Select cases on defamation to 1600

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£ef*en g o t i tt y FOUNDED 1887 To encourage the study and advance the knowledge of the History of English Law

1985 Patron HIS ROYAL HIGHNESS THE PRINCE PHILIP, DUKE OF EDINBURGH, K.G. President PROFESSOR S. F. C. MILSOM, Q.C., f .B.a . Vice-Presidents P rofessor C harles D onahue J r . P rofessor R ichard H. H e lm h o lz D r. R. F. H unnisett Professor P. G. Stein, f .b .a . T he R t . Hon . Sir V ictor W indeyer , k .b .e., c .b .,

d .s .o ., e .d .

Council Professor Thomas G. Barnes Mrs. Marjorie Chibnaii, f .b .a . Dr. M. T. Cianehy The late The Right Hon. Lord Diplock Professor G. R. Elton, F.B.A. The Right Hon. Lord Fletcher Mr. P. N. Gerrard The Hon. Mr. Justice Goulding Professor R. H. Graveson, C.B.E., q .c . Professor C, J. Ramson, Q.c. Mr. E. R. Heward, c .b . Professor J. C. Holt, F.B.A. Professor A. M. Honors, F.b .a . Sir Jack Jacob, Q.c, Professor H. R. Loyn, f .b. a .

The Right Hon. Sir Robert Megarry, f .b . a . His Honour Judge E. F. Monier-Williams Sir Godfrey Morley, O.B.E., T.D. Mr. M. J. Prichard The Right Hon. Lord Roskill Professor G. O. Sayles, f .b .a . The Right Hon, Lord Scatman, O.B.E. Professor A. W, B. Simpson, f .b .a . Sir Robert Somerville, K.C.v.o. Sir Richard Southern, f .b .a . Mr. G. D. Squibb, Q.c. Mr. S. A. Stamler, Q.C. Mr. P. W. E. Taylor, Q.c. Professor Samuel E. Thorne The Hon. Mr. Justice Vinelott Colonel Frederick Bernays Wiener

Literary Directors

Mr. D. E. C. Y ale, f . b .a .

D r. J. H. Baker, f .b .a .

Honorary Treasurer Mr . Brian J. P r ic h a r d (8 New Square, Lincoln’s Inn, London, WC2A 3QJ) Secretary Mr . V ictor T u n k e l

(Faculty of Laws, Queen Mary College, Mile End Road, London, El 4NS) Trustees Mr . E. R. H e w a rd , c .b . Mr . Brian J, P richard T he R ight H on . L ord Scarman, o .b .e . Honorary Secretaries and Treasurers Overseas Australia: Mr. L. J. D owner

(Department of Mediaeval Studies, Australian National University, Canberra 2600) Canada: D r , I an K yer (Fasken & Calvin, Box 30, Toronto-Dominion Centre, Toronto M5K tC 1) New Zealand: Professor G. W. Hinde (Faculty of Law, University of Auckland, Private Bag, Auckland 1) United States : D r. E dith G. H enderson (Harvard Law School Library, Langdell Hall, Cambridge, Mass. 02138)

SELECT CASES ON

DEFAMATION TO 1600

EDI T ED FOR THE S EL DEN SOCI ETY BY

R. H. HELMHOLZ Professor o f Law in the University o f Chicago

LO N D O N SELDEN SOCIETY 1985

CONTENTS PAGE

Preface ................................................................................................ v Ab b r e v ia t io n s ..................................................................................... ix In t r o d u c t i o n ..................................................................................... xi 1. Scope of the V o l u m e ............................................................. xi 2. Ecclesiastical D e f a m a t i o n ................................................................xiv I. The Canon L a w .............................................................xiv Auctoritate dei patris . . . . . . . xiv The law of the Western C h u rc h .............................................. xvi Infamia and canonical purgation................................... xx The Stubbs-Maitland controversy . . . . xxiv II. The Elements of D efam ation.................................................. xxvi (a) Crimen imponunt . . . . . . . xxvi (b) F a l s o ................................................................................ xxx (c) M a l i c i o s e ..................................................................... xxxii (d) Cum infamatus non sit apud bonos et graves . . xxxiv (e) Unde purgatio indicatur . . . . . . xxxvi (f) Vel alio modo g r a v e tu r ..................................................xxxvii (g) Excommunicamus . . . . . . . xxxviii III. Relations with other C o u r t s ......................................... xli (a) Defamation and the secular courts . . . xli (b) Disappearance of jurisdiction over imputations of secular c r i m e s .............................................................. xliii (c) Sixteenth-century ecclesiastical defamation . . xiv 3. Defamation in the Local C o u r t s ....................................................xlviii I. In tro d u c tio n ..............................................................xlviii II. The Nature of Defamation in the Local Courts . . xlix (a) Defamation as a form of trespass . . . . xlix (b) The local-court remedy and ecclesiastical d e f a m a tio n ............................................................. lii III. Fate of Local-Court J u r is d ic t io n .............................................. lviii (a) The fourteenth cen tu ry ..................................................... lviii (b) Possible reasons for the disappearance . . . lxi (c) The six teenth-century......................................................lxiv C o n c l u s i o n ................................................................................. lxv 4. Defamation in the Royal Court.,: The Early Years . . lxvi I. In tro d u c tio n ................................................................ lxvi II. First Cases and G ro w th ...................................................... lxvii Background and precedents.....................................................lxvii Earliest entries of defamationactions . . . . Ixxii (vii)

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III. Legal Aspects of the Earliest Cases . . . . lxxv Actionable words . . . . . . . lxxvi Special damage and injuryto professional reputation lxxix Early pleading p r a c t i c e ...................................................lxxxii 5. Defamation in the Royal Courts: The Elizabethan Remedy lxxxvi I. In tro d u c tio n ...........................................................................lxxxvi II. The Plaintiffs D e c l a r a t i o n ............................................... lxxxvii Imputations of a secular c r i m e ....................................... lxxxviii The Mitior sensus r u le ...............................................................xcii Special c a t e g o r i e s ...............................................................xcv Difficult and disputed cases..................................................... xcix Signs of c h a n g e ........................................................................ ciii Possible explanations for change................................... cv III. The Defendant’s A n s w e r ..................................................... cvi The general denial and demurrer . . . . cvi The plea in j u s t i f i c a t i o n ......................................................cvii The special t r a v e r s e ............................................................. cviii T he Cases I. Cases in Ecclesiastical C o u r t s .......................................... 1 II. Cases in Local C o u rts............................................................ 27 III. Cases in Royal C ourts............................................................. 41 IV. Selected R ep o rts...................................................................... 75 Table of Ca s e s ............................................................................. 93 Index of People and Pl a c e s ................................................... 99 Index of Subjects........................................................................................ 107

ABBREVIATIONS Forms of Citation: Ecclesiastical causes are cited by name and diocese, the modern record repository for each being given below. For local courts, the name, date and present location of the court roll have all been given in the notes. Cases taken from the plea rolls of the royal courts are cited by name, Public Record Office reference and date. References given to canon law texts and commentaries are given by Causa, quaestio and canon for Gratian’s Decretum (e.g., C. 1 q. 1 c. 1) and by book, title and chapter for the Decretals (e.g., X 1.1.1.). Reference to the work of medieval canonists is given by the text on which they were commenting, in accordance with standard forms of citation. Bath & Wells Somerset Record Office, Taunton. BL British Library. Canterbury Library of the Dean and Chapter, Canterbury Cathedral. Chester Cheshire Record Office, Chester. Chichester West Sussex Record Office, Chichester. Cod. Codex Justiniani. Councils & Councils & Synods with Other Documents relating to the English Synods Church II: 1205-1313, Ed. F. M. Powicke and C. R. Cheney (1964). CP 40 Plea Rolls of the Court of Common Pleas (Public Record Office, London). Dig. Digesta Justiniani. Library of the Department of Palaeography and Diplomatic, Durham University of Durham. Cambridge University Library. Ely Exeter Devon Record Office, Exeter. Gl. ord. Glossa Ordinaria (to canon and civil law texts). Greater London Record Office. GLRO Hereford Hereford County Record Office, Hereford. Harvard Law School. HLS Justice, of the Court of King’s Bench or Common Pleas. J. Plea Rolls of the Court of King’s Bench (Public Record Office, KB 27 London). LI Lincoln’s Inn, London. Joint Record Office, Lichfield. Lichfield Guildhall Library, London. London Law Quarterly Review. LQR Norwich Norfolk Record Office, Norwich. (ix)

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PRO Provinciale Rochester Salisbury SS St Alban’s WAM Winchester X Y.B. YLS York

SELECT DEFAMATION CASES

Public Record Office, London. William Lyndwood, Provinciale {seu Constitutiones Angliae) (Oxford, 1679). Kent County Archives, Maidstone. Wiltshire Record Office, Trowbridge. Selden Society. Hertfordshire Record Office, Hertford. Westminster Abbey Muniments. Hampshire Record Office, Winchester. Liber Extra {Decretals of Gregory IX). Year book. Yale Law School (manuscript deposited in the Beinecke Library, Yale University). Borthwick Institute of Historical Research, York.

I NTRODUCTI ON 1. Scope

of the

V olume

This volume presents cases and introductory commentary on the private law of defamation, as found in the records of the principal courts where actions for defamation were heard: the courts of the Church, those of manor and borough, and the common law courts at Westminster. Its starting point is 1222, the date of the Council of Oxford, at which the English Church promulgated the provincial Constitution on the subject. Its terminal date is 1600, less than half a century before the first English treatise on the law of slander was published by John March. The aim of the editor’s research has been to discover, and to present, the action as it appeared in ordinary civil litigation. The question has been: what legal rights were ordinarily available to persons injured by slanderous words, and in what courts were those rights enforced? The study of relationships between the different court systems has provided a spur for and a subsidiary theme of the research. The volume covers private defamation. Criminal prosecutions fall outside its scope, even though it is undeniable that they were sometimes used to seek private redress. Thus, the Court of Star Chamber, the statute Scandalum Magnatum and criminal jurisdiction over slander exercised at the assizes are not dealt with in these pages. The advantages of detailed examination of one aspect of the subject, the belief that civil actions lie at the heart of the law, and the demands of time have required the exclusion of what is, admittedly, an important topic of legal history, one which well deserves exploration. However, jurisdiction on the criminal side is a discrete subject, more concerned with dangers to public order and less concerned with legal definition than is the private law of defamation. Concentration on the ordinary round of civil cases makes a useful study. In keeping with its concentration on ordinary litigation, the volume is based largely on record sources. With the exception of some representative royal court reports from the sixteenth century, the cases printed come exclusively from records kept by the courts themselves. The editor has examined the learned commentary on the subject, and, in the introductory sections, he has attempted to integrate it with the story told by the cases. However, the usefulness of nonrecord sources on this subject is limited. The canonists, whose work might be expected to cover the law practised in the ecclesiastical courts, dealt with the law administered on the Continent. This, as will be shown below, took a different shape from the canon law enforced in the English Church courts. For the local courts of borough and manor, there is no commentary to study, at least on the subject of defamation. If these courts are to be examined at all, they must be approached through their records. Even for the royal courts official records provide much the best source. The number of reported cases, which contain (xi)

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what judicial and legal comment there was, is surprisingly small, although manuscript reports do contain considerable numbers of useful slander actions. Moreover, primary use of the records helps avoid what can be the real danger of anachronism. Because the developed law of libel and slander took a somewhat different shape from the earliest remedy, it has been easy to read back later doctrine into the early cases. The truism that lawyers customarily see the present in the past is well illustrated by the history of defamation, and reliance on record sources provides one way of overcoming the problem. The extent of record survival has largely determined the kind of research that has gone into this volume. For the ecclesiastical courts, thirteen dioceses have left either act books or cause papers from the period before 1530, and the editor has examined a large part of this material. For the post-Reformation material, for which almost all English dioceses have records surviving in relatively regular sequence, the effort has necessarily been more selective. Samples of the forms of pleading and depositions have been drawn from the different dioceses, enough to give relative certainty that they are representative. However, the editor has not tried to read more than a sprinkling of the vast quantity of act books still in existence. The amount of substantive information derived from those act books which the editor actually examined was not great enough to warrant a more extensive search. Material from local courts exists in great profusion, chiefly in the form of manorial court rolls. The editor has examined systematically thirty-three manors from which ten or more rolls have survived. The records of about forty other local jurisdictions have also been surveyed less systematically, normally because fewer court rolls remain. Twenty-two counties are represented. For borough courts, the most surprisingly informative of the records surveyed, the editor has found seven examples with records from around 1300 to the end of the sixteenth century, and he has worked systematically through most of this material. The plea rolls of the common law courts at Westminster have presented the greatest challenge and claimed the largest share of the editor’s time. Because of their bulk, any searcher must content himself with some sort of statistical sample, at least after the middle of the sixteenth century. The reigns of Henry VIII and Edward VI can be covered fairly completely for the King’s Bench, and the editor has done this. Over the course of the reigns of Mary and Elizabeth, however, the rolls become very bulky and only about one-third of the rolls could be examined. For the Common Pleas, which enrolled process entries throughout the century, the problem posed by the size of the rolls is much greater. The editor has examined those of about 17% of the terms for the period before Elizabeth’s reign, and about 10% of the terms during her reign. For some rolls, the editor noted all actions on the case for words; for others he noted only those which appeared at all unusual. Sixteenth-century printed reports and the relatively more abundant cases in manuscript reports have furnished the principal supplementary source of royal court cases. Manuscripts kept in the British Library and in Lincoln’s Inn have

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been examined in detail. In the United States, manuscript reports in the libraries of Harvard and Yale Law Schools have also produced many useful cases. These cases have posed some real problems of interpretation for understanding the state of the law during Elizabeth’s reign. There is sometimes apparent incongruity between them and the record evidence. Explaining that seeming incongruity has been one of the editor’s most puzzling tasks, and it is one of the principal themes of Part Five below. By the end of the day, in any event, the outlines of the law of defamation as enforced in the courts of church, manor or borough, and royal courts seemed reasonably clear. Some of the editor’s prejudices were confirmed by the research. The centrality of the ecclesiastical definition of defamation throughout the period was the chief of these notions that the court records supported. Some of his prejudices, however, were overturned. The general availability of alternative remedies in local and ecclesiastical tribunals during the medieval period was the principal notion which proved to be mistaken. It cannot be pretended that the research presented here has answered all important questions satisfactorily. Indeed, many remain in the mind of the editor, and thoughtful readers will doubtless find many other problems and deficiencies in the pages which follow. Nonetheless, the material surveyed supports the conviction that the study of record evidence in sufficient quantity provides a coherent story of the way English law evolved.

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2. E cclesiastical D efamation I. THE CANON LAW

Auctoritate dei patris The English law of defamation had its effective origin in a provincial Constitution of the Council of Oxford (1222). Convoked by Archbishop Stephen Langton to promulgate the decrees of the Fourth Lateran Council (1215) and to establish supplementary local rules, the Oxford Council enacted a series of constitutions for the province of Canterbury. One of the supplementary constitutions, having no immediate connnection with the Lateran decrees, dealt with defamation.1 It formed a part of a larger series of general excommunications meant to prevent abuses of judicial procedure and to help maintain the peace of the realm. The Constitution declared ipso facto excommunicate any person who maliciously imputed a crime to another. The Constitution did not provide a penalty for uttering words calculated to harm another’s reputation or to injure him in credit or trade. Still less did it encompass any language likely to subject another to hatred, ridicule, or contempt. For the words to amount to defamation in a legal sense there must have been a crime imputed. This coupling of defamation with the imputation of a crime was to have long and significant effects in English law, both spiritual and temporal. The Constitution was commonly referred to in legal practice as Auctoritate dei patris, from the incipit of the series of excommunications of which it formed part. It read: Excommunicamus omnes illos qui gracia odii, lucri, vel favoris, vel alia quacunque de causa maliciose crimen imponunt alicui, cum infamatus non sit apud bonos et graves, ut sic saltern ei purgatio indicatur vel alio modo gravetur.12 We excommunicate all those who, for the sake of hatred, profit, or favour, or for whatever other cause, maliciously impute a crime to any person who is not of ill fame among good and substantial persons, by reason of which purgation at least is awarded to him or he is harmed in some other manner. The Constitution was repeated in thirteenth-century diocesan statutes within the province of Canterbury.3 A variant version was adopted in the northern diocese of York, and the dioceses of Durham and Carlisle followed suit.4 One can be sure that this Constitution provided the basis for medieval court practice. It was regularly inserted in ecclesiastical-court formularies of English provenance, so that the lawyers attached to the consistory courts would have

1 The canons of the Fourth Lateran Council are contained in J. D. Mansi, Sacrorum conciliorum nova et amplissima collectio (1759-98), xxn, cols 979-1058. Implementation of the decrees in England is discussed in Marion Gibbs and Jane Lang, Bishops and Reform 1215-1272 (1934). 2 Councils & Synods, I, 107. 3 Ibid. I, 213 (Coventry), 275 (Lincoln); 332 (London); 357 (Norwich); 387 (Salisbury); 466 (Chichester); 521 (Ely); 626 (Wells); 723 (Winchester); ii, 1058 (Exeter). The Constitution was also reiterated at subsequent provincial councils: Ibid. I, 677 (Lambeth 1261); II, 849 (Reading 1279); ii, 906 (Lambeth 1281) 4 Ibid. I, 435 (Durham); 496 (York); 629 (Carlisle).

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turned to it in composing their libels, or statements of claim.1 The fifteenthcentury English canonist, William Lyndwood, glossed it extensively as the basis of the law of defamation in the English Church,12 and court documents themselves also took their phrasing and presumably their substance directly from Auctoritate dei patris.3 The Constitution was designed to be read publicly and repeatedly in parish churches as a way of bringing it to the notice of laymen.45To judge by surviving depositions of witnesses, who testified that they had frequently heard the Constitution read,s this was not empty injunction, and it would therefore have been familiar to laymen and ecclesiastical lawyers alike. It provided the substance of the law of defamation throughout England. To a modern lawyer, one of the most immediately striking things about the Constitution’s text must be that it did not expressly provide a remedy in favour of the person defamed. It merely excommunicated the defamer. However, in practice this made less difference than might be thought. Because the canon law held that a person could not in ordinary circumstances do penance and be restored to communion without making suitable amends to the person sinned against, it followed that a party aggrieved by a public offense against him had a right to resort to an ecclesiastical tribunal to compel public satisfaction. He could seek the canonical punishment of the defamer and a remedy for himself. This was part of normal canonical procedure.6 Nor did it matter for this purpose that the law provided that the sentence of excommunication was incurred automatically by the act of defaming. Rather than resulting from a judicial sentence, the malicious imputation of a crime to another brought with it excommunication ipso facto under the English Constitution.7 However, it was ordinary procedure for such sentences latae 1 The language of the Constitution is repeated in the following ecclesiastical formularies: BL Royal MS. 11 A. xi, ff. 6v-7r, MS. Harl. 2179, ff. 65v-66r; Inner Temple Library, London, Petyt MS. 511.3, f. 96; Canterbury Cathedral Library, MS. D. 8, f. 9r; Salisbury Diocesan Records, 15th Century Precedent book ff. 161r-162v. 2 Provinciate, 345-48. 3 A typical sentence is a causa diffamationis read in part: ‘Idcirco nos commissarius antedictus solum deum pre oculis habentes prefatam Johannam Pope in maioris excommunicationis sentenciam contra huiusmodi diffamatores in constitutione provincie Cant’ que sic incipit Ex auctoritate dei patris etc. provide et auctoritate sufficienter latam dampnabiliter incidisse et earn ligatam fuisse et esse pronunciamus et declaramus’: Pope c. Pope (1456), Canterbury Act book Y.1.5, f. 47v. ' 4 Councils and Synods I, 275, 332; and see also C. R. Cheney, English Synodalia o f the Thirteenth Century (1941) 46. 5 E.g., Peter Bencher, a witness whose deposition is recorded in Chylton c. Garden (1415), Canterbury Deposition book X.10.1, f. 54v, testified ‘quod sepius audivit pronunciatum sive publicatum in ecclesia sua parochiali ubi nunc moram trahit et etiam perantea in ecclesia parochiali Sancte Mildrede Cant’ ubi etiam moram traxit quod omnes diffamatores sunt excommunicati.’ William Hayward, chaplain at Hingham, whose deposition is recorded in Wodthorpc. Bayly (1500), Norwich Deposition book DEP/1, f. 16r, testified that ‘sepius audivit constitutionem publicatam et diversis vicibus ipsemet earn publicavit.' A post-Reformation equivalent is found in Powell c. Morgan (1566), Salisbury Act book 3, f. 32, in which a public apology was to be made after ‘the priste dothe reade the homilie againste slaunderes.' See infra p. xlvi, for the changes in the course of the 16th century. 6 See H. Coing, ‘English Equity and the Denunciatio Evangelica of the Canon Law' (1955) 71 LQR 223. 7 Lyndwood,Provinciate, 345 s.v. auctoritate.

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sentenciae (as they were called) to be declared against particular individuals by public courts.1 It made notorious the fact of excommunication, and a party aggrieved had the right to ask for it. Some differences in law did hinge on the distinction between the two ways of incurring excommuncation.12 But the availability of a private remedy in an ecclesiastical court was not among them. The Law o f the Western Church The law administered in England’s ecclesiastical courts was only one part of a system of canon law spanning Western Christendom. It is both an important, and a traditional, question to begin with the question of where Auctoritate dei patris fit within the general canon law. Undertaking such an inquiry provides a useful introduction to the subject of verbal wrongs. It also shows something of the diversity of local custom which existed within the medieval Church, and provides a corrective for the English school of legal historiography which has viewed the canon law as if it had been meant to operate like a modern code. That school has regarded the canon law as a unified system, having its substantive provisions guaranteed by the right of appeal to the Roman court. The history of the English law of defamation shows how anachronistic such a view is. Local custom was too important, too persistent, and too pervasive for the medieval canon law to be approached in the terms of legal positivism. The fundamental texts of the canon law were collected in what Maitland called ‘the three papal lawbooks’.3 That is Gratian’s Decretum (1140), the Decretals (1234) of Gregory IX, and the Liber Sextus (1298) issued by Boniface VIII. Initial recourse should be had to the Decretum, if only because the Council of Oxford antedated the official promulgation of the Decretals in 1234. Several texts in Gratian’s work do bear on defamation, and some of them are quite consistent with Auctoritate dei patris. However, the Decretum did not provide the English law of defamation; nor could it have been the inspiration for Auctoritate dei patris in any but a general sense. The distinctive language of the English constitution is not taken from any of the texts in the Decretum bearing on the subject, and those texts themselves show that it was not Gratian’s purpose to lay out a consistent law of defamation. Each of them served a subsidiary role in addressing a different point Gratian wished to develop, as for example, the rule that those who sought to accuse a bishop of a crime must themselves be free from infamiaf or the principle that it was unjustifiable to make a public accusation without being able to prove the accusation’s truth.5 That is, while there were canons incorporated into the Decretum which showed 1 Antonius de Butrio, Commentaria ad X 5.39.9, no. 3: ‘Tertio nota quod excommunicatus a canone est denunciandus, et compellere debet episcopus alios ipsum evitare.' 2 Lyndwood. Provinciate, 345 s.v. auctoritate, noted the lack of need for full canonical citation, citing the opinion of Joannes Andreae. See Eugene Vernay, Le "Liber de Excommunicacione” du Cardinal Berender Fredol precede d'une introduction hislorique (1912), xxxvi-xlviii; Peter Huizing, T h e Earliest Development of Excommunication Latae Sententiae by Gratian and the earliest Decretists' (1955) 3 Studio Gratiuna 277, esp. 315-17. J F. W. Maitland, ‘Church, State, and Decretals,' in Roman Canon Law in the Church of England (1898), 98. 4 C .6 q . I. ? C. 5 q. 6.

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that slanderers might suffer penalties, Gratian used them only as part of his treatment of a subject other than the law of defamation. Even within the texts themselves, uncertainty about what constituted wrongful slander emerges from a close examination. Some of the canons spoke as if only offences by the clergy were covered;1 others purported to deal with accusations and calumnies uttered by any person.2 The range of penalties mentioned was wide and potentially confusing: from ‘exclusion from the kingdom of God,’3 to punishment by whipping,4 to infliction of the lex talionis.5 Most important, the canons themselves provided no definition of what was required for language to be slanderous in a legal sense. Whereas some seemed to require a judicial accusation, others used vague terminology like ‘contumelious matters’6 or ‘words of baseness’7 or simply ‘falsehoods’8 in referring to words which would render the speaker subject to canonical discipline. If one looks in the Decretum for one text which might lead to a canonical remedy for defamation, perhaps the best candidate is a canon attributed to Pope Hadrian I and also found in several prior canonical collections. It states that ‘anyone who shall formulate a writing or slanderous words publicly against the reputation of another, if he does not prove the writing, shall be whipped.’9 At the very least this text was capable of inspiring a statement of the principle that defamation was cause for ecclesiastical sanction. It is quite possible that it, or one of the other canons found in the Decretum, was in the back of the minds of the English bishops at the Council of Oxford. On the other hand, it is equally evident that the English council adopted a narrower definition of defamation than this text stated, and that the wording of Auctoritate dei patris was not borrowed from it. It is also clear that the point Gratian made by including the canon was the necessity for proof of defamatory writings; it was not a text meant to establish a remedy. Much the same can be said of the other texts in the Decretum. Although they may have provided general justification for the English Constitution, they were not its immediate source. The evidence shows that the Council of Oxford was making its own decision about a legal rule. It should be no cause for wonder that this was required, for no consistent or adequate legal definition of defamation is forthcoming from the Decretum. This is no indictment of Gratian of course, for it was not his purpose to provide such a definition. However, it does serve to show the need for the English Church to provide a specific constitution of defamation in 1222 if it desired to have a specific and workable remedy. Looking simply to the Decretum would not in itself have produced one. Thus, although Auctoritate dei patris did not necessarily contradict the law found in the 1 E g., Dist. 46 c. 5; C. 5 q. 6 c. 3. 2 E.g., Dist. 46 c. 4; C. 5 q. 6 c. 7. 3 C. 6 q. 1 c. 16: ‘non habet partem in regno Dei.’ 4 C. 5 q. 1 c. I. 5 C. 5 q. 6 c. 2: ‘penam debet incurrere quam, si probasset, reus utique sustineret.’ 6 C. 5 q. 1 c. 1: ‘verba contumeliosa'. 7 Dist. 46 c. 6: ‘verbis turpibus’. 8 C. 5 q. 6 c. 1. 9 C. 5 q. 1 c. 1: ‘Qui in alterius famam publice scripturam aut verba contumeliosa conlinxerit. et repertus scripta non probaverit, flageiletur.'

