other words, as an asset. Lord Holt, in an action for malicious prosecution, said that one might maintain such an action for any of three sorts of damage: (1) "damage to the fame, if the matter whereby he is accused be scandalous"; (2) injury to his person by imprisonment; and (3) injury to his property by putting him to cost and expense unlawfully." The second is obviously an infringement of an interest of personality. The first may involve personality or substance, or both. It has been argued, however, that only the latter is involved. Thus Bower says:

"It may be granted that reputation in many respects differs from other forms of property and connotes certain ideas involved in the notion of 'person' or 'personality,' for . . . it is certainly a very special and strictly personal type of asset: it has some analogies, no doubt, to the right of the individual to his life, his limbs, or his liberty, which are all only 'property' in a somewhat metaphorical sense. . . . In so far, however, as individual honor, dignity, character, and reputation are recognized by the law as proper subjects of its protection and as being such that any injury thereto entitles the aggrieved party to the same forms of legal redress as the invasion of property strictly so called, it is permissible to consider these rights as assets, though assets of a somewhat peculiar description."

As to the proposition that the mode of legal redress for infringement of the right of reputation is the same as that employed for infringement of rights of property, it is enough to say that exactly the same mode of redress, namely, an action on the case for damages, is employed for any infringement of the right of physical or corporal integrity by an indirect injury. The point must be, therefore, that the interest, so far as the law recognizes it as a proper subject for protection, is essentially one of substance. Our law of defamation, a somewhat haphazard growth, representing the needs and the ideas of more than one time, does not admit of any rigorous analytical treatment. Historically it is quite false to treat the subject from the standpoint of a securing of interests of substance only. Analytically, if one takes the law as it is, much

71 Savill v. Roberts, 12 Mod. 208 (1692).

72 Code of Actionable Defamation, 275-276. Cf. the Oriental's view of the Englishman: "Is a man sad? Give him money, say the Sahibs. Is he dishonored? Give him money, say the Sahibs. Hath he a wrong upon his head? Give him money, say the Sahibs." Kipling, Dray Wara Tow Dee, In Black and White (Outward Bound ed.), 4.

of it is consistent with Bower's theory, though, as will be seen presently, if we accept his view, there are logical anomalies from the standpoint of such a theory which proceed from recognition that an interest of personality is involved. The law of the nonEnglish-speaking world recognizes an interest in honor as an interest of personality. Moreover, one's claim to a social and spiritual life is as clear as his claim to physical life. The respect of his fellows may be an asset, as his power to labor may be an asset. But in each case the highest and most real value may attach to the integrity of the spiritual person rather than to the power of economic employment. This may be true especially of economic employment of the confidence and regard of one's fellows. If securing the individual in his interest in maintaining his dignity and his honor, as parts of his personality quite as dear to him as the integrity of his skin, is dependent on the possibility of pecuniary assessment, it must be because of some inherent difficulty in securing such an interest legally, and not because the interest itself is essentially one of substance. If the two interests are closely connected, it is the more necessary to insist that they are fundamentally distinct. On the one hand there is the claim of the individual to be secured in his dignity and honor as part of his personality in a world in which one must live in society among his fellow men. On the other hand there is the claim to be secured in his reputation as a part of his substance, in that in a world in which credit plays so large a part the confidence and esteem of one's fellow men may be a valuable asset.

Many problems turn on the nature of the interest secured. Thus a juristic person can have interests of substance only. Hence defamation of a juristic person is only cognizable so far as the reputation of the association is an asset and is injuriously affected as such.73 Again, the much discussed question of use of the name of an actual person in fiction requires similar distinctions. It may be, as in the well-known case of "Cape Cod Folks" in its original form, that actual individuals are so described by their own names or by what are substantially their own names as to be made ridiculous to their neighbors and subjected to contempt and humiliation. Here the interest of honor is involved. On the other hand it may be that the claim amounts to no more than one of prop73 Oram v. Hutt, [1913] 1 Ch. 259.

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erty in the name, which its bearer seeks to hold inviolate from any use by authors, even though no reference to him personally is made or suggested. As no such interest of substance, where the name has no value as property, is recognized, the claim ought to fail. Between the two are cases where the interest is one of personality analogous to that secured by the so-called right of privacy. A sensitive person may be disturbed mentally because he chances to have the same name as a character in a popular novel. But he might chance to have the same name as a murderer or as a notorious criminal and might be annoyed by the "chaffing" to which the coincidence subjected him. As has been seen in another connection, the law cannot be asked to protect sensitiveness to this extent.7 One may have an odd or unusual name and so the coincidence may be striking. But there are obvious interests of great weight to be balanced against the individual interest here, and these, along with difficulties involved in the attempt to secure it by law, are decisive. Such cases, therefore, must come on the one side to an interest in substance, and it is obvious that property in the name cannot be asserted in these cases, or on the other side to infringement of an interest of honor by the humiliation of direct personal reference or obvious description of the individual.75 Another point which requires the same distinction is the common-law doctrine as to publication, that is, the requirement that the defamatory matter be uttered or made known to some person other than the one defamed. As Bower says justly, this is "a corollary from the notion of reputation as property. . . . "76 Hence in the Roman law and in the law of continental

