstone described other injuries such as liable, slander, and “malicious indictments or prosecutions against a man’s reputation,” the latter probably presaging a defense against today’s epidemic of frivolous law suits. William Blackstone (1720–1780) (Fig 1) inaugurated courses in English Law at Oxford in 1758 after an apparently unsuccessful career as a practicing lawyer. His commentaries broke the tradition of teaching only Roman Law at English Universities and he, through his work, exerted tremendous influence on the legal profession at the time and still exerts influence today. In later years Blackstone re-entered practice, served in Parliament, and became a Judge and eventually Solicitor General to the Queen.Fig 1.: Solicitor General to Her Majesty William Blackstone, Esq., is shown.4. Injuries, affecting a man’s health, are where by any unwholesome practices of another a man sustains any apparent damage in his vigour or constitution. As by selling him bad provisions or wine;22 by the exercise of a noisome trade, which infects the air in his neighbourhood;23 or by the neglect or unskilful management of his physician, surgeon, or apothecary. For it has been solemnly resolved,24 that mala praxis is a great misdemeanour and offence at common law, whether it be for curiosity and experiment, or by neglect; because it breaks the trust which the party had placed in his physician, and tends to the patient’s destruction. Thus also, in the civil law,25 neglect or want of skill in physicians and surgeons “culpae adnumerantur; veluti fi medicus curationem dereliquerit, male quempiam fecuerit, aut perperam ei medicamentum dederit.” There are wrongs or injuries unaccompanied by force, for which there is a remedy in damages by a special action of trespass, upon the case. This action, of trespass, or transgression, on the case, is an universal remedy, given for all personal wrongs and injuries without force; so called, because the plaintiff’s whole case or cause of complaint is set forth at length in the original writ.26 For though in general there are methods prescribed and forms of action previously settled, for redressing those wrongs which most usually occur, and in which the very act itself is immediately prejudicial or injurious to the plaintiff’s person or property, as battery, non-payment of debts, detaining one’s goods, or the like; yet where any special consequential damage arises which could not be foreseen and provided for in the ordinary course of justice, the party injured is allowed, both by common law and the statute of Westm. 2. c. 24. to bring a special action on his own case, by a writ formed according to the peculiar circumstances of his own particular grievance.27 For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action;28 and therefore, wherever a new injury is done, a new method of remedy must be pursued.29 And it is a settled distinction,30 that where an act is done which is in itself an immediate injury to another’s person or property, there the remedy is usually by an action of trespass vi et armis: but where there is no act done, but only a culpable omission; or where the act is not immediately injurious, but only by consequence and collaterally; there no action of trespass vi et armis will lie, but an action on the special case, for the damages consequent on such omission or act. 5. Lastly; injuries affecting a man’s reputation or good name are, first, by malicious, scandalous, and slanderous words tending to his damage and derogation. As if a man, maliciously and falsely, utter any slander or false tale of another: which may either endanger him in law, by impeaching him of some heinous crime, as to say that a man has poisoned another, or is perjured;31 or which may exclude him from society, as to charge him with having an infectious disease; or which may impair or hurt his trade or livelihood, as to call a tradesman a bankrupt, a physician a quack, or a lawyer a knave.32 Words spoken in derogation of a peer, a judge, or other great officer of the realm, which are called scandalum magnatum, are held to be still more heinous;33 and, though they be such as would not be actionable in the case of a common person, yet when spoken in disgrace of such high and respectable characters, they amount to an atrocious injury: which is redressed by an action on the case founded on many ancient statutes;34 as well on behalf of the crown, to inflict the punishment of imprisonment on the slanderer, as on behalf of the party, to recover damages for the injury sustained. Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man.35 It is said, that formerly no actions were brought for words, unless the slander was such, as (if true) would endanger the life of the object of it.36 But, too great encouragement being given by this lenity to false and malicious slanderers, it is now held that for scandalous words of the several species before-mentioned, that may endanger a man in law, may exclude him from society, may impair his trade, or may affect a peer of the realm, a magistrate, or one in public trust, an action on the case may be had, without proving any particular damage to have happened, but merely upon the probability that it might happen. But with regard to words that do not thus apparently, and upon the face of them, import such defamation as will of course be injurious, it is necessary that the plaintiff should aver some particular damage to have happened; which is called laying his action with a per quod. As if I say that such a clergyman is a bastard, he cannot for this bring any action against me, unless he can show some special loss by it; in which case he may bring his action against me, for saying he was a bastard, per quod he lost the presentation to such a living.37 In like manner to slander another man’s title, by spreading such injurious reports as, if true, would deprive him of his estate (as to call the issue in tail, or one who has land by descent, a bastard) is actionable, provided any special damage accrues to the proprietor thereby; as if he loses an opportunity of selling the land.38 But mere scurrility, or opprobrious words, which neither in themselves import, nor are in fact attended with, any injurious effects, will not support an action. So scandals, which concern matters merely spiritual, as to call a man heretic or adulterer, are cognizable only in the ecclesiastical court;39 unless any temporal damage ensues, which may be a foundation for a per quod. Words of heat and passion, as to call man rogue and rascal, if productive of no ill consequence, and not of any of the dangerous species before-mentioned, are not actionable: neither are words spoken in a friendly manner, as by way of advice, admonition, or concern, without any tincture or circumstance of ill will: for, in both these cases, they are not maliciously spoken, which is part of the definition of slander.40 Neither (as was formerly hinted41) are any reflecting words made use of in legal proceedings, and pertinent to the cause in hand, a sufficient cause of action for slander.42 Also if the defendant be able to justify, and prove the words to be true, no action will lie,43 even though special damage has ensued: for then it is no slander or false tale. As if I can prove the tradesman a bankrupt, the physician a quack, the lawyer a knave, and the divine a heretic, this will destroy their respective actions; for though there may be damage sufficient accruing from it, yet, if the fact be true, it is damnum absque injuria; and where there is no injury, the law gives no remedy. And this is agreeable to the reasoning of the civil law:44 “eum, qui nocentem infamat, non est aequum et bonum ob eam rem condemnari; delicta enim nocentium nota esse oportet et expedit.” A Second way of affecting a man’s reputation is by printed or written libels, pictures, signs, and the like; which set him in an odious or ridiculous45 light, and thereby diminish his reputation. With regard to libels in general, there are, as in many other cases, two remedies; one by indictment and another by action. The former for the public offence; for every libel has a tendency to break the peace, or provoke others to break it: which offence is the same whether the matter contained be true or false; and therefore the defendant, on an indictment for publishing a libel, is not allowed to allege the truth of it by way of justification.46 But in the remedy by action on the case, which is to repair the party in damages for the injury done him, the defendant may, as for words spoken, justify the truth of the facts, and show that the plaintiff has received no injury at all.47 What was said with regard to words spoken, will also hold in every particular with regard to libels by writing or printing, and the civil actions consequent thereupon: but as to signs or pictures, it seems necessary always to show, by proper innuendos and averments of the defendant’s meaning, the import and application of the scandal, and that some special damage has followed; otherwise it cannot appear, that such libel by picture was understood to be levelled at the plaintiff, or that it was attended with any actionable consequences. A Third way of destroying or injuring a man’s reputation is, by preferring malicious indictments or prosecutions against him; which, under the mask of justice and public spirit, are sometimes made the engines of private spite and enmity. For this however the law has given a very adequate remedy in damages, either by an action of conspiracy,48 which cannot be brought but against two at the least; or, which is the more usual way, by a special action on the case for a false and malicious prosecution.49 In order to carry on the former (which gives a recompense for the danger to which the party has been exposed) it is necessary that the plaintiff should obtain a copy of the record of his indictment and acquittal; but, in prosecutions for felony, it is usual to deny a copy of the indictment, where there is any, the least, probable cause to found such prosecution upon.50 For it would be a very great discouragement to the public justice of the kingdom, if prosecutors, who had a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried. But an action for a malicious prosecution may be founded on such an indictment whereon no acquittal can be; as if it be rejected by the grand jury, or be coram non judice, or be insufficiently drawn. For it is not the danger of the plaintiff, but the scandal, vexation, and expense, upon which this action is founded.51 However, any probable cause for preferring it is sufficient to justify the defendant.