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Decretum and may have found justification in its pages, neither was the Constitution a simple restatement of that law. It represented a conscious choice by the Council of Oxford. If one moves forward in time, to the Gregorian Decretals and to the abundant commentaries which are the best guides to the substance of the medieval canon law, the results of comparing the English remedy with the formal law are, if anything, more puzzling than a comparison with Gratian’s work. It often happened that what Gratian had left open or uncertain was put into more definite juridical form by the work of Raymond of Pennafort and by the later canonists. But this did not happen with the law of defamation. No title ‘De diffamationibus’ appears in the Decretals. No explicit treatment of the subject appears. And, to judge by the law as expounded by later commentators, Auctoritate dei patris was broader and, at the same time, somewhat narrower in scope than examination of the formal canon law would lead us to expect. The English Constitution was broader in that it offered a remedy between laymen for an essentially secular wrong. Certain wrongs were considered inherently spiritual under the classical canon law: fornication, for example.1 Private slander not amounting to blasphemy or contempt of ecclesiastical authority, however, did not fall into this class, and it was a principle of canon law that ordinarily laymen should not invoke spiritual jurisdiction in civil matters. Several texts in the Decretals state the principle that where a secular issue was at stake, ecclesiastical judges should not intervene.12 It is therefore surprising to find that the great bulk of defamation causes in the English ecclesiastical courts - being litigated between laymen - apparently violated the rule. There were, however, several well-established exceptions to the general jurisdictional rule under the canon law. Some were contained in the texts themselves. Others were developed by the canonists. Innocent IV (d. 1254), for example, listed eleven exceptions.3 Panormitanus (d. 1445) enumerated sixteen.4 Joannes Andreae (d. 1348) summed up the rule and the two most important exceptions: ‘A layman may not sue a layman before an ecclesiastical judge over a civil matter unless in default of secular justice or unless custom allows it.’5 This of course leaves some room for manoeuvre. It might be said that customary practice in England left defamation to the ecclesiastical forum, and consequently there was no violation of canonical principles.6 Alternately, it might be argued in justification that since the royal courts offered no regular 1 Hostiensis, Lectura ad X 2.2.11 (Ex tenore), no. 3; Lyndwood, Provinciate, 96 s.v. huiusmodi. 2 X 2.2.10 (Licet ex suscepto)-, X 2.2.11; X 2.1.13 (Novit ilte). 3 Apparatus ad X 2.2.10, no. 3. 4 Commentaria ad id., nos 6-11. 5 Novella Commentaria ad id., no. 1: ‘Laicus laicum super re civili coram ecclesiastico iudice convenire non potest nisi in defectum iusticie secularis vel nisi consuetudo id habeat. h E.g., Panormitanus, Commentaria ad id., no. 6: ‘Primus casus est quando hoc habet consuetudo.’ The possible extent of this exception is illustrated by Hostiensis, Lectura ad X 2.2.6 (Ex transmissa), no. 2: ‘Sed et secundum generalem consuetudinem gallicanam quasi quaelibet causa ad forum ecclesiasticum trahi potest, ipsi vero exceperunt quod quaestio feudalis erat.’ See generally, R. Wehrle, De la coutume dans le droit canonique (1928).

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remedy, intervention by the Church was the only way of doing justice in cases where harm had been caused by words. Therefore the English courts were merely fulfilling the supplementary role enjoined upon them by canon law.1 These two possible exceptions offer the possibility of rationalising the Constitution with the formal canon law. Neither is without difficulty: for instance, secular justice was available in parts of England through the medium of local courts.12 Nevertheless it is fair to conclude that the official canon law was broad enough to permit the shape English practice took. Lyndwood described the law of defamation without embarrassment as to the source of the Church’s jurisdiction and no recorded canonical exception was taken in litigation to the jurisdiction of the ecclesiastical courts. However, it remains true that on this score Auctoritate dei patris provided a wider jurisdiction for the Church courts than the medieval commentaries on the canon law would lead one to expect. On the other hand, the coverage of the Constititution was in some ways narrower than that provided by the canon law. Aside from the jurisdictional question, the canonists generally adopted the broad concept of defamation of the Roman law of iniuria. In Roman law slanderous words were treated as one way a person might be injured. Any abuse (contumelia) or intentional insult (convicium) which was likely to injure a man’s reputation or bring contempt upon his person gave rise to a legal remedy. Thus, it was actionable to call another man a thief. But it was equally actionable to call him a blockhead, to say that he was of illegitimate birth, or even to call him blind, with the intent to do him harm.3 The emphasis was on the harm to a person’s reputation rather than strictly on the matter imputed. For this reason the range of defamatory words actionable according to the civil law could never be limited as narrowly or defined with the exactness of the English remedy. Canonical texts assumed the validity of the civil law’s concept of verbal injury where there was proper jurisdiction over the parties. A decretal of Gregory IX held that kif damage is caused or injury is inflicted on anyone through your fault . . ., it is necessary that you make amends for it.’4 Verbal injuries, the glossa ordinaria stated, were included in the decretal’s coverage.5 Although the Roman law of actions was not incorporated within the canon law, the more lenient imploratio iudicis being favoured as a way of avoiding the 1 Hostiensis, Lectura ad id., no. 9: *Iste est ergo unus casus in quo iudex ecclesiasticus potest se intromittere de iurisdictione seculari, quando scilicet iudex secularis non invenitur, . . . . Secundus cum secularis negligit iusticiam facere." 2 See below, pp. lix-lxi. 3 See Hostiensis, Summa Aurea v, tit. De iniuriis el datrmo da to, no. 6; Antonius de Butrio, Commentaria ad X 5.36.9 (Si culpa tua), no. 1. A fuller treatment is contained in M. T. GrelletDumazeau, Trade de la dijjamation de /'injure et de I'outrage (1847); C. F. Amerasinghe, Defamation and other Aspects o f the Actio Iniuriarum in Roman-Dutch Law (1968). 4 X 5.36.9; ‘Si culpa tua datum est damnum vel iniuria irrogata, seu aliis irrogantibus opem forte tulisti, . . . iure super his satisfacere te oportet, nec ignorancia te excusat, si scire debuisti, ex facto tuo iniuriam verisimiliter posse contingere vel iacturam.’ 5 Gl. ord. ad X. 5.36.9 s.v. Ignorancia'. ‘Et illud scias quod iniuria fit aut re aut verbis. Re, quotiens manus infertur; verbis, quotiens convicium dicitur.' See also Antonius de Butrio, Commentaria ad X 2.27.23 (Cum te), no. 3: ‘Quaero primo, quot modisfiat iniuria. Die, quod factiset verbis . . . Unde Gregorius super Job, in prin., Aliquando plus turbant verba quam verbera.’

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procedural limitations of the formal system of actions, the canon law did adopt the substantive civil law notion that words as well as physical acts could do compensable harm.1 The later canonists make this substantive coverage clear. Hostiensis (d. 1271), for instance, wrote, ‘And whoever shall say or do anything in order to diminish the reputation of another is held for iniuria.'1 2 Panormitanus, commenting on the passage from the Decretals given above, wrote, ‘Note firstly from the text that also in the canon law one is held to make satisfaction for damage caused by fault or negligence.’ ‘If I falsely impose insults on you outside a court of justice, I am bound,’ he concluded, citing both a civilian and canon law text.3 Compilers of canonical formularies, meant for use by practitioners in the courts of the Church, included libels based on the civilian concept of iniuria. William of Drogheda (d. 1245), whose connections with England are well established, suggested a libel using the word iniuria itself.45William Durantis (d. 1296), author of the most widely known medieval manual of procedure, gave several variant forms, all based on the notion of verbal iniuria.5 Some ecclesiastical courts outside England made use of these forms in practice, allowing a remedy for defamation based on the civilian concept of iniuria.67It is evident that a broad concept of defamation, authorised under the formal canon law and used elsewhere within the Western Church, was not what lay behind Auctoritate dei patris.1 Infamia and Canonical Purgation If one looks at the canon law texts not for direct authority on defamation, but for incidental coverage in areas which touch on the same issues, two possibilities stand out: the law relating to infamia and the procedures of canonical purgation. Neither fit the English remedy perfectly, and both were primarily directed at

1 See, e.g., Gl. ord. ad X 2.1.6, s.v. actio intentetur: ‘Secundum leges vero actio proponenda est quia nemo sine actione experitur actio enim est ius prosequendi in iudicio quod sibi debetur sed secundum canones exponimus actionem, id est causam." See also X 1.9.7; X 1.32.2. 2 Summa Aurea, v, tit. De irtiuriis el damno dato, no. 6; ‘Et quicumque causa minuendae opinionis alicuius aliquid Cecerit vel dixerit; iniuriarum tenetur.’ s Commentaria ad X 5.36.9, no. 1: ‘Nota primo ex textu quod ex sola culpa seu negligencia tenetur quis ad satisfactionem damni etiam de iure canonico.' Ibid., no. 5; ‘Si vero extra iudicium et tunc aut impingo falso tibi convicia et teneor.’ 4 Summa Aurea, CCXIX, in Ludwig Wahrmund, Quellen zur Geschichte des Romisch-kanonischen Processes im Mittelalter, 11:2 (1914) 219. 5 Speculum Iudiciale, iv, tit. De iniuriis et damno dato, § scias. b See Registre des causes civiles de I'officialite episcopate de Paris, 1384-1398, ed. J. Petit (1919), 186; ‘Petitio bona in actione injuriarum' (1312); Liber practicus de consuetudine Remensi, ed. P. Varin. Archives legislatives de la villede Reims, Pt. 1 (1840), 113-14; E. Friedberg, Definium inter ecclesiam et civitatem regundorum iudicio (1861), 112. 7 The distinction was recognised in a 16th-century treatise on ecclesiastical law of English provenance; BL MS. Harl. 4117, ff. 70v-72r. It is noteworthy that John Ayliffe (d. 1732), whose habit it was to buttress his treatment of every subject with citations to canon law texts, gave none in dealing with defamation: Parergon Juris Canonici Anglicani (1726), 212-15

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other goals than providing a legal remedy for a person defamed. However, both topics touched, and seemingly helped shape, the English remedy. Links can be made between infamia and Auctoritate dei patris. The English remedy required that the person be of good fame prior to the imputation of a crime, and in practice it was usual for plaintiffs to set this out in their libels in words drawn from the sections of the canonical texts dealing with infamia.‘ Persons publicly reputed to have committed a crime were thereby rendered infames, so that there was an evident connection in subject matter coverage.12 There was also canonical authority for ecclesiastical intervention to restore a person to his pristine reputation in case of a false accusation. A decretal of Innocent III imposed silence on men who had brought infamia upon another by accusing him of various crimes and then refusing to prosecute judicially.3 This decretal meshed neatly with several of the canons incorporated in Gratian’s Decretum.4 Canonists did debate the question of whether or not the plenitude of papal power extended to the restoration oi fama where the person had been rendered infames by the just sentence of a secular court.5 This might be seen as direct derogation of secular right. But Auctoritate dei patris would not have raised a problem, since the debated question involved infamia incurred by a proper sentence. The English remedy covered unjust accusations made maliciously and in public. Ecclesiastical punishment of persons who rendered others infames by imputing a crime to them was therefore compatible with the canonical texts. Compatibility, however, is not equivalence, and it cannot be maintained that the English remedy was a straightforward application of the law relating to infamia found in the canon law books. Probably most important, the principal use made of infamia in the texts was to define the civil and judicial disabilities which followed from the commission of certain acts or the existence of public scandal.6 No one tainted by infamia, for example, might serve as an advocate or testify in a criminal trial. Thus, if a man were a habitual perjurer and hence legally infamis, he was disqualified from either of these public acts. The purpose of the English law of defamation was of course precisely to permit the removal of unjustly incurred infamia. That central problem was touched only indirectly in either the principal texts or the canonical commentaries.

1 See below, nos. 2, 4. - C. 6 q. 1 c. 17; see also Lyndwood, Provinciate, 347 s.v. crimen'. ‘Potest etiam intelligi secundo modo, ut scilicet crimen importet tale peccatum vel delictum quod irrogat infamiam.’ 3 X 5.1.14. ■»E.g.. C. 5 q. 1 c. 1. 5 Innocent IV, Apparatus ad X 2.27.23 (Cum te a Bartholomaeo), no. 2: ‘Sed quaeritur, an Papa posset restituere in integrum laicum non subditum suae iurisdictioni; et die quod non.’ Joannes Andreae, Commentaria ad id., no. 1: 'Secundum unam lecturam condemnatus in actione iniuriarum infamis est et per papam potest famae restitui.’ The predominant opinion seems to have been that the spiritual power was retricted to restoring to fame for spiritual purposes, such as ordination, and in exceptional cases, such as might occur in those places where the Church held secular jurisdiction. 6 See C. 3 q. 7 c. 2; C. 2 q. 7 c. 39;gl. ord. ad X 5.1.1 s.v. legitimus: ‘Debet enim esse sinecrimine, non inimicus. bone fame et opinionis, qui alium accusat, alias non est legitimus accusator.’

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Canonists and civilians distinguished three different types of infamia: (1) iuris, (2) canonica, and (3) facti f The first two at least arose in different circumstances from those envisioned in Auctoritate deipatris, and it was possible for both to be incurred for less than criminal conduct.2 Infamia iuris was essentially a penalty incurred because of a judicial sentence.3 Infamia canonica, on the other hand, did not depend on a court sentence. It was incurred by any mortal sin, and it could be removed by penance.4 Therefore, it was necessarily broader than the coverage of the English provincial Constitution. The third, infamiafacti, has the closest ties with English practice, for unlike them it was not a penalty or disability, but a condition which followed from public dissemination of defamation.5 Baldus put it: ‘Infamia facti is nothing other than a base and unclean life revealed to good and substantial persons and known to a large number of them.’6 Although the predominant opinion held that it was incurred by loss of reputation occasioned by all shameful acts, the canon law also made special provision for a person publicly defamed of a crime. The consequence was that he could be subjected to canonical purgation.7 That is, he could be required by a public court of the Church to take a formal oath that he was innocent of the crime and to find compurgators to swear that they believed he had sworn truly.8 The principles behind canonical purgation were spelled out in a title from the Fifth Book of the Decretals.9 Whenever public fame existed that a man subject to a bishop’s jurisdiction had committed a crime, the bishop or his official might compel him to appear. The procedure was hedged in by several ' See gl. ord. ad C. 6 q. 1 c. 2, s.v. leges. On the development of canon law relating to infamia see Peter Landau, Die Entstehung des kanonischen Infamiebegriffs von Gratian bis zur Glossa Ordinaria (1966); John Livingston, ‘Infamia in the Decretists from Rufinus to Johannes Teutonicus’ (University of Wisconsin, Madison, Ph.D. thesis, 1962). 2 For example, at least according to some canonists, infamia iuris would be incurred by a son repudiated in his father’s testament. Joannes Andreae, Novella Commentaria ad Sext 5.12.87 (Injamibus), no. 4: ‘Idem si pater in testamento filium improperavit vel iudex interloquendo dixit aliquem maiae vitae.’ 3 E.g., Panormitanus, Commentaria ad X 1.3.25: ‘Ilia infamia non insurgit nisi quis condemnatur de crimine . . . Confessus autem in criminalibus non habetur pro condemnato sed requiritur sentencia.’ See generally, Vincent A. Tatarczuk, Infamy o f Fact (1954), 1-33. 4 Gl. ord. ad C. 6 g. 1 c. 2, s.v. leges: ‘Et etiam quaedam infamia canonica quae irrogatur ex quolibet peccato mortali . . . et aboletur per poenitenciam.' 5 Panormitanus, Commentaria ad X 1.6.5. (Quia diligencia), no. 8; ‘Sed infamia facti cum consistat in facto non potest tolli ex sola penitencia sed oportet quod per contrarium actum tollitur a mentibus hominum.’ See Frank J. Rodimer, The Canonical Effects o f Infamy o f Fact (1954), 6-7. b Commentaria ad X 2.20.54 (Testimonium), no. 4: ‘Respondeo non quia infamia facti non est aliud quam vitae sordes et vilitas divulgata apud bonos et graves et multitudinem hominum.’ 7 X 5.24.6. 8 E.g., Wotere c. Hamond (1397), Canterbury Act book Y.I.2., ff. lOr, I2r, 34v, 39v, 45v, 53v, 68r, 72r. As a preliminary stage in this causa diffamationis, the Act book records: ‘Commissarius assignavit dictum Johannem atte Wotere ad purgandum se super crimine furti die lune proximo post festum Sancti Edwardi regis proximo futurum et decrevit Johannem Hamond et eius uxorem fore vocandos ad diem mercurii ex tunc sequentem in causa memorata.’ 4 X 5.34.1-16; a fuller treatment of this subject, with examples from English court practice, is contained in R. H. Helmholz, ‘Crime, compurgation, and the Courts of the Medieval Church’(1983) 1 Law and History Review 1.

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requirements. The fame must be public; private opinion would not suffice.1 It must be held as the opinion of trustworthy persons; the opinions of one’s enemies or habitual perjurers did not count.12 And there must be some real suspicion of crime; idle rumour was not enough.3 However, if these conditions were met, the existence of infamiafacti could initiate court procedure against the person defamed. Once the person defamed was before the ecclesiastical forum, preferred procedure called for the crime to be proved affirmatively. An opportunity was therefore given to persons who wished to prove the truth of the fame to come forward. But the standards of proof for conviction were high, and the willingness of accusers uncertain. It might easily happen that no one would step forward to undertake the burden of accusation, and even if someone did, there might well be insufficient evidence to prove guilt. If this happened, the canon law held that the person defamed could not be convicted; but he could be required to undergo purgation before being restored to good fame.4 As Innocent IV wrote, ‘if [the evidence] does not prove, nevertheless purgation should be imposed if any suspicion of crime remains from the proofs.’5 Purgation was, in other words, a subsidiary form of verification of innocence where actual proof failed but was still strong enough to have created public suspicion. The canon law recognised it as second best. But it also recognised that placing a substantial burden of proof on the accuser sometimes entailed acquitting guilty men. Canonical purgation was an attempt to meet the problem. Successful compurgation entitled the person defamed to a public declaration of innocence. He was ‘restored to his pristine fame’. An expressed goal of the canonical system was the extinguishment of public rumour where the accused could demonstrate his innocence. English defamation fitted this goal. Although nothing in the relevant canonical texts expressly authorised the person defamed to proceed against the source of the rumour, to allow this furthered the goal of canonical purgation by providing an additional chance for the restoration of the reputation of the person defamed and for the quieting of public rumour. In fact, Auctoritate dei patris itself made a link with this aspect of infamia facti. It specified that one of the ways harm might occur to a person to whom a crime had been imputed was the necessity of undergoing purgation as a result of the 1 Innocent IV, Apparatus ad X 5.1.19 (Cum oporteat), no. 1: ‘Item oportet, quod de crimine obiecto clamosa non levis, nec tacita sit infamia. Item oportet quod tanta sit infamia, que faciat crimen quasi manifestum.’ 2 Ibid., no 1: ‘Item si aliquis petat inquisitionem contra aliquem, non faciet earn ordinarius, nisi providi et discreti et non leves . . . excessum eius ordinario denuncient.' Antonius de Butrio, among others, noted that it was not necessary that the fama have its origin among trustworthy men, ‘dummodo infamia transiverit ad bonos et graves,’ and that if the prince or other great magnate requested, an inquest might be taken even without public fame ‘ad deferendum honori eorum et scandalum evitandum.’ See Antonius de Butrio, Commentaria ad id., no. 19; Hostiensis, Lectura ad id., no. 18. 2 X 5.34.12. 4 E.g., Panormitanus, Commentaria ad id., no. 2: ‘Nota quod licet per inquisitionem nihil sit probatum contra infamatum simpliciter non absolvitur reus sed inducitur sibi purgatio propter infamiam.’ 5 Innocent IV, Apparatus ad id., no. 1: ‘si ex probationibus remansit aliqua suspicio criminis.’

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words. The remedy of public apology which was used in practice shows clearly that the Constitution provided a mechanism for achieving the goal of the canon law. Therefore, although the English law of defamation was not the direct product of the canonical texts on infamia or canonical purgation, it incorporated parts of procedure found in the texts and built upon them. It may be well to point out specifically that within the canon law of purgation initiated by infamia facti, there was the clear possibility of jurisdictional conflict with English common law and even with the formal canon law. The texts prescribed canonical purgation principally in cases of clerics accused of crime, a procedure familiar to students of English history as following upon claims of benefit of clergy in the royal courts.1This was a natural result of the canonical principle that ecclesiastical courts should not ordinarily intrude into secular matters. However, canonical purgation was also regularly assigned to laymen accused of ecclesiastical offences, such as adultery or sacrilege.12 There was also some textual authority for jurisdiction in case of secular crime, despite the possible jurisdictional obstacle.3 Crimes were also sins, and it was a principle of the canon law that ‘cognizance, examination, and correction of every mortal sin,’ came within the jurisdictional reach of the courts of the Church.4 On that score, bishops might investigate the guilt of a man accused by infamia of a secular crime, although punishment of the sinner was reserved for the secular judge. It was undeniable therefore that the possibility for collision with secular justice was inherent in this system. Since guilt or innocence was at issue in canonical purgation, the same issue central to a secular criminal trial might be tried in an ecclesiastical court. Canonical purgation and the law of defamation which accompanied it in England, therefore might be seen as an encroachment on the secular courts’ exclusive jurisdiction over crime.5 The evidence shows that this possibility sometimes was more than theoretical. It was not ended until the close of the Middle Ages when the Church was forced to withdraw from jurisdiction over imputations of secular crime. The Stubbs-Maitland controversy Viewed against the background of the Western canon law, adoption by the English Church courts of the remedy for defamation found in Auctoritate dei patris bears on our understanding of the authority of the ‘Roman canon law’ in medieval England. That was the subject of the controversy between Bishop

1 Leona C. Gabel. Benefit o f Clergy in England in the Later Middle Ages (1928, repr. 1969), 92115. 2 See above, p. xviii. 3 X 5.34.1, a decretal authorising canonical purgation and evidently dealing with a layman. 4 Hostiensis, Lectura ad X 5.34.6 (Nos inter alios), no. 2: ‘Nam generaliter de quolibet mortali peccato spectat cognitio et examinatio et correctio ad episcopum. Unde et si quis infamatus sit, inquiret .. . et per consequens si probari non possit, purgationem indicet.' 5 See W. R. Jones, ‘Relations of the Two Jurisdictions: Conflict and Cooperation in England during the thirteenth and fourteenth centuries,’ in Studies in Medieval and Renaissance History, vn, ed. William M. Bowsky (1970), 201-202.

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Stubbs and F. W. Maitland seventy-five years and more ago, a controversy now generally held to be settled (at least in a formal sense) in favour of Maitland’s position.1 Stubbs’ view, found in his 1883 Report on the Ecclesiastical Courts, held that the English courts were free to pursue a path independent of foreign, in particular papal, direction. The canon law of Rome, he wrote, ‘although always regarded as of great authority in England, was not held to be binding on the courts.’12 Maitland found this position unsupported by evidence.3 Everything pointed to the conclusion that the papal law books were regarded as absolutely binding on the English courts. To him the notion of an independent system of ecclesiastical law was the wishful thinking of Anglicans anxious about the claims of the Church of England to a pre-Reformation existence. The weight of scholarly judgment, right from the time of the controversy, has been heavily in Maitland’s favour. Even Stubbs half-way recanted. However, the example of the law of defamation supports Stubbs’ original position. Taking Maitland’s view that the papal lawbooks were binding statute law, one would expect laymen sued in defamation to have raised the defence of lack of jurisdiction. And where clerics were involved, it should have been possible to sue for a verbal injury not rising to the level of imputation of a crime. If an English ecclesiastical court had rejected these pleas, a litigant could have appealed to the papal court. There the error would have been corrected, and the recalcitrant judge forced to follow the letter of the papal law. English practice would gradually have swung into line. That is the logic of Maitland’s argument. However, it did not happen that way. In this instance the papal law apparently was not treated as binding on the English courts. It does not necessarily follow from this, however, that Stubbs was correct and that the medieval English Church was ‘independent’ in a juridical sense. What it does suggest is that the Stubbs-Maitland controversy was waged in anachronistic terms. The medieval canon law was not meant to be taken as an ‘absolutely binding statute law’ in the modem sense. It made provision for the force of local custom; it left room for variant interpretations; it was willing to tolerate much for the sake of peace; and it required the willingness of local officials and litigants, with local interests and particular quarrels to settle, before it could be put into effect.4 The decision taken at the Council of Oxford to promulgate a decree on defamation different from that found in canonical texts would not have been thought of as challenging the authority of the canon law or of the papacy.

1 The controversy and its subsequent history are reviewed by Charles Donahue, Jr., 'Roman Canon Law in the Medieval English Church: Stubbs vs. Maitland Re-examined after 75 Years in the Light of some Records from the Church Courts’ (1974) 72 Michigan L. Rev. 647-716. 2 Report o f the Commissioners into the Constitution and Working o f the Ecclesiastical Courts (1883), xviii. 3 'Church, State and Decretals,’ in Roman Canon Law in the Church o f England (1898), 51-99. 4 See E. W. Kemp, An Introduction to Canon Law in the Church o f England (1956), 11-32; Luigi de Luca, 'L’accetazione popolare della legge canonica nel pensiero di Graziano e dei suoi interpreti’ (1955) 3 Studia Gratiana 195; Donahue in 72 Michigan L. Rev. (1974) at p. 647.