74 Compare the case of defamation of the dead. "Damages will be given a man who is calumniated in his lifetime because he may be hurt in his worldly interests. . . . But the law does not regard that uneasiness which a man feels in having his ancestor calumniated. That is too nice. . . . If a man could say nothing against a character but which he could prove, history could not be written." Boswell, Life of Dr. Johnson (Birrell's ed.), IV, 25-26, quoted by Bower, Code of Actionable Defamation, 282. When the group of kindred were a recognized unit whose interests the law endeavored to secure, such a question might have been looked at otherwise. The honor of the kindred as a group might be involved. Now that the individual is the unit, the only interest is one in the mental comfort of the individual, which is obviously outweighed by the social interest in the free writing of history.

75 See Smith, Jones v. Hulton, Three Conflicting Judicial Views as to a Question of Defamation, 60 Univ. of Pa. Law Rev. 365, 461, especially the French case in the appendix, 479.

76 Code of Actionable Defamation, 294.

Europe, where the interest in honor, as an interest of personality, is regarded as well as the interest of substance, the requirement of publication does not obtain." This is true also in Scotland, where the Roman view is followed.78 That attempts to deal with this whole matter on the sole basis of an interest of substance err in omitting an important element is suggested by the struggle of courts to find publication in cases which obviously call for relief yet do not involve publication except in a strained sense.79

How far has the interest in honor, as an interest of personality, been recognized by legal systems in the past? How has legal recognition of this interest developed? Primitive law, it will be remembered, treated all injuries to personality as injuries to the honor of the person injured. In other words, the only, or at least the chief, individual interest which it recognized was the interest of the freeman in his honor. Even property interests were treated from this standpoint in early law. For example, in the Roman law originally, an injury to another's slave, if actionable, was actionable on the ground of insult to the owner.80 Systematic liability for injury to property as such came into the Roman law in the third century B.C. The primitive tendency was to treat all wrongs as injuries to personality, and all injuries to personality as insult. As has been seen, iniuria, which originally means "insult," was used in Roman law to designate all infringements of the interest of personality. But as they distinguished the interests involved, jurists came to recognize three different formis or types of iniuria. Those of the first type were called real injuries, that is, injuries to the physical person. Here, although the interest was originally regarded as one of honor, the law soon came to see that in truth it was an interest in body and life, in other words, an interest in the physical person. For such injuries the Roman law finally provided a pecuniary recompense to be fixed by the tribunal in view of the character of the injury and of the circumstances of the case, or in the older civil law of modern Europe honorable amends in the form of such apology as the

77 Gaius, III, § 220; Dig. XLVII, 10, 5, § 9. See references in n. 70, supra. 78 Bower, Code of Actionable Defamation, 463.

79 Delacroix v. Thevenot, 2 Starkie 63 (1817); Seip v. Deshler, 170 Pa. 334, 32 Atl. 1032 (1895); Fonville v. McNease, Dudley Law (S. C.) 303 (1838); Schmuck v. Hill, 2 Neb. Unoff. 79 (1901).

80 Dig. XLVII, 10, 15, § 35.

tribunal might require. Injuries of a second type are called symbolic injuries, that is, injuries to the honor or, as the Roman books said, to the dignity of the person. Examples of symbolic injuries are insulting words addressed to the person, insulting gestures, and the like. Here the injury is to the feelings of the complainant and the interest is an interest in his honor. In these cases the remedy might be a sum of money assessed by the tribunal as before, or in the older law of modern Europe it might be honorable amends. Injuries of the third type were called pecuniary injuries, that is, injuries to reputation, to credit, to social or business standing. Here there is injury to an interest of substance. In this case the remedy is reparation of the damage by such a sum of money as will compensate the person injured.81

In the new German code the matter is made very clear. Following the Roman law, the code requires intent to injure in the case of symbolic injuries. Where the injury is purely to the honor of the person there must be an intentional insult or intentional defamation. Here the remedy is a sum of money fixed in view of all the circumstances as in Roman law or publication of the judgment at cost of the wrongdoer.82 But if an untrue statement is made which is likely to injure the credit of the complainant or to injure his earning power, the German code makes the person who utters the defamatory statement liable at his peril for what he might have discovered by the exercise of diligence. In such a case, however, the only remedy is reparation for the actual pecuniary loss. 83 Thus the code recognizes that in this case the interest secured is an interest of substance, while in the former case it is an interest of personality. In truth our own law subconsciously recognizes something very like this in providing for punitive damages where there is a wanton wrong and limiting liability to actual damages in other cases. One should compare also the rule in slander requiring special damage, which amounts to requirement of injury to an interest of substance, except where the defamatory matter affected interests of substance on its face or contained a charge of crime involving corporal punishment by way of penalty and so endan

81 Salkowski, Institutionen des römischen Rechts, § 154; De Villiers, The Roman and Roman Dutch Law of Injuries,*24.

82 German Penal Code, § 188; Schuster, German Civil Law, § 288. 83 Schuster, German Civil Law, § 288.