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This does not mean that the canon law was open to unlimited manipulation. Some local customs were illegitimate; some interpretations were inadmissible; peace was not worth any price; and the right of appeal to Rome was a safeguard against placing all local interests above those of the whole Church. But there was room within the medieval canon law for local diversity. The canonists themselves envisioned that practice would sometimes diverge from what was found in the Corpus Iuris Canonici, and that this divergence would not necessarily represent a challenge to papal authority. The result is not easy to fit within modem juridical norms, and what was missing from the controversy between Stubbs and Maitland was appreciation for this aspect of the canon law. The English law of defamation thus provides a good example of the diversity and legitimacy of local custom within the canon law. Although the canon law texts and the commentaries upon the texts by the medieval canonists were of considerable use in shaping various aspects of the law of defamation, on the important point of the kind of words for which a remedy was provided, local law prevailed in the medieval English ecclesiastical courts. But this was not contrary to the medieval canon law. No ‘extreme papalists’ would have objected. II. THE ELEMENTS OF DEFAMATION

(a) Crimen imponunt Auctoritate dei patris required that a crime should have been imputed. However, the term ‘crime’ was susceptible of four different meanings under the canon law, beginning with a definition wide enough to embrace all sins, whether venial or mortal, whether intentional or accidental.1 The definition adopted under the English Constitution required an external act ‘for which one can be accused before an (earthly) judge.’12 Thus theft, adultery, homicide, sacrilege, perjury and the like were included. No distinction was drawn between secular and spiritual crimes, but mere personal ‘defects’ like illegitimacy, servile status, or professional incompetence fell outside coverage of the Constitution.3 Likewise, many sins did not amount to crimes within the Constitution’s meaning. To be called greedy, gluttonous or avaricious did not give rise to a legal remedy. The records of the Church courts are generally consistent with this understanding. Of the sixteen defamation causes recorded in the first surviving Canterbury Deposition book (1411-21), eleven concerned imputations of theft, two dealt with sexual offences, and there was one each for sacrilege, leprosy and

1 Dist. 25 c. 3. 2 Lyndwood, Provinciate, 347 s.v. crimen: ‘accipiendo Crimen pro tali de quo potest quis accusari coram iudice.' 3 Ibid., ‘Sic ergo si servitutem. bastardiam, vel illegitimationem aut aliquam aliam infamiam non criminosam imposuerit, non habebit locum poena hujus constitutionis."

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homicide.1 The Exeter Deposition book for 1508-13 contains sixteen defamation causes giving the substance of the words spoken. All imputed what was at least technically a crime.12 Of the sixteen defamation causes in the Durham Act book for 1531-32, five were concerned with imputations of theft, five with sexual offences, three combined these two, and two dealt with perjury.34On a rare occasion one finds the rule tested. In a 1417 cause heard at Norwich a woman admitted to having said of the plaintiff, a priest, ‘I do not know how to piss holy water as you do." When she proved that this was all she had said, she was dismissed. They were words of mere abuse. While they might be some sort of contempt, they would not found a causa diffamationis.A For the Constitution to apply it may originally have been necessary that a specific crime be imputed. This was in accord with a view generally held by the commentators; Baldus (d. 1400) noted, for example, that ‘properly speaking infamia presupposes a certain delict.’5 That is, the defamer must have gone beyond the general allegation that the person defamed was a criminal; he must have named a criminal act that the defendant had committed. ‘You are a thief’ would not come within the Constitution, but ‘You have stolen two of my sheep’ would. The matter alleged must have been an offence for which he could actually be accused of a crime. The early records again are generally consistent with this requirement. Virtually all the imputations from Canterbury and York record imputations of specific crimes. Where they did not, the defendant sometimes objected and demanded that the plaintiff distinctly name the crime.6 It was never necessary in the Church courts, however, that the crime have been named with the exactitude later required by the mitior sensus rule applied in the royal courts. Under this rule judges strained to find non-defamatory interpretations of words spoken, preferring to read them as imputing no crime if any other interpretation were conceivable. The medieval Church courts seem not to have flirted with the rule. The only analogous defamation causes are several brought for imputation of theft in which the defendant’s answer was that he had said only that the plaintiff was in possession of his goods, without

1 Taken from X. 10.1; one of the causes involved a multiple im putation; Adrian c. Helweldyng, f. I24v (theft and fornication). 2 Taken from Chanter MS. 854; some of the crimes seem to have been technical only, e.g.. More c. Canted (p. 181): ‘strong harlyt’ said of a man. •’ Durham Act book ill/1, IT. 2r-34v; in one of the causes I cannot decipher the imputation. 4 Skynner c. Amvas, Norwich Cathedral Archives, Acta & Comperta Roll 1, s.d. Thursday after feast of St Margaret (22 July): 'Negat artieulum sed fatebatur se dixisse talia verba seu consimilia ego nescio mingere aquam benedictam veluli tu scis.' The plaintiff had alleged an imputation of incontinence. 5 Commentaria ad X 2.19.11 (Quonian contraJialsam), no. 63: ‘Tertium vocabulum est infamia, et ista proprie loquendo praesupponit certum delictum." See also Paulus de Castro, Commentaria ad Dig. 28.2.3, no. 4: ‘Non sufficit stare in verbis generalibus sed discendendum esset ad speciem." To the same effect, Barlolus, Commentaria ad Dig. 30.1.47. ” E.g., Rowelle c. Pagrace (1272), Canterbury Ecc. Suit No. 70: the defendant’s third exception was ‘nec in eodem libello declaratur certum crimen aut falsitas cum plures sunt species criminum et falsitatum.’

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mentioning theft at all.1Such cases could raise a genuine issue of what had been meant and understood. They contrast with cases where there can have been little real doubt. To say of a monk that ‘he would not lie in his sheets tonight’ clearly would have been understood as an allegation of unchastity.12 If one said of a woman, ‘The man who married her would have many brothers’ this clearly implied the kind of kinship which arose from her carnal connection with others.3 Technically the words could have been interpreted innocently, but the ecclesiastical courts in both instances treated the speaker of the words as having violated the Constitution. The words, fairly understood in an ordinary sense, amounted to an imputation of a crime punishable by a public court, and that is what the Constitution required. Despite the general congruence with the Constitution’s limitations, right from the time of the earliest remaining records, a few causes heard in the ecclesiastical courts did not fit neatly within the Constitution’s limited coverage. In occasional situations imputations of what Lyndwood classified as mere ‘defects’ arose in litigation. Thus, the records produce occasional examples with imputations of leprosy,4 of servile status,5 of bankruptcy,6 and of Scottish allegiance in times of enmity between England and Scotland.7 None of these amounted to a crime in the sense of the term used by Lyndwood. Such cases are too rare for us to conclude that the Constitution was given an expansive reading right from its inception. But the earliest records do show attempts to expand the remedy, to secure redress for slander not amounting to imputation of a crime. From the point of view of understanding the later influence of the Church courts, what is interesting about these exceptional cases is the connection between them and the early history of slander in the royal courts. They are the

1 Calwode c. Bowdyn (c. 1510), Exeter Deposition book Chanter MS. 854, p. 182: 'Dicit [quod] non imposuit sibi crimen furti set dicit quod prefatus Johannes Calwode habuit bona sua.’ Thomson c. Faram (1481), London Act book Guildhall MS. 9064/3, f. 56v: 'Fatetur quod dixit quod uxor Thome habuit suam gallinam sed dicit quod [non] dixit quod furaretur.’ Spicer c. Bede (1502), Hereford Act book l/3, p. 165: ‘Asseruit quod nunquam dixit quod idem Walterus signavit quendam vitulum de bonis suis sed dixit quod invenit eum signatum in pastura sua.’ 2 Pert c. Swarthyng (1462), Rochester Act book DRb Pa 3, f. 442r: \ . . dicendo quod vidisset unum monachum ad portam prioratus Roffen' antedicti qui non iacuisset in propriis linthaneis ea nocte.’ ' Laddec. Heldeet al. (1417), Canterbury Act book Y.l .3., f. 2 7 r:'. . . quod quiscumque haberet earn in uxorem esset fortunatus ad equos et haberet plures fratres.’ 4 Colmere c. Daniel! (1413), Canterbury Deposition book X.10.1, f. 30v. 5 Ex officio c. Cadbury (1424), Canterbury Act book Y .l.4., f. 142v; Roke c. Sclattare (1471), London Act book, Guildhall MS. 9064/1, f. 82r; Sowton c. Standen (1507), Chichester Act book Ep 1/10/1, f. 94 v. b TopcIiff c. Greenhode (1381), York Borthwick Institute, CP.E.24U, called crimen prodigalitatis, but also joined with the crime of perjury in the positions. In Owyngham c. Rychemonde (1470), London Act book, Guildhall MS. 9064/1, f. 48v, the imputation was 'quod ille non erat ullius valoris in bonis suis neque in corpore.' ' Melmerby c. Leche (1513), London Act book, Guildhall MS. 9064/11, f. 129r; the record specifying that the words had been said 'tempore guerrarum contra nationes Scotie’; Westall c. Dowff (1512), London Deposition book G.L.R.O. DL/C/206, f. 119 r; Johnson c. Buntyng (1515), Rochester Act book DRb Pa 6, f. 87r.

INTRODUCTION

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same ‘defects’ which became actionable at Westminster in the sixteenth century. The common law cases have always been hard to explain, because the remedy in the royal courts was otherwise restricted to words imputing a crime. Their earlier presence in the ecclesiastical courts must indicate their ultimate canonical source. In the present context, however, their existence shows how difficult it has always been to take the strictest view of the remedy provided by the law. Defamation has had a way of breaking out of its boundaries, even when they are sensible boundaries. Besides these exceptional cases involving the imputation of ‘defects’, the requirement that an actual crime have been named was also subject to attack. The rule was generally observed. However, it led to some very fine line-drawing, it was not demanded by the canon law, and it did not correspond very well to the realities of harm done by defamatory words. If a man were called a thief or a perjurer this might harm his reputation as severely as if the speaker had specified exactly what acts of theft or perjury he had meant. To permit a defamer to escape punishment because he had not made his charge precise enough was to stick on a technicality, as the history of the mitior sensus rule in the royal courts would later demonstrate. The restriction to imputations of actual crimes was therefore bound to be challenged. The court records from at least the middle of the 15th century indicate that by that time the attack was succeeding. Imputations began to appear in general terms: ‘old burning whore;’1 ‘you live by pandering and theft;’12 ‘thou art a strong thief ;’3 - each of these without words of specificity. By the sixteenth century the necessity that an actual crime have been named seems to have disappeared. Although the imputation of a specific crime continued to be alleged where appropriate, many times the records show that nothing more than a general accusation of criminal behaviour or status had been made. There is also evidence that more than this natural expansion to general words also occurred around 1500. Although most defamation causes remained based on Auctoritate dei patris throughout the medieval period, a few adopted the broader concept of verbal iniuria. This permitted a remedy for any verbal harm, without requiring imputation of a crime. The Act books show signs of the change. In the late fifteenth century they began to refer to defamation causes as cause diffamationis sive convicii, whereas previously they had made no reference to convicium or had even used the phrase causa diffamationis sive impositionis criminis. The first example of the new, broader term comes from the Canterbury Act book of 1462.4 By the sixteenth century, its use was widespread among

1 Roberd c. Gray (1465), York Borthwick Institute, C P.F.335. 2 Colsoll c. Elham (1454), Canterbury Act book X .I.I., f. 91v. 2 Hunscot c. Grosman (1510), Exeter Deposition book Chanter MS. 854, p. 206. 4 Adam c. Ricard, Canterbury Act book Y .l.7, f. 139v. That the court personnel were conscious of a change is indicated by the name Causa iniuriarum sive convicii given this cause. The practice did not become invariable at Canterbury. For example for 1469 there are 43 cause diffamationis; 9 cause diffamationis sive convicii. Act book Y .l.8. ff. 48-124v.

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English diocesan records.1 Lyndwood, in the middle of the fifteenth century, had himself admitted at least the possibility of providing a remedy for a broader class of imputations, and by the turn of the next century words which could only be called abusive appear occasionally in the court records.12 For example, ‘false piking knave;’3 ‘town bull;’4 ‘son of a butcher’5 all are found in the Act books. It is not always easy to tell with what seriousness the ecclesiastical courts took these merely abusive words. Sometimes judges confronted with them immediately assigned a day ‘ad concordandum’ to the parties, suggesting a desire on their part to end a quarrel which did not rise to the level of what we could call a cause of action.6 Also, the majority of defamation causes found in the records continued to concern words imputing a crime, at least in general terms, throughout the sixteenth century. Although it is impossible to be certain, the English church courts seem never to have fully embraced the civilian concept of iniuria. Although Auctoritate deipatris came to read more broadly and to allow any imputation of criminal status to give rise to a remedy, therefore, its substance still controlled the law of defamation. (b) Falso Nothing in the English Constitution expressly required that the imputation have been spoken falsely. Truth was not a stated defence. To come within the Constitution’s terms, the imputation must have been made maliciously, but the canonists held that even a true accusation might be made out of malice. Nevertheless, almost all libels used in court practice contained an allegation that the imputation of a crime had been false. Subsequent documents used in defamation causes, the positions and the depositions of witnesses, also suggest that the question of truth became an essential question in actual litigation. Only false imputations of crime, that is, were regularly brought before the Church courts. One of the possible explanations for this practice is that the canonists allowed truth to be pleaded as a defence to legal actions based on imputations of 1 Examples are found in Hereford Act book l/2, p. 67 (1498); Norwich Act book ACT/1, s.d. 30 July 1509; London Act book GLRO DL/C/1, f. 97r (1501); Exeter Act book. Chanter MS. 775, f. lr (1513); Rochester Act book DRb Pa 6, f. 153v (1516); Chichester Act book Ep 1/10/2. f. 80r (1520); Lichfield Act book B/C/2/1, f. 1v (1524); Salisbury Act book 3, f. 43r (1566); Winchester Act book C B 5, f. 40r (1527). : Lyndwood, Provincial?, 346 s.v. malitiose\ ‘Et tunc talis puniendus est pro huiusmodi contumelia, licet non poena huius constitutionis.' Walter c. Fry (1508) Chichester Act book Ep 1/10/1, f. 14r. 4 Histocke c. Myles (1556), Salisbury Act book 1, f. 52v. 5 Pychebeke c. Cadman (1508), Chichester Act book Ep 1/10/1, f. 104v. h Pages c. Cook (1373), Canterbury Act book Y .I.I., f. 22v; the defendant admitted ‘quod vocavit earn palam et publice in taberna coram pluribus scalde et ideo habet diem ad concordandum cum ea citra diem dominicam sub pena excommunicationis.' The imputation of being a scold is a debatable case, since many ecclesastical and local courts regularly punished this as an offence. A day ad concordandum was again assigned where these debatable words had been said; "... my husbond doth not lyke a thefe as thou doste.’ Lewan c. Priour (1506), Chichester Act book Ep 1/10/1, f. 72v. In Nasshe c. Ganne (1475), London Act book Guildhall MS. 9064/3. f. lOr, no penance was awarded but the defendant was ordered not to repeat the words after it was found that verba ohprobriosa only had been spoken.

INTRODUCTION

XXXI

crime where it was of public importance that the underlying matter be known.1 The speaker could then be said to have acted for the public good, not with the principal intent to do harm. This was one of the reasons they drew a distinction between accusations of crimes and accusations o f ‘defects’.12 The former ought to be brought to public attention if true; the latter were no one else’s legitimate concern. Some canonists further distinguished between accusations made officially before a judge and those made outside a court with the intent to harm. Only the former were justified by the principle of public need.3 Strictly speaking then, the canonists held that truth was a defense only when the speaker had accused another of a crime deserving public punishment and had done so as part of judicial proceedings, or at least for a public end other than harming the person accused. The first of these requirements matched the English Constitution exactly. Since accusations of simple defects fell outside its theoretical coverage, the problem seldom arose. The second requirement was more difficult, not least because the canonists and civilians themselves left room for ambiguity. They neither required absolutely that the accusation have been made in formal court proceedings nor advocated an absolute immunity for accusations so made. The subjective intent of the speaker played a part.4 Nor did they expressly deal with the frequent situation where a man made a formal accusation before a judge and then repeated it elsewhere in public. They did not, in other words, adopt standards of easy application in the Church’s external forum, but they did leave room for truth to stand as an affirmative defence in some situations. The records themselves do not permit us to delve very far into the questions raised by the canonists. One or two suggest that a true imputation might still have been the subject of a causa diff'amationis, but most of the remaining examples indicate that in practice truth operated as a good defence. So, for instance, when John Schupton was brought before the court of the dean and chapter of York for having called William Make a false thief, he admitted the words but defended ‘because what he had imputed to [Schupton] was true and because he could prove what and how much and from whom [Schupton] had taken certain things.’5 A day was assigned for further proof. We cannot learn 1 Panormitanus, Commentaria ad X 5.36.6 (Siculpa), no. 5: ‘Exemplum expedit rei publice scire te esse latronem vel adulterum; tunc si dixi tibi hoc convicium et volo probare, ita esse non debeo puniri, secus ubi non expedit rei publice; ut quia appello te bastardum ubi nihil petis.’ Bartolus, Commentaria ad Dig. 47.10.18 (Bum quinocentem)', 'Et per hoc dicunt doctores quod si non expediret reipublice talia que per iniuriam dicuntur manifestari deberet proferens talia verba puniri.’ 2 Lyndwood. Provinciate, 346 s.v. maliciose. 3 Panormitanus, Commentaria ad X 5.36.6, no. 5: ‘Si in libello dico te latronem vel adulterum et probo non teneor, idem si repellam te a testimonio quia hoc facio authoritate iuris et non animo iniuriando.' 4 The congruence on this point with the theologians is worth noting; Thomas Aquinas, Summa Theologiae, 2a2ae. 72, 2: ‘Ad tertium dicendum quod cum peccatum convicii vel contumeliae ex animo dicentis dependeat, . . .' 5 York, Borthwick Institute Act book D/C AB 1, f. 59r (1420): ‘[E]t fatetur se talia verba protulisse et ultra quod verum fuit illud quod cibi (sic) imposuit et quod probare potest quid et quantum et a quo certas res abstraxit.'

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the outcome of this or most other such causes; the records are not full enough. But ecclesiastical causes in which the defendant made the defence of truth and where the judge set a term for proof on the issue indicate that in practice only false imputations were actionable.1 This conclusion, in addition, accords with the theory of canonical purgation which was so closely allied with defamation.12 The accuser had the right to establish the truth of the charge before purgation went forward. If he did, that was the end of the matter. Insofar as we can tell, therefore, truth operated as a good defence in defamation practice. Questions of subjective intent were left for the internal forum. (c) Maliciose The movement towards an objective standard of defence did not occur in the case of malice. The Constitution required that the imputation have been made maliciously, and this requirement neither became a purely formal allegation nor reduced itself to fixed categories of privilege, as has largely happened in modern law. The defendant’s actual motive in speaking was an important factor in canonical litigation. Malice is an impossible word to define exactly. The medieval canon law itself used it in more than one sense.3 As applied to defamation, however, precise definition was unnecessary for two reasons. First, the canonists held that malice might be presumed from the nature of the words where there was no contrary showing.4 The defendant must excuse himself. He must put forward good reasons for his words. Thus not every defamation cause required a definition of malice to be made. Second, the canon law entrusted the judge with a wide discretion in assessing motive.5 Precise description would have been incompatible with the judicial discretion the canonists held to be desirable. Nevertheless, the canonists did give examples of the sorts of things which would exclude malice, and many appear as defences in the English records. For example, anger, at least passing anger, might be a defence or a mitigating factor 1 F..g.. Ex officio c. Awygen & Michell (1556). Salisbury Act book 1, f. 91 r: ‘Habent ad proponendum materiam sufficientem contra Johannam Whitehere et ad probandum earn meretricem et adulterant esse alioquin ad recipiendum penitenciam pro eo quod dicti Johannes et Willelmus nonnulla verba diffamatoria de eadem Johanna publice in iudicio protulerunt.’ Other examples: Chyvaler c. Hayly (1373), Canterbury Act book Y .I.I., f. 23v; Hervy c. Ongle (1439), Rochester Act book DRb Pa 1, f. 123v; Noricec. Baker (1381), Ely Act book EDR D/2/1, f. 165r; Moreys c. Fouler (1420), Canterbury Act book Y.1.3, f. 148v; Hoo c. Heght (1473), Lichfield Act book B/C/l/2, f. 137v ; Puynet c. Bescamp (1507), Chichester Act book Ep 1/10/1, f. 99v; Hart c. Harry (1522), St. Alban's Act book, Herts. R.O., ASA 7/1, f. 37r. However, Culpepir c. Reyland (1514), Rochester Act book DRb Pa 6, f. 75v and James c. Harmon, infra no. 24, seem to point the other way. : Thus a regular item of ecclesiastical court business was a ‘causa reclamationis contra purgationem.' The judge asked if anyone wished to object against the purgation; if anyone did, he was assigned a term to prove it; if not the purgation went ahead and could be followed by a causa diffamationis where appropriate. 3 See Albericus de Rosate, Dictionarium iuris tarn civilis quam canonici (Venice, 1573), 443, where references to malice used in the sense of Sciencia, negligencia, and calumnia are given. 4 Gl. ord. ad Cod. 9.35.5 (Si non convicii) s.v. prohare poles : ‘Praesumitur te animo iniurandi hoc dixisse, quia verba sic se habent.’ Lyndwood, Provinciate, 263 s.v. iniuriose. 5 See the discussion in Durantis, Speculum Indiciale, iv, tit. De iniuriis et damno dato, § Scias s.v. concipitur.

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in meting out punishment. Malice required a certain perseverance in the accusation,1 and the man who quickly thought better of what he had said, perhaps even apologised, was not necessarily subject to punishment under the Constitution.12 The English cases indicate that sudden anger figured in the decision of at least some defamation causes. Plaintiffs often alleged that the words had been spoken with deliberation or had been repeated, and defendants sometimes answered claims by saying that they had spoken only in momentary anger.3 Witnesses also sometimes testified to their opinions on the question of the defendant’s state of mind at the time he spoke.4 Judges did not give reasons as part of their formal sentences under the canon law, so that there is no way to measure exactly how much this possible defence weighed with them. But it seems to have weighed something. The threat ‘And I will prove it’, coupled with the imputation of a crime, is frequently found in the words complained of by plaintiffs. This was very likely a way to emphasise the fixed resolve of the speaker and so to anticipate a defence that the words had been uttered only in passing anger.5 The frequency with which the issue was pleaded, at the very least, suggests that the judges regularly considered whether or not the defendant had persevered in his accusation when they came to decide the best way to dispose of the case. Connected with anger was the defence of provocation. The man who was goaded into a false imputation might have been speaking without malice. So, for instance, in a cause heard at Lichfield in 1526, the defendant admitted the defamatory words, but said that the plaintiff ‘before the utterance of the same [words] provoked him to speak by telling him, “You are a knave”’.6 Apparently 1 See C. 2 q. 3 c. 5; gl. ord. ad. X 2.21.21 s.v. minima. 2 Gl. ord. ad C. 2. q. 3 c. 5 s.v. iterare: ’Hoc ideo dicit, quia si iteraverit convicium non videtur ex iracundia sed ex deliberatione dixisse.’ See also Lyndwood, Provinciate, 346 s.v. quacumque de causa, reviewing the arguments and concluding that a single accusation made out of anger would not be covered. However, Cyno da Pistoia, Commentaria ad Cod. 9.35.5, no. 2, also put both sides of this argument and reached the conclusion that perseverance was unnecessary. 3 E.g., Fontansc. Clover (1507), Chichester Act book Ep 1/10/1, f. 101 v; ‘Et pars reaconfessusest quod in furore suo vocavit partem actricem furem et non aliter.’ According to the record, the parties then compromised. However, in Dun c. Heynye (1442), Hereford Act book 0/2, p. 50 the plea was rejected. The defendant was allowed or perhaps required to mention his wrath as the source of his words in his public penance. 4 E.g., Bergh c. Kenton (1415), Canterbury Deposition book X.10.1, f. 88r. William Hogge, the witness, deposed that ‘idem J. Kenton dixit huiusmodi verba in iracundia sua et credit quod non continuavit in huiusmodi ira sua sed ex quadam festinancia sua dixit dicta verba.' 5 For example, Crocheman c., Baldewyn(\4$l), London Deposition book, Guildhall Library MS. 9065, f. 27r; the defendant was alleged to have said, ‘He toke shepe owt of my fold and he is a thef.’ The witness expostulated with him to think better of it, whereupon the defendant replied, ‘By God I wul prove him a thef.’ 6 Eusore c. Camden, Lichfield Act book B/C/2/1, f. 69v: ‘Et idem Eusore ante prolationem eorundem dixit (sic) provocavit eum ad dicendum dicendo eidem thow art a knave.’ Other clear examples: Cohhamc. Man (1447), Rochester Act book DRb Pa 2, f. 64r: ‘Repetivit verba scandalosa de eadem contra prohibitionem sibi factam dicit tamen quod ilia provocavit eum ad hoc;’ Norice c. Baker ( 1381), Ely Act book EDR D/2/1 , f. 165r: ‘Excipiendo tamen dicit quod hoc fecit provocata;’ Fontansc. Clover (1507), Chichester Act book Ep 1/10/1, f. 101 v : ‘Pars rea dicit quod actor vocavit eum in anglicis horson prest antequam vocavit eum furem;’ Sterky c. Sutton (1530), Lichfield Act book B/C/2/3, f. 101 v : . fatebatur contenta in libello tamen provocatus fuit;’ Kendall c. Gylbert (1567), Salisbury Act book 3, f. 107v: '. . . she called the seid Kendall preestes whore for that she cauled her draggell tayled hoore.’

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the judge in the case did not find this provocation enough to excuse the defamation. The cause went forward even after the plaintiff confessed to having actually spoken the provoking words. Some canonists held that provocation was reason only for mitigating the severity of the punishment and not enough to exclude malice.1 Perhaps the Lichfield judge had this in mind. Again, the discretionary powers of the judge leave opaque the exact significance of provocation. But provocation was alleged often enough in the remaining records to suggest that it was one way of rebutting or at least reducing the effects of malice. The best way of rebutting malice was to show that the imputation had been made with a laudable motive. The easiest cases were those discussed above: where the defendant had told the truth as part of a judicial proceeding only in order to bring a criminal to justice. The other end of the scale was the case of the defendant who honestly but unreasonably thought he was acting rightly by imputing a crime to someone who had not in fact committed one. Most of the causes in the records fall somewhere between these poles. In one Exeter defamation cause the defence was that the imputation of theft had been made ‘not with the intention of defaming but in order to secure restitution.’12 In a Salisbury example it was that the words had been uttered ‘not in a malicious manner but as a thing to be concealed and kept secret.’3 In a Chichester case the defendant contended that ‘he was not thinking any evil when he said the words.’4 No doubt this last is an example of the feeble sort of excuse people often prefer to acknowledgment of wrong, one which the Chichester scribe happened to record. That it could have been made, however, is testimony to the importance of the requirement of malice in ecclesiastical practice. Although muted by the presumption that malice would be presumed unless contrary evidence were presented, malice was always alleged in defamation causes and amounted to more than a purely formal matter in court practice. (d) Cum infamatus non sit apud bonos et graves Under the Constitution’s wording, the defamation must have occurred apud bonos et graves to give rise to a remediable harm. This sonorous phrase, apparently taken originally from a text in the Roman law Codex defining the ways infamia might arise,5 was used frequently by medieval canonists in a general context, and particularly in connection with canonical purgation.6 In English sources, it provides a signpost of ecclesiastical defamation. When it 1 See#/, ord. ad C. 2 q. 3 c. 5 s.v. siquis iratus; Panormitanus, Commentaria ad X 5.36.1 (Siri.xati), no. 2: ‘Puto tamen quod mitius punietur iste qui provocatus offendit quia difficillimum est iustum dolorem compescere.' : Calwode c. Bowdyn (c. 1510), Exeter Deposition book Chanter MS. 854, p. 182: ‘Non dixit huiusmodi verba animo diffamandi set causa restitutionis habende.’ 3 Odel c. Randal (1583), Salisbury Deposition book No. 9, f. 46v; taken from the deposition of Avice Harker. 4 Pynham c. Knyght (1506), Chichester Act book Ep 1/10/1, f. 56v: ‘Non cogitavit malum quando huiusimodi verba dixit.' The judge set a term for further process. 5 Cod. 2.11.13. b E.g., Antonius de Butrio, Commentaria ad X 5.1.19 (Cum oporteat), no. 19; Hostiensis, Lectura ad id., no. 18; Panormitanus, Commentaria ad X 5.34.15 (Cum dilectisfiliis) no 9.

INTRODUCTION

XXXV

appears in a secular court context it provides a reliable link with the canonical remedy. The phrase itself meant simply that the defamation must have been spread among persons whose good opinion was worth having. Lyndwood glossed the word bonos to mean honest persons who were themselves of good fame; the word graves to mean persons of sound judgment.' There is little sign, however, that the requirement provided a regular defence in English practice. Some canonists, in discussing the degree of infamia necessary for assigning canonical purgation, weakened it by requiring only that the ill fame might naturally come to the attention of suitable persons.12 Since almost any public fame would do this, defendants in defamation causes could not reasonably have argued that they had only spoken to persons of no consequence. At any rate a defence based on these words did not play a regular part in court practice. On the other hand, the defence of prior bad fame, contained in the first part of the Constitution's phrase, did appear in the court records. Lyndwood noticed that not all copies of the Constitution contained identical wording on this point. Some read unde infamatus sit. Some contained the phrase set out above. He, however, read them both to mean the same thing, namely that it must have been the defendant’s words which caused the infamia to attach to the plaintiff s name. If the plaintiff had already been openly defamed of the same crime, Auctoritate deipatris did not apply. Lyndwood in fact went on to criticise this feature of the Constitution, although he noted that the defence of prior bad fame was in frequent use.3 It meant that a defendant could further spread circulation of the ill fame and consequently augment the harm to the person defamed, without being subject to an action for defamation. It could also lead to an absurdity. Suppose the speaker first said the words in a passion, then deliberately repeated them after he had returned to his senses. Theoretically, he had not said the words maliciously in the first instance, and when he had repeated them he had only augmented a pre-existing ill fame. Thus he had a complete defence to a defamation cause even though he had been the sole source of the harm. That would obviously be absurd. To meet this problem Lyndwood proposed two possible understandings of the text, both of which had the virtual effect of reading out any requirement of prior fame.4 Lyndwood’s words naturally carry the greatest weight on this question. He was not only England's leading medieval canonist, he was a man with a wealth of experience in ecclesiastical court practice. However, he gave no definitive answer to the question of what actually occurred in practice. His implication is that practice varied. The evidence from the court records is no more satisfying. Plaintiffs always claimed that they had been of good fame and upright life before the alleged 1 Provinciate, 312. 2 Antonius de Butrio, Commentaria ad X. 5.1. 1, no. 19: ‘Sufficit dummodo infamia transiverit ad bonos et graves.' 3 Provinciate. 347 s.v. unde: 'Et sic practizant multi.' 4 Idem: the first was that the person spoken of had not previously been truly defamed apud bonos et graves because they had not believed it. The second was that since the Constitution was directed towards punishment of malice, the punishment should be imposed regardless of effect, just as the person who offered poison to a man who did not take it might be punished under the canon law.

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defamation occurred. This was an invariable inclusion in their formal positions.1 Defendants also sometimes disputed the point, either by the formulaic ‘Non credit’ attached to the position, or in express terms which appear in the cause papers12 and the act books.3 An English formulary of the fifteenth century contains an express exception for the situation ‘ubi pars fuit diffamata prius.’4 Witnesses were often questioned about the prior good or bad fame of the plaintiff.5 But all of these pieces of evidence fall short of exact proof of the weight the questions had with the judges. They are compatible with the notion that prior fame ranked simply as another of the factors to be weighed in the judge’s discretion. Only one case has been found where the Act book records a clear decision on this point. In Wescot c. Rokkey, decided at Exeter in 1532, the act book records that the witnesses, ‘deposed publicly that it was common fame in the parish of Aylesbeare that the said Westcot was a common whore, whereupon the judge dismissed Rokkey from further vexation.’6 While this bare entry supports Lyndwood’s pessimistic estimate of practice in the Church courts, it is a thin reed upon which to base a firm conclusion.7 It may be that the question is not clear because there was no agreed position at the time. The canon law could well leave such questions unresolved, and it must often have merged in practice with the question of whether or not the prior fame were true. (e) Unde purgatio indicatur One of the ways that the Constitution could be called into play was for the plaintiff to have been put to canonical purgation as a result of the defendant’s words. The connection between Auctoritate deipatris and the Western Church’s law on the effects of infamia facti has been noted above.8 The connection was 1 See Robinson c. Rayner, infra no. 4. 2 Clerk c. Saclbergb (1347), York, Borthwick Institute CP.E.44: '. . . quod dictus Ricardus aliquandiu ante festum Sancti Petri ad vinculum ultimo preteritum fuit publice et communiter diflfamatus in civitate Ebor' et in villa de Akon’ predicta per vicinos suos et alios et non per dictum Symonem . . .' •’ F..g., Yden c. Newayn (1421), Canterbury Act book Y.1.3, f. 169v: '[F]atetur dictus Johannes Newayn se dixisse contra dictum Willelmum quod furatus fuit oves etc. tamen dicit quod huiusmodi verba non habuerunt originem ab eo sed communis vox et fama laborarunt super premissis diu antequam ipse protulit huiusmodi verba in ista causa.’ The most frequent form of making this plea was the allegation that the words had been said ‘ex relatu aliorum’. 4 BL, Royal MS. 11 A. II, f. 59v. 5 E.g., Ateyn c. Vffynton (1413), Canterbury Deposition book X.10.1, ff. 25v-26r, in which William Brigge deposed that the defendant had merely repeated ‘communis opinio quamplurium personarum.' h Chanter MS. 777, s.d. 21 October 1531;'. . . publice deposuerunt quod fama communis est in parochia de Aylysbury quod dicta Westcot est communis meretrix unde idem iudex dimisit partem Rokkey ab ulteriori vexatione.' However, the proctor for the plaintiff threatened to appeal. 7 Some support for the result in Wescot c. Rokkey is provided by Wolfe c. Clerke (1497), Hereford Act book 1/2, p. 43: the defendant admitted saying that the plaintiff had committed a sexual offence ‘prout ipse Willelmus Lloyd dixit’ and a day was set for further process. Also by Ex officio c. Cheyne ( 1446), Rochester Act book DRb Pa 2, f. 69r, in which the accused defended by saying that he had heard it ‘de relatu diversorum' and a day was assigned for him to prove this. However, in Dodyngton c. Hebchestre (1441), York Act book, Borthwick Institute D/C A B 1, f. 101 r, the defendant alleged that ‘sic audivit ut dicit ex relatione aliorum,' but was assigned a public penance immediately, without being given apparent opportunity to prove this. 8 See supra pp. xxii-xxiv.

INTRODUCTION

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made in court practice, for the surviving court records produce quite a few cases where canonical purgation was the occasion for the start of a defamation cause against the person who had been the source of the public fame. In practice, persons not infrequently came before an ecclesiastical court, either voluntarily1 or by citation,2 because of public fame that they had committed a crime. It was more frequent when the crime was directly under the Church’s jurisdiction, as in the case of adultery or fornication, but it was by no means limited to that situation. Persons defamed of theft or other secular crimes also appeared. When this happened, the judge normally ordered a public proclamation to be made, either in court or in the defamed person’s parish church, asking whether anyone wished to object to admitting the person to purgation. If anyone did object, he was given the chance to prove the truth of the public fame. If no one objected, the defamed person was admitted to ‘purge’ himself of the crime, and if successful, he was then restored to public good fame by formal sentence.3 He could also proceed against the defamer (if he could isolate the source of the ill fame) by private suit. Thus, to take one example, John Denys appeared before the Commissary court at Canterbury in 1422 together with Thomas Halle. Denys had been defamed of several crimes, including murder and forgery. He proclaimed himself ready to undergo canonical purgation. Halle, however, objected and said that at least the forgery charge was true. He was given an opportunity to prove this. Halle failed to prove this accusation, however, and the result was an ordinary causa diffamationis brought against him by Denys.4 In this example, and others like it, what the Church’s system of purgation accomplished was to allow a person defamed to deal with public rumour by ventilating it in an ecclesiastical forum and by giving him the chance to proceed judicially against the defamer if the infamia were shown to be false. Defamation built upon this system. Auctoritate deipatris treated canonical purgation as one way harm might occur to the person defamed. Court practice shows that this purgation often became the opportunity taken by plaintiffs for the start of a law suit. (f) Vel alio modo gravetur Required canonical purgation was not, however, the sole way in which a person might come within the wording of the Constitution. It was not a 1 E.g., York Act book Borthwick Institute Cons. A B 6, f. 60v (1509): 'Johannes Cook de Popleton dicit se fore diffamatum per Johannem Tankard de Acustre super eo quod ipse Johannes bona ad valorem septem librarum et amplius de bonis Johanne matris dicti Johannis Tankard iniuste ac temere cepisset et asportasset preter et contra voluntatem ipsius Johannis Tankard filii naturalis dicte Johanne super quo quidem crimine dictus Johannes petiit se canonice admitti ad purgationem suam.’ 2 E.g., Rochester Act book DRb Pa 2, f. 45r (1445): 'Richardus Taylour citatus super eo quod ipse diffamatus est de adulterio cum Johanna Barbour uxore Ricardi Barbour . . .’ 3 Thus in the cause involving John Cook, supra note 1. John Tankard did not wish to object against the purgation; the entry then recorded: ‘Et admissus est ad purgationem suam cum compurgatoribus sequentibus qua purgatione facta dominus officialis restituit eum sue bone pristine fame.' The names of the compurgators were given below the entry. 4 Denys c. Halle, Canterbury Act book Y.I.3., fols, 209v, 218r.

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necessary trigger for the remedy. Any sort of harm might do. It is therefore very difficult to say much about how the courts dealt legally with the requirement of harm, because any sort of damage sufficed and because the loss of good name alone was considered a serious loss in the canon law.1 No monetary loss or actual physical harm had to be shown where a crime had been maliciously imputed. The paucity of information in the court records about the actual details of harm should therefore not be surprising. What can be said with assurance is that harm was always alleged, albeit in general terms, in the libels and positions used by plaintiffs, and that the depositions show that testimony about different sorts of actual damage sometimes came before the judges. So, for example, witnesses deposed that one plaintiff had lost an advantageous marriage as a result of the words,2 that another had been arrested as a consequence,3 and that a third had been ejected from her husband’s bed after the public fame of her adultery had been spread abroad.4 We do not know how much attention the judges paid to the specific sorts of harm inflicted. Perhaps they were relevant to the severity of the penance imposed, but the evidence does not allow for confident assertion. In the large majority of defamation causes harm was alleged only in terms of general loss of reputation. This was legally necessary, for if no one had ever believed the defamatory words, the person would not have been harmed within the meaning of the Constitution. But if people of any consequence harboured suspicion against a man or woman as a result of the words, the Constitution applied. For an understanding of the canonical remedy it is well to emphasise the non-physical nature of the harm alleged in most cases. Loss of the good opinion of one’s neighbours was all that was required, although this might sometimes lead naturally to monetary loss. The canon law in England considerably restricted the scope of defamation by requiring that a crime be imputed, but it did not restrict its scope by requiring physical or monetary harm. In this sense ecclesiastical defamation was a ‘spiritual’ remedy in practice as well as in name. (g) Excommunicamus The sole remedy offered by the Constitution was excommunication of the offender. It left open, as did most similar canons, the question of what the offender must do to have the sentence lifted. Canonical principles required that 1 F..g., Joannes Andreae, Commentaria ad X 2.27.23 (Cum te a Bartholomaeo), no. 2: ‘Aliquando plus turbent verba quam verbera.' Lyndwood, Provinciate, 347 s.v. gravetur: ‘Famae namque amissio est maius gravamen quam amissio oculorum.' - Zarewellc. Maldon (1415), Canterbury Deposition book X.10.I, f. 92r: \ . . et dicit quod fama dicte Alicie est denigrata apud bonos et graves occasione dictorum verborum et precipue versus Richardum Bocher de Faversham quern dicta Alicia habuisset in maritum suum nisi dicta verba fuissent et dicit quod idem Richardus est bonus homo et habet in bonis xl li.' Austyn c. Laybroke( 1416), Canterbury Deposition book X. 10.1, ff. 102r-102v: ‘Interrogate an opinio dicti Thome sit denigrata apud bonos et graves occasione huiusmodi verborum dicit quod non potest aliter esse quia occasione huisumodi verborum dictus Thomas fuerat arestatus ad prisonam vocatam Spech Hows in alto vico Cant' situatam.’ 4 Canterbury Ecclesiastical Suit No. 318 (c. 1290): '. . . multipliciter est gravata ratione impositionis huiusmodi eo quod biennio anno elapso dictus dominus Robertus maritus suus eo pretextu noluit ipsam ut uxorem ad lectum suum aliqualiter admittere.’

INTRODUCTION

XXXIX

he make amends to the person injured before the penalty could be remitted, but they defined no specific way this must occur.1 Much was left to the discretion of the judge and to the wishes of the litigants. Even Lyndwood, whose commentary is the best guide to English law, had little to say on the subject. Continental commentators recognised money damages as an appropriate way of making whole the party injured by slanderous words.12 However, it was not the only way; there was canonical authority in favour of a remedy limited to an order imposing silence on the defamer.3 Such an approach fit the rule of the English royal courts that defamation properly belonged to the ecclesiastical forum only so long as money damages were not demanded.4 The rules of the royal courts did not always control the scope of ecclesiastical jurisdiction in medieval practice. The ecclesiastical courts found ways around many of them.5 However, in the instance of defamation the ecclesiastical goal of public restoration of reputation and extinction of infamia accorded naturally with the royal court rule, and the record evidence suggests that, although there were doubtless some instances in which money changed hands, normally the limitation to ‘spiritual’ penalties was observed in practice. In the first place, the libels and positions used in the Church courts never demanded money damages. Specifically ‘canonical’ penalties alone were formally sought. Nor do the act books, which contain more detail about the outcome of litigation and which show evasion of the royal-court rules in other instances, mention money damages. The sole possible exception is the giving of a bond for future good conduct. Sometimes, as part of the settlement of a defamation cause, defendants were obliged to promise to pay plaintiffs a sum of money if they were to repeat the defamation in the future.6 However, this was not the equivalent of damages for past conduct, and the mention of monetary bonds in these cases, but never in ordinary instance litigation, must support the conclusion that the courts generally observed the rule. The courts did regularly award expenses in defamation causes. A successful plaintiff might therefore recover some money, and it is conceivable that damages were hidden in awards of expenses. However, canon law drew a clear distinction between the two.7 Expenses meant the costs of bringing the law suit, just as in English common law. It would therefore have been contrary to the canon law to have used the category of expenses to cover damages, and because 1 C. 14 q. 6 c. 1. 2 Hostiensis, Summa Aurea V, tit. De iniuriis et damno dato, no. 7. 3 E.g., Innocent IV, Apparatus ad X 1.31.16 (Conquerente), no. 1 : ‘Item, quia eum diffamat asserendo eum in quibusdam iuribus sibi debitorem ideo recte petit quod cesset ab hac diffamatione.’ An important civil law text, referred to particulary in the post medieval period, was Cod. 7.14.5 (Defamari). 4 See the writ ‘Circumspecte agatis’ (1286), in Councils & Synods, il, 974-975. 5 See ‘Assumpsit and Fidei Laesio’ (1975) 91 LQR 405. 6 E.g., Sawyer c. Prattys (1421), Canterbury Act book Y.1.3, f. 200v: 'Insuper commissarius oneravit dictam mulierem quod decetero non diffamabit dictum Hugonem neque aliquem alium sub pena xx s. cuius summe unum nobile debet applicari parti diffamate aliud ecclesie ubi pars diffamata commoratur et aliud nobile elemosine domini C ant'.’ 7 E.g., Hostiensis, Lectura ad X 5.36.8 (In nostra), no. 5: ‘Expensae vero dicuntur quas quis facit in lite vel circa advocatos.'

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the expenses actually awarded in defamation litigation do not seem out of proportion to the amounts awarded in other sorts of litigation,1 the suspicion that the royal court rule was evaded by this means seems, on balance, unlikely. At least, there is little positive evidence for it. The court records do, however, provide frequent reference to ‘spiritual’ penalties. These normally contained two elements: public penance and public apology to the party defamed. Open penance by the offender and restoration of the plaintiffs reputation were sought. The order from one York cause, for example, required the defendant to march in the parish procession in penitential garb and ‘at the time of High Mass, the parishioners being present, [to] say in a loud and intelligible voice that he had erred in his words, which were uttered from false information of others, and [to] humbly ask pardon’ of the complainant.12 In a Hereford cause, the defendant had again publicly to ask pardon during divine service and to say ‘that he had uttered the words out of evil will, not from zeal and that he had been moved to anger.’3 Such picturesque examples of public penances taken from the remaining act books could easily be multiplied, though they seem the object of special interest to the social, rather than to the legal, historian. To the latter, the evident goal of all of them: the public humiliation of the defamer and the restoration, as far as possible, of the reputation of the person defamed must be the essential point. Many defamation causes, of course, never reached this stage. Some were settled in court by agreement of the parties,4 some were referred to arbiters,5 some were simply continued until tempers cooled and the parties could reach an accommodation.6 Perhaps some informal bargaining about money compensa­ tion went on at this stage.7 It was not made part of the record, however, and must remain part of the unrecorded negotiation and accommodation which official court documents of any age leave largely unknown. The aim of the Constitution was as much the restitution of peace and the quieting of public 1 This statemeni is based on a comparison of the lists of expenses occasionally appended to the cause files with the sums mentioned in the Act books. E.g., Roger c. Bakster (1453-54), York, Borthwick Institute CP.F. 190, in which the expenses, being itemised, were recognisably related to litigation and amounted to 33s. 6d., compared with Stenyour c. Cay ton (1425), the defamation cause recorded in York Act book Cons. A B 2. f. 45r, in which the expenses were taxed at 26s. 8d. without being itemised. 3 Borthwick Institute, Act book D/C A B 1, f. 6v (1397): \ . quod tempore celebrationis maioris misse, parochianis congregatis, alta et intelligibili voce dicat ipsum erronee huiusmodi verba per ipsum alias dicta ex falsa informatione aliorum dixisse et quod veniam postulet humiliter ab eodem.’ 3 Dun c. Heynye (1442), Act book 0/2, p. 50:*. . . quod veniret tempore alte misse ad pulpetumet ibidem publice peteret misericordiam a dicto domino Johanne et quod protulisset huiusmodi verba ex mala voluntate et non ex bono zelo sed iracundia motus fuisset.’ 4 E.g., Spicer c. Bede (1502), Hereford Act book 1/3, p. 165. 5 E.g., Hurt c., Lorkyn, (1440), Rochester Act book DRb Pa 1, f. 168r. h E.g., Hawkyns c. Holeherst, Chichester Act book Ep 1/10/1, fols 90v, 92v, 96r, 96v (9 June-22 September 1507). 7 This would not have fitted badly with the principle of the ‘Addition’ to 'Circumspecte agatis’, namely that although no money might be demanded, the defendant might redeem a corporal punishment by a money payment. See Statutes o f the Realm, I, 101; E. B. Graves in 43 English Historical Rev. (1928), 1-20.

INTRODUCTION

xli

rumour as it was the vindication of a spiritual principle.1 It may be that a remedy in which the severest penalty consisted of a public admission of error and a humble request for pardon, but which left room for compromise of all sorts, made good sense in the conditions of the time. It was natural, and sensible, that penalties should have varied according to circumstances. III. RELATIONS WITH OTHER COURTS

(a) Defamation and the Secular Courts Defamation never furnished a major area of jurisdictional dispute in medieval England. The royal courts conceded defamation to the Church so long as money damages were not demanded. Whether by force of secular constraint or by virtue of a perceived appropriateness o f‘spiritual’ penalties, ecclesiastical courts did not have recourse to money damages, so that there was little regular friction. Royal writs of prohibition were occasionally issued to stop defamation causes in the Church courts, and a few such writs have found their way into the surviving records.12 However, it is not always easy to see on what grounds they were issued: many probably served merely to harass, and as a matter of regular practice defamation presented problems only in exceptional situations. The best known exception was the use of defamation to impede the operation of the royal courts. In 1327 a Parliamentary petition complained that persons who had caused others to be indicted, or had given evidence against persons lawfully indicted, were being subjected to subsequent harassment in the ecclesiastical tribunals under the heading of defamation.3 That is, a man indicted of a crime sued his accusers for defaming him, or used the threat of such a suit to stop the indictment from being prosecuted in the first place. A statute was enacted in 1327, granting a writ of prohibition to prevent the practice.4 The ecclesiastical side of the evidence supports the possible validity of the complaint. Canon law left room for the practice. While it provided a defence for the maker of a true imputation on a matter of public interest who acted to further that interest, if offered no blanket immunity to the person who accused another of a crime, even if he did so as part of a formal legal procedure.5 The canonists held that the man who had made a false accusation or who had acted out of malice might legitimately be subjected to suit. 1 The goal of public peace was more perfectly illustrated by the purely ex officio side of the Church's jurisdiction; e.g., Ex officio c. Kereby (1417), York, Borthwick Institute Act book DC C B 1. f. 49r: 'Beatrix Kereby de Parva Dederna est communis obiurgatrix et diffamatrix vicinorum suorum quod vix poterit aliquis iuxta ipsam vivere in quiete.’ 2 F.g., Pepynell c. Warde (1356), York, Borthwick Institute CP.E. 72; the writ of prohibition alleged that the ecclesiastical suit was for lay debts and chattels. The cause papers, however, show that it was brought for allegedly calling the plaintiff meretrix sacerdotis. See also Coten c. Moote ( 1347). in Registrum Hamonis Hethe, Canterbury & York Soc., ed. Charles Johnson (1947-48), 943: a cause in which disciplinary action was taken by the Church against the procurer of the writ of prohibition.Rotuli Parliamentorum, II, 9, 11. 4 I Edw. Ill, st. 2, c. II (1327). See also W. R. Jones, 'Relations of the Two Jurisdictions," in 7 Studies in Medieval and Renaissance History, ed. William Bowsky (1970), 201-202. 5 See supra p. xxxi.

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The ecclesiastical court records provide only a little good evidence to show how prevalent the practice actually was. Defamation causes in which the plaintiff alleged that he had been imprisoned or arrested as a result of the defamatory words provide the best instances to show that defamation was sometimes used to strike back at those who had been responsible for a criminal charge.1 A few other examples from the sources and many cases from the royal court records also exist to support the validity of the complaint.12 However, the ecclesiastical court records have not produced cases of defamation causes brought against the members of a grand jury or those who had simply testified on oath in the royal courts. These were the grossest sorts of abuse, and it may be that the availability of writs of prohibition and the requirement of malice kept most such cases out of the Church courts. On the other hand, it is possible that the surviving records are simply not full enough to provide an accurate picture, and a precise estimate of how far the potential for abuse was realised in practice necessarily eludes us. The court records do, however, provide better information on a related but slightly different point of conflict between the secular and spiritual courts. That is, the potential for double adjudication of the same underlying issue of whether the person defamed had committed a crime. As long as the truth of the underlying matter could be raised by way of defence in the ecclesiastical courts; that is as long as the defendant could argue that his words were not defamatory because the plaintiff had actually committed the crime imputed, the same issue might lie at the heart of a defamation cause and a secular court action. For example, in 1435 James Aston sued Adam Bekesworth before the consistory court at York, alleging imputation of perjury.3 The documents from the cause show that the alleged perjury had amounted to no more than a formal denial by Aston that he had received a sum of money from Bekesworth. Aston had previously sued Bekesworth for debt in a secular court; Bekesworth had alleged payment and Aston had denied it. Then Bekesworth publicly asserted that Aston had perjured himself by denying receipt of the money owed. For this he was sued as a defamer. At issue therefore in both cases was whether or not Bekesworth had paid the money. If he had, he had a good answer to the secular claim for debt and probably a good answer to the ecclesiastical claim that his words had been defamatory. The same issue would necessarily be litigated twice, and there could be no guarantee that the result would be the same in both tribunals. Lyndwood himself admitted the possibility of conflict,4 and the court records produce several examples: an instance where a suit for defamation was 1 Austyn c. Laybrooke (1416), Canterbury Deposition book X.10.1, f. 102r; Martyn c. Folvyll (1454), Canterbury Act book X.1.1, f. 97v. 2 E.g., Rex & Colecestre et al. v. Pycheford (1279), KB 27/43, m. 8d, a case in which the jury found specifically that the defendant had drawn the recognitors in an assize of novel disseisin before the Court of Arches in a causa diffamationis. See also Brian Woodcock, Medieval Ecclesiastical Courts in the Diocese o f Canterbury (1952), 88; W. R. Jones, ‘Relations’, 201. i York, Borthwick Institute CP.F. 117. 4 Provinciate, 313 s. v. purgatio admittatur \ he was, however, at pains to reconcile the two systems as far as possible.

INTRODUCTION

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brought after a prosecution for theft in a local secular court at Sturry, Kent;1 a case in which the defendant had already been presented as a public scold by a local court’s homage at Hertford ;1 2 or a case where a secular action at York over delivery of cloth was a preclude to a defamation cause in the consistory court.3 Such double litigation was not unknown or necessarily unlawful in other situations in the Middle Ages. Nor has it been wholly banished today. However, the conflicts it can cause must surely be seen behind the development of the rule restricting ecclesiastical courts to cases involving imputations of strictly spiritual crimes. Previous practice had allowed the Church to hear cases relating to defamation of all sorts. There is no evidence that the royal courts objected to the practice during the earlier period, so long as the ecclesiastical courts did not proceed directly against the procurers of indictments. In fact, there were decisions expressly authorising it.4 However because the truth of the imputation of a crime was relevant in defamation causes, the practice necessarily permitted indirect conflict with the decisions of secular courts. In a time of heightened perception of the value of certainty in law and of general desire to restrict the activities of the ecclesiastical tribunals,5 such indirect conflict was bound to seem suspect. That time arrived in the late fifteenth century. (b) Disappearance of Jurisdiction over Imputations of Secular Crimes The first indications of the new doctrine from the royal court records come from the last quarter of the fifteenth century. A yearbook case of 1482 enunciated the distinction between secular and spiritual crimes as marking the jurisdictional boundary of cases the Church courts might hear.6 And a series of actions brought on the Statute of Praemunire7 dating from the reign of Henry VII, sought to enforce a rule that the Church might entertain defamation causes only when the underlying matter was wholly spiritual.8 That fourteenth-century statute had originally been understood as an attack on appeals to the papal court in cases outside ecclesiastical competence. However, in the fifteenth century it came to be read as including within its ban ecclesiastical courts inside England.9 It thus became possible to use it to keep litigants from suing in Court Christian over a matter which ‘touched the royal crown and dignity'. One such matter was coming to be a suit which raised, either directly or indirectly, a question of commission of a secular crime. Pleading in an action founded upon the Statute of Praemunire began by setting out the terms of the Statute and by reciting the principle that ‘the 1 Forster c. Swan (1457), Canterbury Act book X.1.1, f. 129v. : Ponder c. Somer (1490), London, Guildhall MS. 9065, f. 70v. Symson c. Sherp (1503), York, Borthwick Institute Act book Cons. A B 5, f. 19r. 4 See the writ of consultation granted in 1377 in such a case in John Lydjord’s Book, ed. Dorothy M. Owen (1974), 69 70. ' See J. H. Baker, introduction to The Reports of Sir John Spelman, II (SS Vol. 94), 66-70. h Cose of the Abbot of St Alban's, Y.B. Trin. 22 Edw IV, f. 20, pi. 47. 7 16 Ric. II, c. 5. x See the list in J. H. Baker, introduction to The Reports of Sir John Spelman, ii (SS Vol. 94), 67, note 2. 9 Y.B. Mich. 5 Edw. IV, f. 6. pi. 7 (1465), interpreting the phrase ‘vel alibi' in the statute as including pleas within England.

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determination of all felonies perpetrated within the realm of England belongs by right to the court of the lord king.’ It continued by alleging that the defendant had broken the statute and the king’s rights by drawing the plaintiff before an ecclesiastical tribunal for imputation of a felony.1 Further pleading set out the details. The result of a successful suit founded on the Statute of Praemunire was therefore to render the party who had sued in the Church court over imputation of felony liable for damages in a subsequent action in the royal court. Under such pressure, ecclesiastical jurisdiction suffered. The records of the Church courts show the effects. For example, an early Act book of the London commissary court, containing records from 1485, before the start of the Praemunire actions, contains many causes of defamation involving secular crimes. But the Act book for the same court from 1513 contains none.12 The same disappearance in fact occurred elsewhere throughout the English Church.3 Whereas a large part of defamation practice in the mid-fifteenth century had dealt with imputations of crimes punishable by secular courts, by the second quarter of the sixteenth century practice was confined to imputations of ecclesiastical crimes. The disappearance did not occur instantly upon the start of the attacks on the Church’s jurisdiction. For at least a time after the appearance of Praemunire actions on the plea rolls of the King’s Bench, medieval practice was kept up. The 1507 records for Chichester, for instance, show slightly more causes relating to secular crimes than to ecclesiastical.4 As late as 1531, the consistory court at Durham heard defamation causes relating to theft.5 But in these dioceses, as elsewhere, the royal courts’ jurisdictional boundary had come to govern practice by the time of the Reformation Parliament. The pressure from the royal courts and the consequent preference of litigants spelled the end of the Church’s wider jurisdiction over imputations of crimes punishable by secular courts. Most telling is the fact that the ecclesiastical judges themselves came to accept and even to enforce the distinction. At London as early as 1513, a Church court judge dismissed a defendant in a defamation prosecution because ‘this cause does not come within the ecclesiastical forum.’6 At Chester in 1530, the Act book scribe noted beside a defamation cause: ‘the cause is dismissed to the royal forum.’7 At Durham two years later, a similar entry recorded, ‘Dismissed

1 Taken from Samford v. Walronde (1506), KB 27/980, m. 32. : Comparing London Act book, Guildhall MS. 9064/2 with MS. 9064/11. The former contains 15 causes in which theft was imputed, and 6 more in which theft plus a sexual offence was imputed. The latter contains none of either. 3 Ralph Houlbrooke, Church Courts and the People during the English Reformation 1520-1570 (1979), 80. 4 Taken from Act book Ep 1/10/1, ff. 69v-103v; my count gives an 11 to 10 preponderance in favour of secular offences, although not all entries for defamation causes in the Act book reveal the substance of the imputation. 5 Yonger c. Howerde, Durham Act book iii/l, f. 2r: . . imponendo ei crimen furti.' 6 Ex officio c. Peterson, London Act book Guildhall MS. 9064/11, f. 89r: \ . . quod causa ista non convenit forum ecclesiasticum etc.’ 1 Fysher c. Ege, Chester Act book EDC 1/4, f. 16v: 'Dismissa est causa ad forum regium etc.’

INTRODUCTION

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because of the civil nature of the cause.’1 Facing such an attitude, few litigants would consider defiance of the royal court rules. The story told by the Church court records, in other words, is one of maintenance of jurisdiction over imputations of secular crimes for a period after the start of attacks on the Church’s jurisdiction. This resistance gradually gave way in the first decades of the sixteenth century to acquiescence in the loss. It ended with a willingness to enforce the position of the royal courts that was sealed by the time of the breach with Rome. Whether the ecclesiastical courts took these steps out of fear, or whether they also came to recognise the anomaly of double litigation is impossible to say on the basis of the record evidence. Little evidence has been found to illuminate the matter from the point of canonical theory.12 It was, in any event, only one of several jurisdictional losses suffered by the ecclesiastical courts in the first quarter of the sixteenth century.3 It ought therefore to be seen as part of a shift in the jurisdictional boundaries between Church and State, one which left the royal courts with several areas of legal competence which had once belonged to the courts of the Church. (c) Sixteenth-Century Ecclesiastical Defamation The disappearance of causes involving imputations of crimes punishable by secular courts did not spell the demise of ecclesiastical jurisdiction over defamation. Radical proposals to strip the Church of all jurisdiction over defamation were not acceded to,4 and defamation long continued to be a staple aspect of litigation in the ecclesiastical courts. If anything, there was growth. The widening of the remedy to include merely abusive language, the growth in population which occurred in the sixteenth century, and (perhaps) the increased litigiousness of the Tudor age resulted in generally greater numbers of defamation causes during the last part of the sixteenth century than had been true a hundred years before. There were of course short term fluctuations, and there was variation among different dioceses. But where the Act books provide reasonably accurate comparative figures, most show no overall decline in numbers. At Hereford, for example, an average of six defamation causes a year were introduced in the consistory court between 1491 and 1493. In 1585 the total amounted to 31.5 The Lichfield consistory court heard an average of 15 new defamation causes each year between 1465 and 1467. By 1590 the figure was 49.6 Canterbury’s Commissary court shows a decline, however: from 73 1 Johnson c. Roper, Durham Act book ill/1, f. I Or. : But cf. Christopher St German, Doctor and Student, ed. T. F. T. Plucknett & J. L. Barton (SS Vol. 91), 301-02. 3 See 91 LQR 421. 4 One such suggestion is found in a sixteenth-century tract, ‘Certan Consideracions’, BL, Cotton MS. Cleo F. II, ff. 250-250v. 5 Comparing figures compiled from Act book i/l with those from Act book 1/12. For similar evidence from York, see J. A. Sharpe, Defamation and Sexual Slander in Early Modern England: the Church Courts at York (1980), 8. For Chester, seeC. A. Haigh, ‘Slander and the Church Courts in the Sixteenth Century, (1975), 78 Transactions o f the Lancashire and Cheshire Antiquarian Society, 2. For Durham, See Peter Rushton, ‘Women, Witchcraft, and Slander in early modern England: Cases from the Church Courts of Durham’ (1982) 18 Northern History 125-27. Comparing figures compiled from Act book B/C/l/1 with those from Act book B/C/2/26.

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causes in 1476 to 37 in 1575.1 Defamation had never provided the principal source of litigation in the Church courts. That remained true in the sixteenth century, as it had in the fifteenth. But it was a regular and important part of the Church’s jurisdiction throughout the period covered by this volume. Legally, the most noticeable sixteenth-century change was a continuation of a medieval development: the expansion of the ecclesiastical remedy to encompass abusive words not necessarily amounting to imputation of a crime. This did not mean the disappearance of the older notions. Auctoritate dei patris was not swallowed whole. It continued to be used in court documents, and the great majority of defamation causes continued to concern imputations of offences punishable by canon law. Nevertheless, there was a change, and ecclesiastical lawyers realised that there had been. A new form of pleading, not based on the Constitution, was adopted alongside the older form.12 Under it any convicium tending to the diminution of the good fame or status of the plaintiff could be punished by ecclesiastical sanctions. The Act books show the result: causes brought for calling someone ‘a drunkard,’3 or a ‘crafty old knave.’4 or ‘a hypocrite,’5 all appear. This expansion thus put the Church courts in the position of enforcing something very like the actio iniuriarum of Roman law adopted by the medieval canonists. It is one of the pleasant ironies of legal history that the post-Reformation English Church came closer to enforcing the medieval canon law on this subject than did the medieval Church courts tied directly to papal jurisdiction. Apart from the jurisdictional question of the nature of words which were actionable, ecclesiastical court practice generally proceeded in tandem with that of the royal courts. The influence seems to have run from royal to ecclesiastical courts once the secular remedy had become established, although it is always difficult to know who thought first of a particular form. Thus, the ecclesiastical courts expanded the recitation of the plaintiff’s good fame and reputation, following the form of bills used in secular actions on the case. They adopted the common use of the innuendo, the device employed by the royal courts as a way of meeting the objection that the defamatory language had not clearly referred to the plaintiff, a practice many subsequently carried to absurd lengths in pleading.6 And they may even have toyed with the mitior sensus rule adopted by the king’s courts.7 Most of these, of course, are surface changes, interesting 1 Comparing figures compiled from Act book Y.1.12 with those from Act book Y.3.1. : See, e.g., Kyngwell c. Taylor, infra no. 8. For commentary, see H. Conset, The Practice o f the Spiritual or Ecclesiastical Courts (3d ed., 1708), 18. 3 Markress c. Swanne, Lincoln Diocesan Court Papers, Box 59 s.d. 1603: ‘Thou art a drunkerd and a comon drunkerd.' 4 Bisse c. Willis, Bath & Wells D/D/C, Papers in Causes 16th-18th Centuries, s.d. 1598. 5 Cabell c. Eger, ibid., s.d. 1599: ‘Thow art an hippocrite ..." And see generally F. G. Emmison, Elizabethan Life: Morals and the Church Courts (1973), 48-68. 6 E.g., Ex officio c. Broyne (1558), Salisbury Act book 1, f. 1 9 5 r : . . protulit verba sequencia viz. Thow (meaning William Wattes of Little Cheverell being present) has a bastard and thow were maried att midnight.' 1 See Hillinges c. Langlie ( 1584), Exeter Cause Papers CC 2/1, in which the words were that the plaintiff‘did occupie her once or twice’ and the innuendo form was used to plead that in common parlance this unmistakably referred to fornication.

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principally because they demonstrate that reciprocal influences between secular and ecclesiastical lawyers existed. In terms of substantive law the ecclesiastical courts stuck to the substantive defences available under Auctoritate dei patris. The two court systems divided the sorts of imputations that belonged to each jurisdiction. Otherwise they travelled a parallel road.

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3. D efamation

in the

L ocal C ourts

I. INTRODUCTION

Maitland established long ago that local courts once exercised jurisdiction over defamation. The Selden Society’s second published volume contained extracts from the records of the courts of several manors, from the honour of Broughton and the fair court of St Ives.1 All heard pleas involving defamation. However, the evidence presented in that volume came exclusively from the thirteenth century, and there were not enough cases in all for Maitland to draw firm conclusions about the nature of the law of defamation being enforced. When he came to write about slander in The History of English Law, he was understandably cautious. He left open the question of the local remedy’s later fate and he undertook no description of the nature of the local-court jurisdiction.12 In the more than eighty years which have passed since Maitland wrote, no one has returned to look at the subject in any detail. The question stands much as it did then. In the meantime, good scholarly work has been done on manorial and other local courts.3 Quite a few court rolls have been published.4 But little attention has been paid to the substantive law enforced in local courts and no systematic study of defamation in them has been attempted.5 Hence it is understandable that when writers of general works on the subject of legal history have had to deal with the history of defamation many have assumed that what Maitland found true of the thirteenth century continued into the fifteenth.6 They have also been naturally reluctant to say much about substantive law, beyond noting evident duplication of jurisdiction with the ecclesiastical courts and pointing out similarities with later practice in the royal courts. A few writers have pushed the division between imputations of secular and of spiritual crimes back into relations between local and Church courts in the fourteenth century. But most historians have approached the subject with exceptional caution.7 Fuller examination of local court records permits two generalisations to be made about the subject. The first is that the records show variation and 1 Select Pleas in Manorial and other Seignorial Courts, ed. F. W. Maitland (SS Vol. 2, 1889). 2 Pollock and Maitland, History o f English Law, u, 537-38. 3 Among the books which deal with legal aspects of manorial administration are: W. O. Ault, Private Jurisdiction in England (1923); A. E. Levett, Studies in Manorial History (1938); John P. Dawson, History oj Lay Judges (1960) 178-286; Frances M. Page, The Estates o f Crowland Abbey (1934). 4 See the considerable numbers listed in E. B. Graves, Bibliography o f English History to 1485 (1975), 668-91. 5 John Beckerman devotes incidental attention to it in 'Adding Insult to Iniuria: Affronts to Honor and the Origins of Trespass," in On the Laws and Customs o f England Essays in Honor o f Samuel E. Thorne, ed. Morris S. Arnold et al. (1981), 159-81. 6 E.g., Van Vechten Veeder, 'History of the Law of Defamation,' in Select Essays in AngloAmerican Legal History, III (1909) 449-50; C. H. S. Fifoot, History and Sources o f the Common Law (1949), 126; Colin Lovell, ‘The “ Reception” of Defamation by the Common Law’ (1962) 15 Vanderbilt L. Rev. 1058. 7 E.g., J. H. Baker, Introduction to English Legal History (2nd ed. 1969), 364.

INTRODUCTION

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imprecision about the substantive law of defamation enforced. In some instances slander in the local courts seems to have been treated as one kind of assault, or at least as one element of a physical trespass. In other cases, and probably the majority, the local remedy seems to have been roughly equivalent to the ecclesiastical law of defamation. It required that a crime have been maliciously imputed. The second generalisation is that it has been a mistake for historians to assume that defamation cases continued to be a regular part of local-court jurisdiction throughout the medieval period. The records show their disappearance over the course of the fourteenth century. When Chief Justice Fineux said in 1497 that defamation was a ‘tout spirituel offense’ he spoke the literal truth.1 The records of the local courts are harder to use and interpret than those of the Church or of the common-law courts at Westminster. Quite apart from their variety and dispersal among many archives, they seldom allow the researcher to penetrate behind short and formal entries on the court rolls. Only in the sixteenth century do actual pleadings survive in any quantity from local courts, permitting reasonable inferences about the law being enforced to be drawn.12 There is no equivalent of the writing of the canonists to help interpret the evidence. Much, therefore, of what follows should be held to include the reservation that it can go no further than difficult records permit. But the bulk of the records examined in the course of this study is great enough to allow for some probable conclusions. II. THE NATURE OF DEFAMATION IN LOCAL COURTS

(a) Defamation as a Form of Trespass One way of looking at defamation was to see it as an ordinary kind of trespass. We are now accustomed to put it into a distinct category, with its own rules and principles of law. Modern law has developed that way. There is, however, no inherent necessity in this distinction. Roman Law treated slander as one of many ways in which iniuria might occur. Medieval canonists and civilians, while not blind to the differences between words and actions, nevertheless treated the two as part of the same legal category.3 Under this formulation they were simply alternate ways of hurting someone. Many of the local court records encourage us to see defamation in this light. For example, the records often called cases involving defamation Placita transgressionis, just as they did cases involving other, physical wrongs.4 1 Y.B. Trin. 12 Hen. VII, f. 24b, pi. 2. 2 Some courts evidently used written pleadings at least as early as the 15th century; e.g., Bisshop v. Petyr (1474), Battle Manor Court roll, Huntington Library BA 670, contains reference to a demurrer in law ‘ut patet in papiro.' 2 See supra pp. xix-xx. 4 E.g., Yne v. Lanke, Horsham St Faith Manor Court roll, Norfolk RO, NRS 19505, 42 C 1, s.d. Tuesday feast of St Mark, 5 Edw. II (25 April 1312): ‘de placito transgressionis eo quod diffamaverunt.' However, the terminology is not consistent; NRS 19503, the roll of 1291-92, includes defamation pleas in which the wrong was called both iransgressio and diffamatio.

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Moreover, the entries sometimes explicitly portrayed slander as a physical act. The defendant was said to have ‘assaulted [the plaintiff] with foul words,’1or to have ‘hurled abusive words’12 at him, or simply to have ‘cursed him.’3 It would not have mattered greatly what the exact words had been, and sometimes the scribe did not record them at all, because the essence of the wrong was the verbal assault rather than the precise matter imputed to the plaintiff.4 The most frequent form of such entries on the court rolls expressly coupled a verbal with a physical act. The words figure as one aspect of an assault or of a wrongful taking. This should not be surprising. Men rarely fight in silence. Unless a conscious division is made, descriptions of the events which make up a legal wrong will often include slanderous language. Thus, in one 1291 case the plaintiff complained that the defendant had ‘assaulted him in the royal highway opposite the tavern of Nicholas Caperun in the town of St Ives with foul words calling him son of a dog and other enormities and afterwards evilly struck him with his knife.’5 It was a simple if one-sided version of what had happened. Sometimes words were joined to what amounted to a dispute about property rights, for instance in a 1285 case from the Suffolk manor of Redgrave. The plaintiff complained that the defendant had come with force and arms and with the help of her husband, had ‘assaulted him with evil discourse,’ had ‘said that he was a thief and a fugitive,’ had ‘driven away his two plough-teams,’ and had prevented him from seeding and ploughing his land.6 In some courts this sort of conjunction of words and acts was the normal practice. The Exeter Mayor’s Court roll for 13-14 Edward I, for instance, contains 37 cases with the two alleged together, 33 cases alleging a physical assault alone, and 6 alleging a

1 Bron v. Aleyn, Higham Ferrers Court Roll, Northants. RO, X.684/4, Roll of 1310/11, s.d. Friday in week of Pentecost, 4 Edw. II (4 June 1311): . in alta via ipsum insultavit verbis contumeliosis.' A similar description is found in Hide v. Trewlove (1304), Ingatestone Manor Court, Essex RO, D/DP M4, m. 4: 'dicta Cristiana insultu premeditato ipsam assaltavit verbis acerbis.' - Gerveis v. John son o f Denis, Brigstock Court roll, Northants. RO, X.364A/8, s.d. Friday before feast of St Bartholomew 26 Edw. I (22 August 1298): '. . . predicto Roberto verba contumeliosa iniecit et dispersonavit.' 3 E.g., Robert o f Canterbury v. Barbur, Winchester City Court, Hants. RO, F/TC 1/2, s.d. Monday after feast of St James 27 Edw. I (27 July 1299): '. . . quod ipse et uxor eius maledixerunt eum.' The first Exeter Mayor's Court roll, with pleas of 48 Hen. III-2 Edw. I (not continuous), contains a number of suits styled specifically placita maledicti. They disappear from later rolls. 4 E g., Peek v. William fitz Thomas (1309), Appletree (Derby) Hundred Court roll, PRO DL 30/43/489, m. 3d: 'predictus Willelmus venit vi et armis contra pacem domini Regis in Fennybentel et ei insultum fecit per verba contumeliosa et ipsum verberavit et male tractavit ad dampna sua xxx s.' 5 Pynkynham v. Qued, PRO SC 2/178/97, m. 1: . .quod ipse Henricus die veneris ultimo preterito insultavit ipsum in regia via ex opposito taberne Nicholai Caperun turpibus verbis in villa Sancti Ivonis vocando ipsum filium canis et alia enormia et postea pugno suo male percussit ad dampnum .. .' 6 Robert v. Oligaunt (1285), Univ. of Chicago Bacon MS. 4, m. 21 r : '. . . venit dicta Cristina in villa de Witham vi et armis una cum auxilio Waited viri sui et insultaverunt dictum Robertum cum turpibus loquelis et dixerunt eundem Robertum esse latronem et fugitivum et fugaverunt duas carucas quas dictus Robertus conduxit ad arandum et seminandum terram suam et disturbaverunt arruram suam eodem die’.

INTRODUCTION

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verbal assault alone.1 Such coupling was a reflection of the way quarrels really occurred; as long as slander was not thought of as a separate legal category it must have been natural that verbal and physical assaults should have been joined together in pleading and recording practice. Something of the same undifferentiated way of thinking about the nature of wrongs, and a possible connection with civilian notions of iniuria, can be found on the damage side. Many pleas, both in physical trespass and in defamation cases, laid stress on the element of shame or dishonour. Plaintiffs pleaded that wrongful conduct, both verbal and physical, had been both ad dampnum and ad pudorem, thus emphasising the element of outrage which was important in Roman law.2 The usage was not universal even in the thirteenth century, but it was not confined to defamation cases.3 Ordinary physical trespass cases used the same terminology, and hence they illustrate an unselfconscious joining of physical and non-physical elements. Both could be put in the same claim, both could be explicitly joined in the damages. No sharp division was made. A second, and intriguing, manifestation of the possible connections with the broader conception inherent in iniuria is presented by those cases from local courts which adopted the civilian form of laying out the amount of damages. In an actio iniuriarum the complainant set this out by swearing to his unwillingness to have suffered the injury inflicted for a specific sum of money. Thus he might swear, ‘I would not have borne the injury for 10s.’ or ‘I would have preferred the loss of 10s. to having the injury inflicted upon me.’4 In a few cases from local courts, damages were alleged in precisely this fashion.5 The plaintiff, his lawyer, or at least the court scribe clearly knew and copied the civil law of iniuria. There are not, however, many such entries, and the normal practice was to lay the damages in the simple ad dampnum form. They are doubtless most interesting as indicating the degree of legal sophistication which was possible in the lowly local courts, but for present purposes they again illustrate an undifferentiated way of thinking about defamation. Slanderous words were treated as one kind of wrong, one form of trespass, just as they were in the civilian actio iniuriarum. ' Taken from Devon RO. MCR 13-14 Edw. II. An historiographically interesting instance of this joining is found in Select Pleas in Manorial and other Seignorial Courts (SS Vol. 2). 109. Maitland had translated an entry to reflect the combination of slander with physical trespass, but he accepted the emendation proposed by M. M. Bigelow to the effect that the words ‘et alia enormia’ must refer not to the defendant's acts against the plaintiff, but to the other crimes of which the plaintiff has been accused. See The Letters of Frederic William Maitland, ed. C. H.S. Fifoot (1965), 60. The error seems more likely to have been Bigelow's. - On this subject, see Beckerman, in Essays in Honor of Samuel E. Thorne, 172-78. 3 See Pollock and Maitland, History of English Law, II 537. 4 The form is given in gl. ord. ad. Dig. 47.10.21, s.v. iniuriarum aestimatio: see also the forms in Guillelmus Durantis, Speculum ludiciale, iv, tit. de iniuriis et dampno dato § Scias. 5 Fulco v. Kenep, below, no. 31; Tuck v. Pikeral, Manor of Brigstock, Northants. RO, X.364A/3, s.d. Thursday after feast of St Botolph (19 June 1292): ‘et exprobravit predictum Petrum per verba contumeliosa iniuste ita quod predictus Petrus noluit sustinuisse dampna pro ii s o l i d i s Hole v. WHdehorlegh (1291), Manor of Wakefield, Yorkshire Archaeological Society, MD 225/1291. m. 8d: ‘el queritur quod vocavit eum lalsum quam diffamationem noluit habuisse pro dimidia marca.’ See also Select Pleas in Manorial and other Seignorial Courts (SS Vol. 2), 56.

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Treating defamation as a form of iniuria was not, however, the only way of thinking about verbal wrongs. They could also be treated as a separate legal category, although it would not necessarily be identical in substance to the ecclesiastical model. By the end of the thirteenth century, when the local court records exist in quantities sufficient to allow for generalisation, this way of thinking appears to have been dominant, or at least in the ascendant, in the local courts. Defamation occupied a distinct place. The English Church had long since staked a claim to jurisdiction over defamation, not making such a claim over most physical trespasses, and this may have encourged men to think separately about the two. The royal courts made the distinction, refusing to entertain pleas for purely verbal trespasses.1This may have had the same effect. The local-court records show conscious separation of verbal from physical wrongs in several ways. The most important was by refusing to hear pleas over defamation at all. That subject is treated below. But even in the courts where such pleas continued to be heard after 1300, there were signs that men were thinking about defamation not as a kind of verbal assault, but as something apart. First, the rolls often gave the cases a special title, placita dijfamationis, rather than lumping them together with other trespasses.12 Second, stress began to be laid on proof of actual damages in defamation cases, something not required where there had been a physical trespass. Plaintiffs pleaded that they had actually suffered some definite harm other than simple loss of good name, and in several instances where recovery for defamation was denied, the reason given was that no damage had been suffered. ‘And let [him] recover nothing because he has lost nothing,’ one such entry states.3 Third, the explicit claim for loss of face or shame disappeared from the court records, indicating that on the damage side intangible losses to reputation were being separated from physical or monetary damages. Even in courts where it had once appeared regularly, by the middle of the fourteenth century or earlier the phrase ad pudorem can no longer be found.4 Although jurors may have considered the element of shame in taxing damages, formally ad dampnum was all that appeared on the record. Together, those pieces of evidence suggest that oral defamation, even where it was the subject of continued local jurisdiction, was treated as a wrong with peculiar rules and was based on special principles of law. (b) The Local-Court Remedy and Ecclesiastical Defamation In some local courts defamation seems always to have been based directly on the ecclesiastical model. In Windridge manor court in Hertfordshire, for example, one entry records the allegation that the defendant had ‘often defamed

1 This was made explicit in a 1295 case decided in Parliament, Rotuli Parliamentorum, I, 132-3, 2 E.g., Walter v. Blake, Newton Longville Court roll, New College Oxford MS. 3873, s.d. Wednesday after feast of St Barnabas 9 Edw. Ill (18 August 1335): ‘Johannes Walter . . . optulit se versus Johannem le Blake in placito transgressionis et placito defamationis.’ 3 Snel v. Ay!se, below, no. 51. 4 The early Exeter Mayor’s Court rolls, for example, which exist from the end of the reign of Henry III, often contain the element of shame. The same rolls from the fourteenth century never do.

INTRODUCTION

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[the plaintiff] apud bonos et graves, imputing various thefts to him . . .MThis and similar entries in other courts can hardly have been other than imitation.12 They not only suggest a view of defamation as something different in kind from ordinary trespass, they also show a direct overlap with the substantive law administered in the Church courts. Much of the evidence from the local-court records is consistent with the notion that the same legal principles underlay both the secular and the spiritual remedies. Although defamation sometimes appeared as a form of iniuria, therefore, more often canonical principles controlled all but the nature of the damages awarded. This is shown most strikingly by congruence with the ecclesiastical law’s insistence that defamation required that a crime should have been imputed. The vast majority of pleas brought in local courts alleged the imputation of a crime, and theft was the normal subject there, as it was in the ecclesiastical forum. At Great Yarmouth, for instance, this congruence appears both in particular cases and in overall figures. In 1287, Geoffrey Baketon sued Clement Ronding for having said that Baketon had stolen two hides of leather worth 5s. and so ‘had imputed such a crime and scandal to him that from that day to the present he never could enter into the service of any other man.’3 Ronding’s defence was that ‘he had sought from him the two hides he had handed over to him, but he had imputed no crime or theft to him.’4 Evidently, the imputation of a crime was what mattered in this case. Numerically, the same thing appears. Of the 14 defamation cases heard in the court between 1296 and 1305 which have entries on the court records detailing the underlying facts, fully 14 would have been actionable in an ecclesiastical court. Eight involved imputations of theft, the rest being spread among a number of other crimes which would have supported the canonical remedy.5 Like the Church courts, most local courts drew no apparent distinction between secular and spiritual crimes. The records regularly contain imputations of ecclesiastical offences. To say that another had committed adultery6 or to call 1 Gladenant v. Gladenant, Herts. RO, X.E. lc, s.d. Monday after feast of St James 14 Edw. Ill (31 July 1340): ‘idem Rogerus ipsum sepius defamavit apud bonos et graves imponendo versus ipsum diversa latrocinia ad dampna .. 2 Other examples of use of the ecclesiastical language apud bonos et graves: Chatham Hall Manor Court rolls, Essex RO, D/D Tu 257, m. 15 (1324); Newton Longville Manor Court rolls, New College Oxford MS. 3873, s.d. Wednesday after feast of St Barnabas 9 Edw. Ill (14 June 1335); Castle Acre Manor Court, Holkham Hall (Norfolk) papers, Bundle 1, Roll 2, s.d. Wednesday after feast of St Dunstan 3 Edw. II (20 May 1310); Wallingford Borough Court roll, Berks. RO, W/JBa, 42, s.d. Thursday feast of the Ascension (28 May 1321); Exeter Mayor’s Court, Devon RO, Roll of 30-31 Edw. I, m. 28 (1302). This identical language is, however, very much the exception overall, and it may have been thought appropriate to make a distinction in terminology. 3 Norfolk RO, C 4/8, m. 2r: \ .. et talem crimen et scandalum ei inposuit ita quod ab illo die usque in hunc diem nuncquam in servicio alterius possit intrare’. 4 Ibid., \ . . et bene cognovit quod interogavit ab eo ii corea quam ei tradidit sed nullum crimen nec furtum ei inposuit’. 5 Taken from Court rolls, Norfolk RO, C 4/18-26. There are also 8 other cases in which the rolls give no details as to the nature of the defamation alleged. 6 E.g., Herst v. Muncy, Manor Court of Rickinghall (Suffolk), BL MS. Add. 63404: ‘false et maliciose defamavit Robertum de Herst quod deberet cognovisse camaliter uxorem eiusdem Ade etc.’

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someone a whore,1or the keeper of a bawdy house,12 or a usurer,3 or a sorceress4 all gave rise to causes of action in local courts. The records even produce a few instances of imputations of leprosy5 and servile status.6 They were the occasional subject of cases heard in local courts, as they were in the ecclesiastical. Lyndwood classed them as mere ‘defects’ and hence excluded them from coverage of the remedy provided by Auctoritate dei patris.1 Nevertheless they very occasionally appeared as the subject of ecclesiastical causes. The same phenomenon appears in the records of the local courts. General congruence between the ecclesiastical and the local court remedy also appears in what can be pieced together about the principles of law applied. Evaluation of the legal elements requisite to constitute actionable defamation in the local courts is generally more difficult than for the Church courts. The records are by nature less informative, there was no academic writing, and use of the general denial ‘Not guilty’ obscures whatever discussion of legal issues there was. Nevertheless the scribes do lift the veil often enough to suggest that many of the same legal factors were relevant. First, truth appears as a defence. The records regularly contain the plaintiffs allegation that the slanderous words were false, and even though the general denial was by far the most prevalent answer by defendants, the affirmative defence of having spoken truly was not unknown. One defendant pleaded bluntly, ‘Truth is no defamation.’8 Others offered the same plea in substance.9 In two instances juries found specifically that the plaintiff had been guilty of the wrongful taking of which the defendant had accused him, and the court gave judgment for the defendant.10 Whether or not truth had to be 1 E.g.. Tyfayne v. GodeJ'rey (1309), Manor Court of King's Ripton (Hunts.), PRO SC 2/179/15, m. 15r: 'Convictum est per iuratam quod Stephanus Godefrey iniuste defamavil Johannam Tyfayne vocando ipsam meretricem et infidelem’. 2 E.g.. Caldecote v. Well, Exeter Mayor’s Court, Devon RO, Roll of 30-31 Edw. I, m. 7r: ‘sustentricem bordelli'. 2 E.g., Burgeys v. Nedham, Ipswich Borough Court, Suffolk RO, C 5/3, Roll of 17-18 Edw. I, s.d. Friday before Ascension (13 May 1289): ‘ipsum vocavit iudeum et usurarium'. 4 E.g., Hedde v. Raugate, Hatfield (Yorks.) Manor Court roll, Leeds Archives Dept. Sheepscar Library DB 205/12, s.d. Wednesday the morrow St Mark 14 Edw. Ill (26 April 1340): ‘vocando illam sortilegam'. 5 Four examples have been found: Halk v. Smith, Ipswich Borough Court, Suffolk RO C 5/3, s.d. Thursday after feast of Exaltation of the Cross; Wylesham v. Painter, ibid.. Roll of 17-18 Edw. I,s.d. Monday feast of St Peter in Chains (1 August 1289); Homelyn v. Sale, Exeter Mayor’s Court, Devon RO, Roll of 30-31 Edw. I, m. 39r; Littlejohn v. Martyn, Lakenheath Manor Court roll, Cambridge UL, EDC 7/15/ii/l, s.d. Thursday in Pentecost week 3 Edw. Ill (15 June 1329). h Two examples have been found: Borrey v. Chalener, Shrewsbury Borough Court, Salop. RO, 3365/758. s.d. Tuesday before Ascension 1 2 Edw. I (16 May 1273); Fichet v. Da (1308), Chester Pentice Court, Chester City RO, SR/9, m. 4d. 7 See supra, p. xxvi. KSelect Pleas in Manorial and other Seignorial Courts (SS Vol. 2) 82. y Belringer v. Loku (1303), Exeter Mayor's Court. Devon RO, Roll of 30-31 Edw. I, m. 21; Underwode v. Toroid, Honour Court of Clare (Yorks.), PROSC 2/212/33, s.d. Wednesday after feast of St Hilary 2 Edw. 11(15 January 1309); Boghelegh v. Edward (1321), Exeter Mayor’s Court, Devon RO, Roll of 13-14 Edw. II, m. 36. Mussecumbe v. Hewere (1304), Brightwalton (Berks.) Manor Court, PRO SC 2/153/67. m. 21 d : Tdeo vicini tenentes inde carcati dicunt quod predictus Ricardus uxorem predicti Johannis non dispersonavit nec dispersonare potuit eo quod culpabilis fuit de asportatione predicte garbe’. Manthrope v. Trokedis, Gt. Yarmouth Borough Court roll, Norfolk RO, C 4/16, s.d. Monday after feast of St Barnabas (1294).

INTRODUCTION

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pleaded as an affirmative defence or could be pleaded under the general issue is difficult to say. Perhaps it is an anachronistic question, suggesting more uniformity and sophistication in pleading and record keeping than existed at the time. But there is good evidence that defendants might excuse themselves by showing that they had spoken the truth. Second, malice played a role in the local courts as it did in the ecclesiastical tribunals. It was often alleged by plaintiffs. Occasionally its absence was specifically pleaded by defendants. At Great Yarmouth in 1283, a defendant argued that he could not be made to respond in damages because his words had been said only ‘castigando et placitando et non maliciose.’1 He was admitted to wage his law. In the Ingatestone manor court in Essex, one defendant alleged that he had not spoken slanderously in that he had only ‘reasoned with [the plaintiff] by sweet words.’12 In one respect, however, at least if reiteration is a reliable guide, the manor courts kept a tighter rein on the defence of malice than did the Church courts. They rarely admitted it to excuse accusations made before another court. The records contain many allegations that defendants had defamed plaintiffs before the judges of royal,3 hundred,4 feudal,5 or ecclesiastical tribunals.6 Nothing of what we might call a qualified privilege was pleaded in response.7 This practice may be explained by the customary principle that tenants of a manor were obliged to bring pleas before the manor court as long as a remedy was available there. But it is noteworthy that the ‘abuse’ for which the ecclesiastical tribunals have been most blamed - impugning the decisions of other courts - appears more frequently in the surviving records of the local courts. Third, the miscellaneous defences which were also available under the canonical remedy appeared often enough in local-court records to suggest an 1 Drogo v. Wastemham, Norfolk RO. C' 4/4. s.d. Monday feast of St Peter’s Chair (22 February). See also a ease from 1281 in which the defendant pleaded that he had not called the plaintiff a thief, 'nisi inlerogando argentum quod sibi debuit.' Court Rolls o f the Wiltshire Manors o f Adam de Stratton, R. B. Pugh ed. (24 Wilts. Rec. Soc., 1970), no. 145. 2 Jordan v. Lawman( 1304), Essex RO, D/DP M4, m. 6: 'verbis suavibus ipsum racionavit et non verbis ascerbis sicut dictus Ricardus ei inponit'. The inquest found against the defendant. 3 Brighouses v. Copley, Wakefield Manor Court, Yorkshire Archaeological Soc. MD/225/1364, s.d. 20 November. J Julian v. Sands (1279), Rickinghall (Suffolk) Manor Court, BL Add. Roll 63397; Presentment of Man Wymondley Manor Court, Hertfordshire RO, 57485, s.d. Monday before feast of the Purification 33 Edw. I (2 February 1305). 5 Stonyland v. Stonvlong (c. 1338), Redgrave Manor court, Univ. of Chicago Bacon MS. 10, m. 10; Fitz Robert v. Gillardon, below, no. 47. h These are more numerous than the others, and may in practice have blended with those actions brought for having sued in court Christian over a matter belonging to secular jurisdiction. E.g., Gilbert v. Swetth, Hingham Manor Court roll, Norfolk RO, MCR/B/3, s.d. Monday after Michaelmas 5 Edw. I (4 October 1277): 'Galfridus Gilberd recuperat per inquisitionem de Ricardo Swetth de eo quod iniuste diffamavit filiam suam versus ordinarium pro dampnis suis ii s'. 7 An exception found is Underwode v. Toroid, Honour Court of Clare (Yorks.), PRO SC 2/212/33, s.d. Wednesday after feast of St Hilary 2 Edw. II (15 January 1309). The defendant pleaded that he had as capital pledge presented truly that the plaintiff has committed hamsocn; the plaintiff could not deny this and judgment was given accordingly. Gilberd v. Maggeson (1367), Methwold Manor Court (Norfolk), PRO DL 30/104/1471, m. 2d, indicates the same likelihood. In an action apparently brought against a single juror at the Norwich assizes, the defendant demurred to the manor court's jurisdiction. No result appears.

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ecclesiastical parallel. Provocation by the defendant was occasionally pleaded, although the more frequent practice was to allow cross-actions and make a small monetary award to each party.1 Pre-existing bad fame of the plaintiff was occasionally offered as a defence.12 The relative infrequence of these affirmative defences in the surviving records, however, makes it likely that they were treated as mitigating factors in the award of damages, if indeed they were considered at all. The canon law had left a good deal of room for judicial discretion in evaluating the weight to be given to matters like anger and provocation. This is such a sensible approach that the local courts might well have taken it, with or without the precedents supplied by canonical defamation. If so, it is only natural that such defences should have appeared only occasionally in the actual court records. Defamation in the local courts always differed from its canonical counterpart in the nature of the damages alleged and in the remedy offered. The existence of actual loss and the recovery of money damages were stressed in the records of the local courts, whereas they were deliberately played down and probably legally irrelevant in the ecclesiastical tribunals. In this respect, localcourt defamation was akin to trespass even where, on the question of actionability, it was treated as a separate legal category. Money damages were always claimed. The invariable claim of actual damages does not necessarily prove that defamation in the local courts was distinct conceptually from the ecclesiastical remedy, since the claim that the plaintiff had suffered physical or monetary loss may often have been a purely formal allegation. However, the frequency with which the actual harm suffered was set out with particularity does suggest that many courts required a real loss. Some of these instances involved a loss incurred in another tribunal; as in cases where the defendant’s words had caused the plaintiff to be summoned before an ecclesiastical court,3 or where defamatory words had caused the plaintiff’s imprisonment.4 Other surviving cases alleged specific damages of miscellaneous kinds. A man had missed a chance to purchase two fat pigs when the defendant had called him false and faithless.5 A proctor had lost his post with the prior of Walsingham because the 1 E.g., Biscop v. Lanke, Horsham Manor Court roll, Norfolk RO, NRS 19496, 42 B7, s.d. Morrow of SS. Peter and Paul (1266) and Lanke v. Biscop, ibid; Bal v. Stanes, Manor Court of Toynton. Lines. RO, I Anc. 3/18/12, s.d. Tuesday after feast of the Ascension (11 May 1339), and Stanes v. Bal, ibid. 2 Willeson v. Hill, Hatfield Manor Court roll, Leeds Archives Dept. Sheepscar Library DB 205/11, s.d. Wednesday after feast of St Luke 12 Edw. Ill (21 October 1338): ‘Compertum est per inquisitionem xii iuratorum quod Matillida uxor Willelmi del Hill non defamavit Emmam uxorem Elie Willeson nisi in forma quam defamabatur per alios. Ideo iudicium in respectum usque ad proximam curiam." However, judgment was given for the plaintiff in a later entry. 3 E.g., Cady v. Prow (1281), Horsham Manor Court roll, Norfolk RO, NRS 19500,42 B7, m. Id; ‘quod fecit earn amittere catalla sua coram decano". The plaintiff recovered 6d. 4 E.g., Kitsoncheild v. Both, Wakefield Manor Court, Yorks. Archaeological Soc., MD 225/1364, s.d. 30 March: ‘per procurationem et iniusta verba ipsius Thome de Both fuit imprisonatus per ix septimanas". 3 Joce v. Joce (1338), Woodford Manor Court roll, Northants. RO, SJ 58, m. li d: ‘perdidit creanciam duorum porcorum pinguium de quodam mercatore".

INTRODUCTION

lvii

defendant had called him a false conspirator.1 A maker of cross-bows had lost the sum of 18d. when prospective purchasers refused to complete a sale after the defendant called him a thief and a traitor.12 The habit of pleading detailed damages was not absolutely universal, and there were cases where no more was pleaded than generalised loss of credit among merchants or even neighbours, an allegation which might or might not have called forth more specific evidence of loss at trial.3 One would probably be justified only in concluding that there was a tendency to emphasise actual damages in the local courts which never existed in the ecclesiastical forum. ‘Tendency’ is a weak word. But it accurately describes the nature of the evidence. In two particulars, it is possible to demonstrate concrete results which followed from the stress on actual damages in local courts. First, several courts, particularly those of boroughs, entertained defamation actions where language not otherwise defamatory was rendered actionable because of special loss. Mostly brought by merchants where the words had imputed a defect in their goods without imputing a crime to their person, these actions anticipate later common-law doctrines.4 They also represent something of a missed opportuni­ ty. There were never more than a few of them, but had they been allowed to flourish, they might have led to a remedy which looked principally to the harm inflicted, rather than to the actual words used. This did not happen. Second, there were cases in which the defendant specifically pleaded as an affirmative defence that the plaintiff had suffered no demonstrable harm. These cases have already been alluded to in distinguishing local-court defamation from physical trespass, but becausea fewofthemappearto have been‘testcases’ they deserve emphasis. The most fully recorded is an action heard at Wakefield in 1307 printed in the text of this volume.5 It does not stand alone. At St Ives, for example, a jury found that the defendant had called the plaintiff a thief and a seducer, but that the plaintiff had suffered no damage or loss of services as a result. He therefore recovered nothing.6 Records for the borough of Ipswich7

1 Parminterv. Glen, Honour of Clare (Yorks.) Court roll, PRO SC 2/212/35, s.d. Wednesday after feast of Circumcision 6 Edw. 11 (3 January 1313): 'per quod servicium suum versus priorem de Walsingham cuius procurator fuit amisit’. 2 Arblaster v. Messager (1289), Gt. Yarmouth Court Rolls, Norfolk RO, C 4/10, m. 5d: \ . . ubi dictus Johannes pactum fecisset cum duobus hominibus ad faciendum ii arcus ad arbalter’ pro factura quorum debuit habuisse xviii d. eadem Beatrix dixit ad predictos homines quod idem Johannes fuit fur et traditor per que verba Johannes perdidit dictos xviii d ’. 3 E.g., St. Alban v. Payn (1331), Winchester City Court, Hants. RO, F/TC 1/3, m. 14d: ‘per quod ipsi amiserunt credenciam de creditoribus suis cum quibus solent negociari’. 4 See Curteys v. Poyfoy, below, no. 38; Engham v. Burton (1287), Gt. Yarmouth Borough Court roll. Norfolk, RO, C 4/9, m. 4r: ‘dixit quod mercandisse sue fuerunt false et putride per quod . . . ’. 5 Wakefield v. Brownsmith, below no. 43. h Wardeboys v. Pollard (1290), PRO SC 2/178/97, m. 4d. 7 Tayllur v. Lytelund, Suffolk RO, C 5/3, Roll of 17-18 Edw. I, s.d. Monday after feast of St Gregory (14 March 1289); the defendant’s demurrer was that the plaintiff‘non assignat habuisse aliquod dampnum occasione eiusdem defamationis’. Judgment was given for the defendant.

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and for the manors of Hatfield (Yorkshire)1 and Toynton (Lincolnshire)12 produce explicit holdings to the same effect. Although the evidence is not thick enough to prove that actual damages were essential in the local courts, it is nevertheless sufficient to conclude that the tendency to emphasise actual damages had consequences which determined the outcome of some litigation. They suggest the possibility that, even though elements of the ecclesiastical remedy appeared in the local-court cases, a different underlying theory was at work, one that looked to demonstrable harm rather than reputational loss. Whatever the underlying theory, the records show virtual uniformity as to the remedy offered. Whereas the ecclesiastical courts offered a public apology coupled with penance, the local courts offered the award of a small sum of money. No awards of more than a few shillings have been found. In few instances did the courts vary this practice. The use of the pillory or cucking stool as a punishment for a defamer can be found,3 but it was more appropriately part of a public prosecution than of a civil action. In three instances, the court record stated that the defendant was to pay damages to the parish church instead of to the person defamed.4 Otherwise, money damages were universal. Only rare exceptions in the records betray any sign that monetary awards for defamation were thought inappropriate in slander cases. This leaves the central dilemma of understanding the history of defamation in the local courts unanswered. Why is it that when many manor and borough courts regularly heard defamation cases in 1300, by 1400 defamation pleas had everywhere ceased to be heard?

III. FATE OF LOCAL COURT JURISDICTION

(a) The Fourteenth Century By 1400 the local courts had lost their jurisdiction over civil actions for defamation. The loss did not occur everywhere at the same time. In some manor courts no defamation pleas were entertained even during the reign of Edward I. Defamation cases are very difficult to find, for example, in Kentish manor records, perhaps a mute tribute to the influence exerted in that county by the 1 SueI v. Aylse, Aylse v. Snel, below, no. 51. 2 Bal v. Stanes, Lines. RO, 1 Anc. 3/18/12, s.d. Tuesday after feast of the Ascension (11 May 1339): ‘Et quia manifestum est quod nullum dampnum incurrit racione dicte defamationis ideo ipse Simon in misericordia et dictus Henricus quietus sine die.’ 3 See Great Yarmouth Borough Court roll, Norfolk RO, C 4/21, s.d. Thursday before Christmas (24 December 1299); Battle Court Roll, Huntington Library, BA 859 (1532). 4 Atari v. Bedell (1300), Manor of Kings Ripton (Hunts.), PRO SC 2/179/10, m. 4: ‘ad dampnum suum trium denariorum quos dedit ad lumen ecclesie'; Carliton v. Wro, Manor Court of Methley, Leeds Archives Dept. Sheepscar Library, Roll of 1339-40, s.d. Tuesday after feast of Translation of St Augustine (12 October): ‘ad dampna que taxantur ad dimidiam libram cere coram ymagine beate Marie’; Breton v. Brembel (1361), Manor Court of Hinderclay (Suffolk), University of Chicago Bacon MS. 125, m. 6d: \ . . solvent domino dimidiam marcam et emendationi ecclesie de H. x 1.’. This was a recognisance, however, to guarantee good conduct.

INTRODUCTION

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archbishop of Canterbury.1 In places where slander cases can be found, how­ ever, for the most part the loss of jurisdiction had occurred by the end of the first third of the fourteenth century. In only a few courts did defamation cases con­ tinue to appear in records from the reigns of Edward III and Richard II. By the end of the century the disappearance was complete in all local courts surveyed. Such a disappearance seems unlikely. The local courts abandoned a profitable source of jurisdiction without visible external pressure. Local courts followed the pattern of the royal courts in many ways, and this may have something to do with the decline, but nothing yet discovered required them to follow a lead which meant the loss of jurisdiction and the loss of revenue. Because the disappearance has been the most unexpected finding of this research, the evidence for it should be set out with particularity. The first sort of evidence, perhaps the least conclusive, is the editor’s repeated experience of finding defamation pleas in manor court rolls from the years around 1300 but not in rolls from the last part of the fourteenth century. That experience has occurred so often, for manors surveyed even casually, that it creates a cumulative effect. It happens too often to seem mere chance. It is not entirely satisfactory proof, however, because the volume of recorded litigation of all sorts on most manorial court rolls declines markedly during the course of the century. By 1400 many local-court rolls contain little except land transactions, manorial administration and leetjurisdiction. Also, whatlitigation was recorded by 1400 often appears without any indication of the underlying facts. That is, the record may state that a plea of trespass was heard, without giving any of the facts behind the case. Satisfactory proof requires manors where defamation suits were earlier heard and where enough pleas with discoverable facts were later recorded to inspire confidence in their representative character. Fortunately, they exist. The manor court of Methley in Yorkshire, for example, heard defamation pleas as late as 1340. But for the year beginning with Michaelmas 1374, the court roll contains 34 trespass pleas alleging detailed physical wrongs, but no pleas alleging defamation.12 The Huntingtonshire manor of King’s Ripton regularly entertained defamation cases in the early 1300s. But taking the rolls from the first year of the reign of Edward III produces 29 trespass pleas with facts alleged, none of which involved slander.3 The pattern is repeated for the manors of Yarcombe (Devon),4 Wakefield (Yorkshire),5 Redgrave (Suffolk),6 Newton Longville (Buckinghamshire)7 and the Honour of Clare (Yorkshire).8 The records for all these courts contain 1 E.g., Manor Court of Boxley, PRO SC 2/180/8-12 (Edw. 1-Edw. Ill); the only slander action was brought for defaming the bailiff. The absence is not confined to Kent, however; e.g. the manor of Stevenage (Herts.) has records from 1279 but without defamation cases: London Guildhall Library MS. 10 312/137-57. 2 Taken from Leeds Archives Department, Sheepscar Library, Roll of 48-49 Edw. Ill, and compared with rolls of 13-14 and 14-15 Edw. Ill, both of which contain defamation pleas. 3 Taken from PRO SC 2/179/22-34 (not consecutive). 4 Devon RO, Exeter, CR 1441 (1442-43) (9 pleas). 5 Yorkshire Archaeological Soc., Roll of 1380 (36 pleas). 6 Univ. of Chicago, Bacon MS. 20 (1343-57, not consecutive) (12 pleas). 7 New College Oxford MS. 3874 (1378 -95) (12 pleas). 8 PRO SC 2/212/39-40 (25 pleas).

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enough litigation with facts given to allow a conclusion to be drawn: by 1400 defamation cases were not being heard. If one expands the list to include manors where the number of cases with recorded underlying facts in the late fourteenth century is too low to be absolutely certain, but for which the generalisation nevertheless holds true so far as the records go, the manors of Brigstock (Northamptonshire), Waltham (Essex), Horsham St Faith (Norfolk), Pattingham (Staffordshire), and Kirton (Lincolnshire) may be included. The same pattern holds for the manors Maitland used in his original Selden Society volume: those of the abbey of Bee and the fair court of St Ives.1 The records of two other manors, Battle (Sussex) and Minehead (Somerset) also support the generalisation. Though they have left no thirteenth- or fourteenth-century records to judge earlier practice by, the court scribe during the fifteenth century (when the surviving records start) described litigation in detail often enough to make it virtually certain that the court did not hear defamation pleas. The surviving Battle records produce 58 trespass pleas with discoverable facts. There are no defamation cases.12 The Minehead manor-court records from August 1405 to September 1413 yield 66 cases of physical trespass. There is not a single defamation plea.3 Borough court records repeat this pattern. At Exeter, for instance, the relatively frequent defamation entries of the reign of Edward I had dried up by the end of the fourteenth century. The court roll for 4-5 Richard II contains 49 cases with facts given in some detail. None is a defamation case.4 At Winchester the court roll in 1403-04 contain 79 trespass entries which are demonstrably not defamation cases. It has no defamation cases that are not a form of contempt against town officials.5 Shrewsbury,6 Chester,7 Great Yarmouth8 and Wallingford9 fall into the same pattern: recognisable defama­ tion cases from early in the fourteenth century and before; none from the late fourteenth and the fifteenth centuries. Where a case appears as slander or defamation, it turns out to have been brought by a town or court official and hence was a species of contempt. This is true for the records from London.10 No private remedy for defamation was available. 1 All of these are found in rolls contained in the appropriate county record office, with the exception of the last which are found in King's College, Cambridge (Bee) and the PRO (St Ives). They all contain few pleas in any significant period with facts given, usually fewer than five. E.g., Brigstock Manor Court, Northants, RO, Roll X.365/52 (1345) has many trespass entries, but none with facts recorded. X.366/55 (pleas temp. Hen. IV) produces four trespass entries with facts recorded; none involves defamation. On the whole, there were fewer trespass entries for the 15th century, with debt cases constituting a higher proportion of the litigation recorded. 2 Taken from Huntington Library, BA 546-755. 3 Taken from Somerset RO, DD/L, Box P 26. 4 Compare supra, p. li, note 1. 5 Taken from Hants. RO, BX/TC 9/37. 6 Salop. RO, 3365/758-87 (1272-1377, but not consecutive). 7 Chester City RO, Pentice Court Rolls SR/1-285 (1297-1451, but not all examined); the rolls from 26-29 Hen. VI, for example, produce 87 trespass pleas for physical injury or wrongful taking, none for defamation. 8 Norfolk RO, C4/5-116 (1283-1410, but not all examined); the rolls for 1408-11 produce 28 physical trespass pleas, no defamation pleas. Berks. RO, W/J Bb 1-26 (1353-75). 10 See Index to Calendar o f Pleas and Memoranda Rolls . . . A. D. 1323-1482, ed. A. H. Thomas and P. E. Jones, 6 Vols. (1926-61), s.v. defamation.

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The borough of Ipswich is the only exception in the courts surveyed. But it is an exception which ‘proves the rule’. The courts there did continue to hear defamation cases throughout the fifteenth century, although at a reduced volume from the fourteenth. The evident reason for the continuation, however, was that the practice was authorised by the written constitution of the borough. The common clerk of Ipswich, John Blake, had carried off the borough’s records sometime during the reign of Henry III. In 1290 the officials ordered a new record of the town’s customs to be set down in writing, and (as would have been natural at that time) the customs included jurisdiction over defamation.1 When defamation disappeared elsewhere, it continued in Ipswich because of the written custom which allowed it. Actions for slander appear in the borough court records based expressly on ‘the book of constitutions of the town of Ipswich.’12 Thus, although Ipswich appears to show the continued vitality of defamation in local courts, in fact it shows the reverse. Only where special circumstances existed did local courts have jurisdiction in the later Middle Ages.3 Otherwise defamation was a purely spiritual plea. (b) Possible Reasons for the Disappearance How and why did the decline and disappearance of defamation pleas occur in the local courts? The record evidence suggests only a few possible answers. Some instances of what appear to have been ‘test’ cases have survived. The Wakefield case referred to above,4 and several others like it,5 in which it was held that unless actual damages were shown no recovery was possible, may well have established a legal principle that made it difficult to sue for defamation. Special damages may have been hard to prove.6 At least the precipitate decline in recorded pleas after the ‘test’ cases had been decided suggests that a legal principle which made success doubtful had been determined. At Winchester the same result was reached at the very start of the fifteenth century by a decision restricting the availability of defamation to members of the Twenty-Four, the city’s governing body.7 That case ended whatever general availability remained, although defamation pleas had long since ceased to be frequent. Apart from these isolated cases, however, the records provide few 1 The story is told in Nathaniel Bacon, The Annalls o f Ipswiche, W. H. Richardson ed. (1884), 318; the provision for defamation is c. 73. ■ ’ E g Latford w. Petit (1479). Suffolk RO, C 5/11/13, m. 1 0 :‘cum in libro constitutionum ville Gippewici inter alia contineatur quod si aliquis false et maliciose diffamaverit aliquam personam in loco publico seu mercato coram populo . . •' A similar custom seems also to have existed at Torksey; see Borough Customs, I, ed. Mary Bateson (SS Vol. 18), 79. 4 See Wakefield v. Brownsmyth, below no. 43. 5 See the cases referred to above, p. lvii. ” The difficulty of proving special damages is illustrated by Turner v. Richard, Gt. Yarmouth Borough Court roll, Norfolk RO. C 4/4, s.d. Monday after Ascension (31 May 1283). The plaintiff claimed that the defendant had 'vexed' him in a Church court unjustly to his loss of 3s. The ecclesiastical proceedings and the loss were apparently admitted, but the defendant argued, and the inquest found, that the loss had been caused by the foolishness (per stulticiam) of the plaintiff’s wife. The defendant went sine die. ' Chowde v. Steynour (1403), Hants. RO, BX/TC 9/36, m. 31; the defendant pleaded ‘quod talis consuetudo est et extendit se ad xxiiiior et petit judicium'. No judgment was recorded but the case ends on the next roll, at m. 2d, marked ‘non prosequitur.’

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indications to suggest just how the change occurred. Perhaps the change was one part of a tacit compromise with the Church over jurisdiction which occurred during the reign of Edward I. Professor Donahue has plausibly suggested the existence of such agreement,1 and of course the explanation fits well with the progress towards marking off respective spheres of jurisdiction which undoubtedly occurred around 1300.12 A piece of support for this argument comes from the Chester Portmote court records; in 1297 the court entertained a demurrer in a defamation case; the defendant pleaded that, ‘he was not bound to answer. . . because pleas of defamation touch the holy Church.’3 His position was that there should be no overlap of jurisdiction, and that defamation fell on the Church’s side. The difficulty with such an understanding of the disappearance, apart from the paucity of direct evidence, is that defamation pleas did not everywhere cease in 1300. Although they declined in numbers and vanished in some courts, other courts continued to hear them well into the reigns of Edward III and even Richard II. Again, the variation found in the local-court records defeats any attempt to find a neat answer. The records show an irregular decline. In one sense it may be sensible to regard the disappearance of local-court jurisdiction over defamation as a small part of a larger change from a culture dominated by oral ways of doing things to one in which writing played the more significant part. Dr Clanchy has compellingly described such a shift from an oral to a written culture between 1066 and 1307.4 Defamation was overwhelmingly oral throughout this period, and when formal dispositive acts were also oral it may have seemed more natural to treat defamation on a par with other legal acts than it became when most important actions were embodied in a writing. When writing became more important around 1300, transactions resting on parol counted for less. Something like the same thing occurred in the royal courts between 1290 and 1320, with the adoption of the rule that covenant could not be brought without proof by written document under seal.5 Local court jurisdiction over defamation might therefore have been a casualty of the shift in the way man regarded the importance of spoken words. This explanation cannot be completely satisfactory. It has not been shown that a similar change occurred in all legal actions. It does not explain why the ecclesiastical courts should have continued and perhaps widened the scope of their jurisdiction. And it will not explain the rise of defamation actions in the royal courts during the sixteenth century, when the overwhelming majority of civil actions continued to be brought for spoken, not written, words. 1 72 Mich. L. Rev. (1974) at 701. 2 The controversy over jurisdictional claims and issuance of the writ Circumspecte agatis reflect this progress. See Councils & Synods, II, 974-975. 3 Simon servant o f Smalproud v. Blakerode, Chester City RO, MR/3, s.d. Monday after feast of St Luke 25 Edw. I (21 October 1297): 'dicit quod non tenetur respondere sue narrationi . .. et placita diffamationis tangunt sanctam ecclesiam et petit judicium’. The outcome of the case is unclear. 4 M. T. Clanchy, From Memory to Written Record (1979); it should perhaps be said that Dr Clanchy’s argument in no way depends on this evidence. 5 See J. H. Baker, Introduction to English Legal History (2nd ed. 1979), 265.

INTRODUCTION

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Nevertheless, the court records produce some support for it. They are not in fact completely silent on the question of why the disappearance occurred. They suggest the existence of a real perception that the harm occasioned by mere words was less properly compensible by money damages in secular courts than were purely physical wrongs. Slander might injure a man’s reputation, but it rarely caused him physical or monetary harm. It was therefore a thing of the spirit, appropriately a question for the tribunals of the Church.1 One of the indications of this perception is the increasing separation of physical from non-physical trespass in many of the court rolls around 1300. The ‘test’ cases just mentioned provide one such sign. But there are others. Dropping the phrase ad pudorem for the shame occasioned by a trespass in the damage clause was one of them. As noted above, this phrase does not appear in the mid­ fourteenth-century records even where it had commonly appeared earlier.12 The disappearance of the habit of coupling slanderous words with physical assaults in court roll entries, and the restriction of descriptions of trespass to physical acts alone, stands as an indication of the same separation.3 Where once it had seemed natural to think of physical and intangible wrongs together, by the fourteenth century it was coming to seem incongruous. A case heard at the Suffolk manor of Redgrave in 1315 produces a clear statement of the theme. The action was brought for false procurement of an indictment against the plaintiff at the sheriffs tourn. The defendant demurred: the plaintiff, he said, had not accused him of having done anything, but only of having said something. Words were ‘but wind’ he alleged, and did not give rise to a cause of action.4 Several cases from the borough of Ipswich, ironically the one place where defamation based on a special custom continued, repeated that theme. Words were but wind. Hence they were beneath the notice of, or at least outside the proper sphere of, a secular court.5 The distinction was not simply between major and minor harms, not a question of division of jurisdiction between royal and local courts according to the amount of damages normally involved. It was a division between acts which had physical consequences and those which entailed an essentially intangible or ‘spiritual’ loss. The division, of course, could never have been absolute. Words often have outward consequences, and they can sometimes trench upon public order. Medieval practice in the local courts recognised this fact. To raise the hue and cry against a man normally resulted in a quasi-public harm. It is no surprise to find that local courts consistently punished men for falsely and unjustly raising the hue and cry.6 There were other situations where local courts dealt with the 1 Ibid, 364. 2 See above, p. lii. 3 Compare, e.g., the figures given for Exeter, above, p. lx, note 4. 4 Chaplain v. Shepherd, below, no. 46. 5 Wesierfend v. Govelere, Suffolk RO, C 5/3, Roll of 13 Edw. I, s.d. feast of St Laurence (10 August 1285): 'desicut Johannes acupat eundem Robertum de vento tantum et de nichil alio dicit quod non potest ducere ipsum ad inquisitionem neque ad legem’; Ferur v. Leech, below no. 36; N. Bacon, The Annalls o f Ipswiche (1884), 16. 6 E.g., Hundred Court of Codsheath, Lambeth Palace ED 805, m. 12d (1404), an amercement against John Kyngesdonne for unjustly raising the hue and cry against John Morle.

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consequences of speech. Cases involving contempt of court, in the form of disturbing court proceedings or of insulting the judges, continued to be heard.1 So too were cases involving insults against officials.2 Disciplinary actions against those whose tongues had disturbed the public peace - the common scold - were often brought.3 But all of these involved a special sort of defamation. They did not touch the simple case at the centre of the law of defamation, that of an ordinary person injured by slanderous words. As to that, both in 1400 and in 1500 jurisdiction rested with the ecclesiastical courts alone. (c) The Sixteenth-Century Local-court jurisdiction over defamation revived in the sixteenth century with the rise of the action on the case for words in the royal courts at Westminster. Indeed the two ran parallel. Plaintiffs in many instances then had their choice of secular forum. This availability may admit of one qualification. Many local courts, particularly manor courts, have left little trace of litigation from the Tudor era. Court rolls often record only land transactions and other essentially administrative acts. To the extent that the records accurately reflect what happened, an overall decline in litigation overshadowed the concurrent revival of civil pleas for defamation.4 But where suits between parties were heard in the sixteenth century, they included defamation pleas. In some instances the nature of the record evidence allows only for inference that this happened. The searcher finds frequent sixteenth-century pleas styled ‘trespass on the case’, whereas during the fifteenth century there had been none or few.s Since this was the form in which actions for defamation were brought in the royal courts, it is reasonable to infer that at least some of the local-court pleas so styled also dealt with defamation. Where it is possible to penetrate behind the form and to discover the substance of the cases, that substance confirms the inference. Many pleas marked ‘case’ in the local-court records turn out to have dealt with defamation. Moreover some local courts, especially those of boroughs, have left pleadings from this period. They give the facts relied on, and they augment the ' E.g., Manor of Harpenden (Herts.), WAM 8941, s.d. Thursday feast of St Barnabas (11 June 1388): ‘Willelmus More garulabat in plena curia in contemptum domini Regis et curie et omnium vicinorum etc. Ideo ipse in misericordia.’ 2 E.g., Manor of Polstead (Suffolk), BL Add. Roll 27690, s.d. 31 July 9 Hen. V (1421): ‘Henricus Offoundenhal defamavit senescallum et clericum domini . . .’. 3 E.g., Manor of Bradford (Yorks.), PRO DL 30/129/1957, m. 34d (1355): ‘Item presentatum est quod Agnes de Baksholf . . . et communis maledictrix gentium, ideo in misericordia'. 4 However, recent investigation of the ancient-demesne manor of Havering (Essex) has shown that the plea rolls of the royal courts contain records of cases removed from the local court which do not appear in the original manor court rolls. See M. K. McIntosh, ‘Central Court Supervision of the Ancient Demesne Manor Court of Havering, 1200-1625,’ in Law, Litigants and the Legal Profession, ed. E. W. Ives and A. H. Manchester (1983), 87-93. On this basis, it has plausibly been suggested that the absence of litigation from local court records is only apparent. 5 E.g.. Battle Court Rolls, Huntington Library, the first noticed being BA 853 (1528); Bromfield Manor Court, Salop. RO, the first noticed being found in 20/Box 4, s.d. 14 October 1563; Redgrave Manor Court, Univ. of Chicago Bacon MS. 48, m. 27 (1564); Chester Pentice Court, Chester City RO, SR/532 (1536-37), 5 of the 34 trespass cases on the roll being ‘on the case’.

INTRODUCTION

lxv

evidence of the court rolls. They are almost exact copies of the pleadings used in defamation cases in the royal courts; the plaintiffs good name, the defendant’s design to injure him, the slanderous words, the loss of credit and reputation were all set out in identical declarations.1 Likewise the pleas entered by defendants12 and even the jury verdicts recorded by court scribes employed the same forms.3 There is no reason, therefore, to examine the remedy for defamation in the local courts with the same care necessary for the earlier period. So far as one can tell, the same legal principles were at work in both royal and local courts. IV. CONCLUSION

The substantive law of defamation enforced by the local courts during the Middle Ages has proved to be an elusive subject. Sometimes it appears as a form of oral wrong or iniuria, the actionability of which depended on the monetary loss incurred or the degree of shame incurred. Sometimes local-court defamation appears to have been a variant of the ecclesiastical remedy, distinguishable only by the fact of damages awarded. Always, variations among different courts, brevity in court-roll entries, and the absence of any legal literature stand in the way of certainty on the part of the searcher. Occasionally even reasonable inference is impossible, and it may be that we are asking questions and attempting analysis which would have puzzled the people involved. Perhaps the most significant positive finding of examination of local-court jurisdiction over the private law of defamation has been the discovery that the local courts conformed to the practice of the royal courts in the fourteenth century by giving up their jurisdiction to the Church courts. They conformed to royal-court practice again in the sixteenth by taking up the jurisdiction when it was adopted at Westminster. The history of defamation cannot be said to follow a pattern according to which the king’s courts took over the jurisdiction of local courts. The two proceeded together. To the extent, therefore, that there was direct precedent for the royal-court jurisdiction over defamation in the early sixteenth century, the ecclesiastical law provided it.

1 See Brandfield v. Creare. below no. 60. 2 E.g., Blakehall v. Blakeale, Exeter Mayor’s Court, Devon RO, Roll of 32-33 Hen. VIII, m. 11, using the same absque hoc form of special traverse referred to below, p. cviii. ■ ’ E.g., Swane v. Snayle (1533), Battle Court Roll, Huntington Library BA 868: ‘Juratores inter Robertum Swane querentem et Thomam Snayle defendentem in placito transgressionis super casum dicunt super eorum sacramentum quod predictus defendens propalavit et dixit talia verba scandalosa de prefato querente qualia idem querens in narratione sua declaravit et assident dampna querentis ad x s. et pro misis xii d.'.

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4. D efamation

in the

R oyal C ourts :

the early

Y ears

I. INTRODUCTION

Historians of the law have not neglected the development of the action on the case for words. Several have made good use of cases taken from the plea rolls.1 Nonetheless, the effort required by a systematic examination of 100 years of plea roll evidence, coupled with the reading of the early manuscript reports, has not seemed without advantage. The written pleadings used in defamation cases provide a different, and perhaps a more solid, perspective from which to view the origins and expansion of this form of action. In part this advantage is attributable to the paucity of reported defamation cases before the last years of the reign of Elizabeth. Changes in the law around 1600 and the general neglect of sixteenth-century reports by later printers have meant that very few of the early defamation cases found their way into print. Sustained use of the plea rolls therefore fills a gap in the evidence. However, work on the plea rolls has also brought with it a separate and more important advantage. It allows the searcher, indeed it requires him, to view the growth of the action on the case for words through the eyes of the men who drafted the pleadings. By the sixteenth century the pleadings used in actions on the case, at least in the King’s Bench, were the work of individual lawyers.12The rolls make plain how these pleaders conceived of the basic nature of the remedy. On many points there appears to have been a communis opinio among them as to the proper way of framing declaratons in slander actions, one that is not always readily apparent in the reports. The existence of any communis opinio was not, it should be stressed, ever inconsistent with individual initiative or gradual change. It always left room for experiment. But its existence, and its importance in the everyday practice of the law, clearly emerges from prolonged contact with the plea rolls. What they show best is the draftsman’s eye view of the law. And it is a somewhat different perspective from that found in the reports. Four principal conclusions have emerged from a detailed study of the rolls. First, growth of the action on the case for words was a slower, more gradual process than has usually been thought. There was no one decision or even one group of decisions which established defamation as a regular part of the jurisdiction of the royal courts.There was no one moment when it became accepted. Second, there was experimentation, both to expand the scope of the remedy and to test its limits, throughout the sixteenth century. The plea roll evidence, indeed the evidence from reported cases, makes little sense without the assumption that lawyers had freedom in drawing their pleadings to seek 1 J. H. Baker, introduction. Reports o f Sir John Spelman, (SS Vol. 94), 236 48; Milsom, Historical Foundations (2nd ed.), 381-89; A. K. R. Kiraify, The Action on the Case (1951), 115-19. Among useful treatments based exclusively on printed reports are C. H. S. Fifoot, History and Sources o f the Common Law: Tort and Contract (1949), 126-31; Van Vechten Veeder, ‘The History of the Law of Defamation,' Select Essays in Anglo-American Legal History, III (1909), 446-73; W. Holdsworth, ‘Defamation in the Sixteenth and Seventeenth Centuries’ (1924), 40 LQR, 397-412; R. C. Donnelly,: ‘History of Defamation’ (1949) Wisconsin L. Rev. 99-126. 2 J. H. Baker, Introduction to English Legal History (2nd ed. 1979), 73-4; Marjorie Blatcher, The Court o f Kings Bench, 1450-1550 (1978), 112.

INTRODUCTION

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advantage for their clients. There was never, therefore, a fully settled or fixed understanding of the nature of the remedy for slander. Third, although the evidence of the plea rolls does not directly contradict that of the reports, it does diverge from it. Where the reports emphasise the unusual or ‘test’ case, the rolls do not. Reporters were interested in permissible arguments, to be used in later cases; hence the multitude of mitior sensus cases and hence the prominence given to ‘advanced’ or unusual arguments. Pleaders, on the contrary, had no reason to emphasise unusual points. In fact, they had every reason to do the opposite: to make each plea look as much like established usage as possible. From this difference in purpose followed a real difference in emphasis. Fourth, the primary source of the secular remedy for slander was ecclesiastical. Auctoritate deipatris was the starting point from which development occurred. The evidence makes most sense if we assume that the law developed in the Church courts provided the essential framework for the secular remedy. Of course there were always some differences. The regular award of money damages in the royal courts and the rule that imputations o f ‘spiritual’ crimes were not actionable in the royal courts were the most prominent of these. Also, there were pressures to move away from ecclesiastical precedents. By the end of Elizabeth’s reign, some of these were regularly succeeding, relaxing inherited principles at some points, applying them with more strictness at others. The action on the case for words had a life of its own from its inception in the royal courts. But the ecclesiastical origins of the remedy were its most important determinant.I. II. FIRST CASES AND GROWTH

Background and Precedents At the turn of the sixteenth century, defamation was an exclusively ecclesiastical plea. Local courts provided a remedy in very few places, and the common-law courts at Westminster would grant no relief. The common-law courts were, however, beginning effectively to prevent the ecclesiastical courts from hearing defamation causes where the underlying crime imputed had been one cognisible in a secular court. The initial appearance of this doctrine (so far as one can tell from the year books) had come during the 1480s, at least ostensibly to prevent the determination of guilt on the underlying criminal charge from being made before a tribunal without substantive competence over the crime. By the early years of the sixteenth century a series of actions in the King's Bench, founded upon the Statute of Praemunire and amounting almost to a campaign against the Church courts, had begun to implement this doctrine. The result created an anomalous situation, in which the royal courts insisted that the Church could not provide relief for a person defamed of a serious crime, but would not grant a remedy themselves. This was not an unprecedented situation, but it did involve apparent inconsistency and it created difficulties for men with legitimate grievances. There were bound to be attempts to secure a remedy in the courts at Westminster.

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For such an attempt, earlier practice in the royal courts provided more than one precedent. Although the common law provided no remedy for defamation per se, it did allow a remedy in analogous situations, where additional factors lifted the claim above the level of pure reputational loss. Contemporary lawyers could seize upon several existing actions, stretching or changing them slightly to fit a claim for simple defamation where the ecclesiastical remedy could no longer be brought. Of these possible precedents, actions founded on the statute Scandalum magnatum (1275) have been the best known to historians.1Under the terms of the statute, speakers of false words about great men, which words promoted discord within the realm, were subject to punishment. A civil action could also be brought on the statute by the magnate slandered. Although this remedy was, strictly speaking, available to a limited class of plaintiffs, there was an undeniable similarity between its terms and an ordinary claim for defamation. Might it not be expanded to cover, say, justices of the peace or lawyers? And later used more broadly still? There were at least four other possible precedents in common law practice. First, to claim a free man as one’s villein gave the man harmed a civil remedy. Although the plea required an allegation of lying in wait and the words vi et armis2 since its essence was the intentional impugning of another man’s status, it might be stretched to reach other sorts of claims which subjected the plaintiff to loss of freedom. Second, for two or more persons to conspire together to cause the indictment of an innocent man gave rise to a cause of action against the conspirators.3 Because of the close relationship between defamation and imputations of crime, there was an obvious parallel between ordinary defamation and the action founded upon a conspiracy to indict. It might be used, particularly if the requirement of a conspiracy could be disregarded or made a fiction. Third, false imprisonment, a form of trespass of ancient origin, could also fit some of the defamation claims being taken from Church-court jurisdiction.4 Where the person defamed had been illegally detained through the efforts of the defamer, he had an action for damages. This might naturally be stretched to cover many imputations of crimes where detention had ensued or perhaps even been legitimately feared. Fourth, under a statute dating from the reign of Henry V, the publication of a false title or muniments with the intent to disturb the title or possession of the legitimate holder of land gave rise to an action on the case.5 Although this would be a longer stretch than the others, where the damages from false publication could be framed in terms of the possible loss of the inheritance to the party defamed, this precedent might be seized upon by adventurous pleaders. In fact, the precedent does have a con­ nection of sorts with the later variant of defamation known as slander of title.6 All these precedents were in regular use in 1500. Not one of them, as they 1 3 Edw. I, c. 34; reenacted by 2 Ric. II, st. I, c. 5 (1379). - See Baker, SS Vol. 94, at 190, note 4. 3 P. H. Winfield, The History o f Conspiracy and Abuse o f Legal Procedure (1921). 4 See, e.g., F. W. Maitland, The Forms o f Action at Common Law (1963), 88-9. 5 I Hen. V, c. 3. 6 The discussion and cases cited in Kiralfy, The Action on the Case, 130-32, are particularly valuable on this subject.

INTRODUCTION

Ixix

then existed, would have fitted exactly the pattern needed to bring an action for defamation within the cognisance of the courts at Westminster. Pleaders would have had to vary the wording of the declaration appropriate in these actions to fit a defamation claim. They would have had to emphasise some of the facts behind a defamation claim and minimise others to make use of any one of the available precedents to seek a remedy in the common law courts at Westminster. To put it baldly, pleaders would have had to make a defamation plea look like something else. They did. The plea rolls show that every one of the precedents just mentioned was used to frame declarations for what amounted to a claim of defamation. The person whose right to hold a market was put in jeopardy when someone said that he had usurped that right,1 the man who could allege something like an arrest after the defendant had called him a felon,1 2 the person indicted where there was no conspiracy but there was one identifiable man behind the indictment,3 the free man who had been called a villein but could allege no physical lying in wait;4 all these men found pleaders to frame declarations similar to, but not identical with, the pre-1500 actions. The precedents, for one reason or another, would not quite fit the underlying facts. What the pleaded facts disclosed was at bottom a case of defamation. But that was not a plea the royal courts regularly entertained, and hence it must have seemed safer to try to adopt an existing form to fit, even if this involved some twisting and stretching. That the plea could no longer be brought safely in an ecclesiastical court would only have provided the occasion for the effort. Such a process of adaptation is one way in which legal change occurs. The plea rolls certainly show that it was one path taken by pleaders in developing a secular law of defamation. However, the evidence shows that this process was not the sole, or even the principal, path by which defamation entered the jurisdiction of the royal courts at Westminster. The precedents mentioned may have served to prepare the minds of the judges and lawyers for the step of allowing an action on the case in which the most important element was not a physical act. They seem also to have been relevant in the first cases on the rolls in which judgment was entered.5 However they were not determinative. The change is better explained by outright innovation and by direct adaptation of the ecclesiastical remedy. The wording of the earliest plea roll entries, and the development of relatively settled forms, to be discussed below, show this without doubt. In fact, the history of the fate of these possible precedents for defamation also demonstrates the fact of independent growth. Of this, no group of cases provides a better example than those involving the imputation of villeinage. 1 Prior of Christ Church, Canterbury v. Watte (1517), KB 27/1024, m. 40. The defendant demurred to the declaration, but no judgment was recorded. See also Rawson v. H-Wron (1514), KB 27/1011, m. 56d; Zouche v. louche (1532), KB 27/1084, m. 74. : E.g.. Warner v. Detton (1511), CP 40/977, m. 394d; Feld v. Norton et al. (1533), CP 40/1077, m. 451; Brewster v. Knyght (1544), CP 40/1120. m. 411. 3 E g.. Pare v. Shakspere (1511), CP 40/996, m. 314; see also Baker, SS Vol. 94, at 238, note 7. J E.g.. Asplyn v. Fox (1511), KB 27/999, m. 73d; Walter v. Love (1530), CP 40/1064, m. 516d; Bocher v. Morcombe (1536), CP 40/1090, m. 587d. 5 See below, pp. Ixxiii-lxxiv.

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Their history is not in fact much different from most of the other precedents given above. The villeinage cases also make the point particularly clearly, because they contrast with a contemporary development in the same area of law on the Continent. The Roman law Codex contained a text specifically allowing a remedy, outside the system of actiones iniuriarum, for a freeman who had been harmed by an imputation of servile status.1 Such a man could secure a judicial order imposing perpetual silence on the party who had put his free status in doubt. During the late fifteenth and sixteenth centuries, practice on the Continent, as reflected at least in the writings of commentators, expanded the remedy available under this text to embrace accusations other than those imputing servile status. The principle underlying the text, that it was wrong to impugn another man’s status, appeared broad enough to warrant expansion of a remedy where some other kind of slur on a man’s person or status had been made.2 The text came to be cited for a broader proposition than a strict interpretation of its language allowed, and litigants could use it to avoid the shorter limitations period of the actio iniuriarum. In other words, what had been a remedy limited to villeinage claims was expanded during the late fifteenth and sixteenth centuries. This sort of expansion is not what happened with the English villeinage cases. Instead of being widened to encompass new sorts of defamation, they were gradually absorbed into the action on the case for defamatory words. Only a tiny number of declarations found on the rolls used the form of the villeinage cases as a precedent to reach the broader defamation claim, and in the course of time the older remedy simply became a sub-category of the newer remedy. In the end, the imputation of villeinage was effectively dropped from court practice, probably because it had become trivialised, during the second half of the century.3 It never provided the source or the substance of pleading practice for the slander cases found on the early plea rolls. Pre-1500 actions for imputation of villeinage required the plaintiff to plead his free status, the defendant’s lying in wait to seize him as a villein, and the plaintiff’s consequent inability to carry out his business. The gist of the action, upon which issue was normally taken, was the status of the plaintiff: free man or villein? When one examines the earliest defamation entries on the rolls, it quickly becomes clear that, unlike developments on the Continent, the first English cases were not expanded versions of the villeinage precedents. Although in a few instances this form of action was used by pleaders to reach pure defamation cases, overall these cases were exceptional. The vast majority 1 Cod. 7.14.5. : J. Bertachinus (1448-97), Repertorium, II, s.v. diffamare (Venice, 1570, f. 66b): ‘Adde quod diffamare est alicuius famam detrahendo maculare . . Antonio Perez (1583-1672), Praeleetiones in duodecim libros Codicis (Lyon, 1653), ad Cod. 7.14.5, no. 10: ‘Attamen quia ratio ibidem subnexa generalis est (videlicet quod periniquum sit errore aut malignitate statum alcuius difTamari) interpretes nostri earn obtinere volunt etiam in omni alia causa, tarn civili quam criminali tarn personali quam reali quatenus alicuius iactantia ius alteri esse negatur aut super crimine infamatur.' The subject is also well discussed by Johannes Brunnemannus (1608 72), Commeniarius in Codicem (Cologne, 1771), ad id., no. 1. also noting the possible overlap with iniuria. 3 See below, pp. xcv-xcvi.

INTRODUCTION

lxxi

of early defamation declarations found on the rolls contained none of these elements.1They did not include most of the trespassory elements, and issue was taken on the speaking of the words, not on the plaintiffs status. At the same time the villeinage cases continued to be framed in the old form. The two existed side by side on the rolls, with minimal overlap. Gradually, however, as the separate action on the case for words became accepted, declarations in villeinage cases themselves began to imitate its forms. The allegation of lying in wait was dropped,12 the spoken English words were introduced,3 and the formal answer most often made became 'Not guilty’ instead of the plea of naifty.4 In the end the claiming as a villein was reduced to a mere insult in the King’s Bench. By the middle of the century generalised insults like ‘Thou art a villein knave’5 or ‘Thou art a villein whoreson, a whoreson villein’6 appear on the rolls, without inclusion of any of the old trespassory elements or even any suggestion that a serious claim of villeinage had been intended. By that time the remedy for defamation had reached a point where the imputations of villeinage could seem like just one more variety of actionable words. The older trespassory language, which was thought to be necessary as long as there was doubt about the new remedy and which still might be put in if the facts warranted, could be left out of the declaration without risk. Defamation had swallowed the older plea. Something like this same process occurred with the other precedents, although many continued to exist as separate actions or as special kinds of defamation. For example, the publication of false deeds or muniments in order to impair a person’s title to freehold land was broadened to encompass the oral declaration of words which threatened the person’s title to land. Imputations of bastardy provide the most frequent example found on the rolls.7 Ultimately, the sub-category of defamation called slander of title issued from this development. The history of the tort of malicious prosecution appears not to have been greatly different. For a time, there was an approximation in the pleading found in defamation cases and in cases brought for conspiracy to indict. Pleaders could combine elements of both in a declaration, and no doubt they might think to improve their plea thereby.8 But a necessary connection never existed, and 1 See, e.g., Owughan v. Baker, below, no. 61. 2 Vernycombe v. Fawell (1519), CP 40/1024, m. 352. Boriiyop v. Danhy and Hunt ( 1528). K B 27/1067. m. 30d: 'Thow art a choryll and thy poddyng in thy belly be nott thy owen.’ 4 Idem; Nicoll v. Prioress of Rasper and Wright (1528), CP 40/1060, m. 345. 5 Lee v. Porter (1556). KB 27/1179, m. 159. h Frankysshe v. Duncombe (1554), CP 40/1157, m. 383d. 1 The development is most clearly signalled by the increasing omission of the Statute 1 Hen. V, c. 3 from the declaration. The plaintiff then began simply by setting out his good title and the defendant's intent to deprive him of it by imputing bastardy to him. E.g., Pulham v. Pulham (1523), KB 27/1048, m. 30, an early example to which the defendant demurred. The court took advisement until Easter term 1524, no judgment being recorded. 8 The approximation can be seen in the addition of the plaintiff's good name and fame to the declaration in conspiracy cases, in the use of the English words spoken, and in the inclusion of allegations of damage to the plaintiff's reputation and status, the indictment and acquittal still being pleaded; e.g., Brewster v. Knyght (1544), CP 40/1120 m. 411.

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ultimately the action of malicious prosecution emerged as a separate tort. Scandalum magnatum was also largely eclipsed by the rise of the newer action; peers incorporated their status as magnates into the part of the declaration which alleged their good name and reputation.1 Bringing the older action did not become impossible. Its statutory origin, its inclusion in books of entries, and its usefulness where the words uttered imputed no felony ensured its separate existence. But for most cases involving great men, the ordinary action on the case for words sufficed. Defamation in the royal courts, at least as seen from the vantage point of the plea rolls, did not therefore grow out of the existing common-law precedents in any organic sense. From time to time lawyers seized upon elements found in them as they drew up their pleadings. This habit was particularly prevalent during the early years when the actionability of slanderous words was in doubt. But defamation had a separate form and existence on the rolls right from the start. The occasional congruence between the older precedents and pleading in defamation declarations shows lawyers at work. They tried, where they could, to emphasise the elements of similarity. But there was no necessary progression or organic growth from the old precedents to the new remedy. Earliest Entries o f Defamation Actions The first defamation entry found on the rolls, Owughan v. Baker, comes from Court of Common Pleas, from the Trinity term of 1507.2 Earlier attempts to secure a remedy for simple defamation may well be found among the writ files, but probably this date of inception is not far wrong. Owughan v. Baker must have been copied, in large part, from an ecclesiastical formulary, and the earliest entry found on the King's Bench rolls, from two terms later in Hilary 1508, follows the same ecclesiastical form.3 The plaintiff’s declaration set out his reputation apud bonos et graves just as it would have been done in a causa difjamationis. The alleged imputation of a crime, the speaking and publication of the words, and the injury in status and name were all set out just as they would have been in an ecclesiastical proceeding. Only the money damages and a (generalised) loss in trade were added. To the extent there was a precedent for this case, one must look to an ecclesiastical source, except in that part of the claim which dealt with damages. Perhaps, however, it is wrong to speak of Owughan v. Baker as a ‘case’ at all. The plea did not reach issue; the defendant made no appearance. Still less was there a judgment by the Bench. The entry looks like an experiment, and not a very successful experiment at that. Nothing happened. One can only wonder at what advantage was to be gained by bringing this, and the other early defamation pleas found on the rolls.4 They never proceeded to judgment, and 1 See Baker, SS Vol. 94. at 244-45. 2 See below, no. 61. •' Sparow v. Heygrene, below, no. 62. 4 The first defamation action proceeding beyond imparlance found for the Court of Common Pleas is Esthroke v. Crabhe (1518), CP 40/1022, m. 412. No doubt there are earlier examples on unexplored rolls, but a search through seven of them has produced none (CP 40/983, 985, 989, 995, 996, 997, 1000).

INTRODUCTION

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seldom reached even the stage of imparlance. Pleaders clearly had the ability to enter onto the rolls declarations that looked very much like the causes for imputation of a secular crime formerly actionable in an ecclesiastical court. What immediate good this did them or their clients we cannot easily discover. In the years following the first entries, growth of the action on the case for words moved ahead at a dead slow. The plea rolls for the years immediately after 1507 contain few defamation entries. Often a term’s worth of parchment produces none at all.1The first recorded judgment, entered after a default in the King’s Bench, did not come until ten years later in 1517,12 and it was another ten years after that before the earliest judgment found on the Common Pleas rolls.3 The vastness of the rolls of the Common Pleas and the impossibility of searching all of them make it likely that there had been a judgment before 1527, but there was no rush of successful actions in either court. There was uncertainty, or reluctance to move ahead. Contemporary reports took no apparent notice of these developments,4 and it would evidently be wrong to speak of the action on the case for words as if it were a generally accepted part of royal jurisdiction at any time during the first third of the century. The character of the earliest cases in which judgment was entered on the rolls show something of the reluctance which must have been felt about acceptance of defamation in the royal courts. All of them contained one or more of the factual elements found in the actions discussed above as possible antecedents of defamation. It must have been the substantive similarity with previously accepted precedents which encouraged the judges to venture to judgment. For instance, in the first such contested case from King’s Bench, there were three defendants; together they had accused the plaintiff of a common-law crime, and the plaintiff’s goods and chattels had been seized by a court officer as a result.5 In substance, the plaintiff could almost allege a conspiracy to indict. However, he could not quite do so. He had not actually been indicted. But the case was close, and no great leap from an accepted action was required to allow this one. The other defamation judgments fall roughly into the same category. Claims of slander in which the plaintiff could allege false imprisonment or threats of assault came close to long established trespass claims.6 Cases in which the plaintiff was a justice of the peace and receiver of the queen’s revenues, or at least notionally a court officer, could reasonably be thought to resemble Scandalum magnatum or contempt of court.7 These werethe cases which produced verdicts and judgments in the King’s Bench before1530. The three 1 F..g.. the Common Pleas roll for Michaelmas term, 1509 (CP 40/989) produces five villeinage claims, but none involving pure defamation. 1 Woode v. Frogge, KB 27/1022, m. 67. 3 Branstell v. T\go (1527), CP 40/1054, m. 357; the judgment was quashed on writ of error in the King's Bench; KB 27/1069, m. 101 (1528). (See SS Vol. 93, at 14.) 4 See SS Vol. 94, at 238. 5 Lyncoln v. Hendy et al., below, no. 64. h Pakeman v. Curson (1520), KB 27/1034, m. 15 (verdict but no judgment); Hankyn v. Lyncoln, below, no. 68; Cole v. Borrowdale (1527), KB 27/1062, m. 17. 7 Rudhale v. Whityngton (1528), KB 27/1067, m. 37d; Woode v. Frogge (1517), KB 27/1022, m. 67.

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cases with judgments found on the rolls of the Common Pleas for the same period also suggest hesitation: one was in substance a villeinage case1 one was brought by a lawyer,2 the other alleged false imprisonment as well as defamation.3 Although it is conceivable that unexplored records of the Common Bench may produce cases to upset this conclusion, unless that court was greatly in advance of the King’s Bench, acceptance of defamation as a common law action must have been well-nigh imperceptible to contemporaries. For the first twenty-three years after entry of the first claim, actions on the case for words were not successful except where the record shows that ‘additional factors’ were present. In this sense, the possible precedents discussed earlier played a role in smoothing the path of defamation in the royal courts. Although most entries on the rolls were products of innovation or seemingly inspired by the ecclesiastical remedy, at first the royal courts gave actual judgment only when the facts made the claim seem close to an accepted remedy. The judges must have been hesitant about the consequences of bringing defamation into the king’s courts right from the start. Several demurrers by defendants, left undetermined through many terms in the 1520s, also suggest hesitation and uncertainty.4 The famous case of Richard Hunne, who sued for imputation of heresy in 1513, is only the most famous of several unresolved actions on the rolls.5 Perhaps the resulting slow progress also explains the failure of the reports to take much notice of the change. Few actions were brought in all, fewer came to issue, and the occasional plea which resulted in a verdict and judgment could be analogised so closely to an existing action that its success was no cause for surprise. If any decade marked the acceptance of the new action, it was the 1530s. The reporters began to take note of the development in several cases.6 And the plea rolls show an increase both in the number of defamation pleas brought and in the number of verdicts and judgments rendered. Dr Baker has shown the growth for the King’s Bench rolls: from an average of four or five per year to an average of fifteen to twenty.7 The actions pleaded to issue in the Common Pleas also increased at the same time. The roll for Hilary term 1529 has only one case pleaded to issue, and that was for imputation of villeinage.8 The role for the same term in 1538, however, produces five cases pleaded to issue, four of which 1 Vernycombe v. Fawell, below, no. 66. : Arscott v. Escott (1528), CP 40/1059, m. 277. 3 Bramtell v. 7Vg« (1527), CP 40/1054, m. 357, quashed by writ of error in (1528) KB 27/1069, m. 101.

4 Hertrop v. Rylcmd (1521), KB 27/1038, m. 66; Pakeman v. Curson (1520), KB 27/1034, m. 15; Pulham v. Pulman (1523). KB 27/1048, m. 30; Turpyn v. Clarke et al. (1527), KB 27/1064, m. 61. 5 Hunne v. Marshall (1513), KB 27/1006, m. 36; there are several recent treatments of this cause celebre. See S. F. C. Milsom, ‘Richard Hunne’s Praemunire’ (1961) 76 English Historical Rev. 80; Richard J. Schoeck, ‘Common Law and Canon Law in the Writings of Thomas More: the Affair of Richard Hunne' in Proceedings oj the Third International Congress o f Medieval Canon Law, ed. Stephan Kuttner (1971), 237-54; Richard Wunderli, ‘Pre-Reformation London Summoners and the Murder of Richard Hunne' (1982) 33 Journal o f Ecclesiastical History 209. h See, e.g.. Legal v. Bull (K.B. 1533), 1 Spelman's Reports, s.v. Accion sur le case, pi. 6 (SS Vol. 93, at 6); Anon. (1536), Lib. Congress, Gell MS. 15, f. 12 (theft of sheep imputed); Y.B. Pas. 27 Hen. VIII, f. 11, pi. 27 (1535). 7 SS Vol. 94, at 242. 8 CP 40/1060. m. 345; no lying in wait was pleaded.

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involved imputation of theft.1 The most marked change found on the rolls sampled was that which occurred in the next decade. The contrast between Trinity term of 1536 and Trinity term of 1546, for instance, is striking and representative. The former produced six cases pleaded to issue,2 the latter seventeen.3 The numbers were not large in absolute terms, even in the 1530s and 1540s. But they were enough to make a ripple.4 Probably more important for the future, it was during this period that judgment began to be entered in cases of simple defamation, that is cases which lacked the ‘additional’ elements which permitted the analogy which accepted precedent.5 The turmoil and innovative changes surrounding the years of the Henrician Reformation may well have encouraged a bolder assertion of secular jurisdiction than had seemed possible before. Even with those religious changes, and despite the precedents of the simple defamation cases decided in the 1530s, however, there was no sudden or dramatic growth in numbers. The roll for Hilary term 1550 in the Common Pleas contains only five cases pleaded to issue ;6 the same roll for the first year of Mary’s reign has only eight.7 In the King’s Bench, the Hilary term roll of 1550 has only four entries which proceeded past imparlance;8 the same roll for 1556 has fourteen.9 Compared with the numbers of trespass and debt actions on the rolls, or even with number of assumpsit cases brought in King’s Bench, defamation was not a considerable part of the judicial business in the royal courts even by the middle of the century. We know too little, of course, of the principles by which cases came to be entered on the rolls to be absolutely confident in this conclusion. There may have been many cases which were not entered. Nevertheless, the story fits the other evidence very well. The paucity of reported slander cases from the early period, even among those collections still in manuscript, and the failure of the development to attract any considerable amount of contemporary attention, both accord closely with the evidence of the plea rolls. It was a slow expansion, almost an imperceptible one.I. III. LEGAL ASPECTS OF THE EARLIEST CASES

Along with the slow growth in numbers went uncertainty about the substantive law of defamation in the royal courts. The fifty years after the 1 CP 40/1096, mm. 149, 323, 340 (judgment), 402, 504d. : CP 40/1090, mm. 113, 119, 155, 225d, 353d, 588. 3 CP 40/1129. mm. 109, 117, 124 (judgment), 133, 137, 140, 152, 159, 315, 325, 326, 330d, 337, 397d, 398, 407, 426. 4 See Legat v. Bull( K.B. 1533), a writ of error from the ancient demesne manor of Havering-atteBower, 1 Spelman's Reports s.v. Action sur le case, pi. 6 (SS Vol. 93, at 6); Russell’s Case (K.B. 1537), Dyer 26b. 5 Maunder v. Ware(\ 535), C’P 40/1083, m. 409d; Fawnte v. W/e.«'/ev(1535), CP 40/1086, m. 562d; Caundish v. Mery (1536), K B 27/1095, m. 40; Marten v. Lucas (1537), K B 27/1099, m. 69d. Dr Baker has noted the presence of four King's Bench judgments on the roll for Michaelmas term 1538: SS Vol. 94, at 242, note 5. h CP 40/1143. mm. 309, 389. 413, 449, 562. 7 CP 40/1157, mm. 52d. 278. 320d, 326, 456d (judgment), 5 15d (judgment), 530, 564. * KB 27/1153, mm. 20, 64 (judgment). 79 (verdict). 104 (judgment). KB 27/1177. mm. 55, 82 (judgment), 86, 102 (judgment), 103, 105, 122, 132, 153 (judgment), 158. 166. 169. 185, 191.

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introduction of the first cases were times of experiment and testing. Although the early declarations in effect copied much from ecclesiastical precedents, the rolls suggest that in some ways the existence of the ecclesiastical remedy actually complicated the growth of the new action, because of a widely held notion that the rationale behind the royal court remedy ought to be distinguishable from the ecclesiastical. For instance, early pleaders almost never used any form of the word diffamatio. They must have thought of it as a specifically ecclesiastical term, one to be avoided in secular cases.1They also sometimes placed emphasis on the temporal harm which had befallen their clients to avoid making the royal court remedy look like too exact a copy of the ecclesiastical. The earliest cases with judgments, all of which involved more than simple defamation, also suggest a widely held sentiment that there should be no total correspondence. It may be that the slow rise in the numbers found on the rolls reflects a lingering feeling that defamation ought to be a spiritual matter unless something more than ‘mere wind’ were involved.12 Reluctance to become involved in spiritual matters was not, of course, the only force at work. The forces pulling the other way were stronger. Elimination of the Church’s jurisdiction over imputations of secular crimes had left men without a remedy at law. The old Natura Brevium, published in 1528, and Rastell’s edition published in 1534 both noted the possibility of actions being brought in the royal courts for imputations of secular crimes.3 The possibility of recovering money judgments for slander opened up by these precedents, spurred perhaps by the oft-remarked ‘litigiousness’ of the Tudor era, pulled in the opposite direction, towards expansion of royal court jurisdiction. In the end expansion did take place. During the latter half of the century the remedy became a staple part of royal court jurisdiction. But the study of the plea rolls shows, above all, how much hesitation there was at first about allowing the action as a regular part of secular jurisdiction and how much room there was for experiment with the scope of the action. Actionable Words The ecclesiastical origins of common law defamation are shown most clearly in the adoption of a standard which normally required that a crime have been imputed to give rise to a secular cause of action. Discussion in the earliest reported cases revolved around whether a crime punishable by the secular courts had been involved,4 and virtually all the entries found on the rolls were cases of imputation of common law crimes. As Dr Baker has shown for the 1 Exceptions can of course be found for this, and other, characterisations of the early pleading; for example, the extravagant example in Clerk v. Langley (1556), KB 27/1178, m. 39: ‘aliorum falsorum dififamatoriosissimorum anglicanorum verborum’. The use of the term also became more frequent towards the middle of the century. 2 See also an undated Chancery case relying on a decree of Cardinal Wolsey that defamation should continue as an ecclesiastical, not a secular, matter: PRO, C 1/577/43. The essential part of the decree is given in Baker SS Vol. 94, at 239. 3 See Baker, SS Vol. 94, at 239, n. 4. 4 E.g., Y.B. Trin. 27 Hen. VIII, f. 22, pi. 17 (1535).

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King’s Bench, imputations of theft were by far the most frequent subject of the early cases.1 Examination of the rolls of the Common Pleas records reveals a similar picture. Of the 43 entries on the Trinity term roll for 1534, for example, fully 36 concern imputations of theft.12 On the same roll for 1539, 35 of the 45 entries contain allegations of theft; no other sort of imputation produces more than two examples.3 It is also noteworthy how often the entries include the imputation of an actual criminal act. ‘Thou art a strong thief, and hast feloniously stollen an ox of John Bowles’4 is a much more common sort of imputation found on the rolls than the sort which accused a plaintiff simply of general thievery. The ecclesiastical remedy had begun by requiring imputation of an actual crime,5 and practice in the Church courts placed emphasis on specific accusations even after more generalised imputations of crime became subjects of defamation causes.6 The earliest cases with judgments on the royal court rolls also involved imputations of actual crimes, and it remained the practice of pleaders to be as specific as they could. Sometimes the words entered on the rolls were so specifically set out that one doubts whether they were in fact spoken aloud. The rolls contain words, allegedly said at the top of the defendant’s voice, which not only accused the plaintiff of a specific crime, but also did not omit to describe the precise value of the goods stolen, the place and date of the theft, carefully adding the words ‘feloniously’ and ‘against the king’s peace’.7 They were the words of a formal indictment, not those of an angry man or woman. Such entries are the sign of a preference for specific language. Although the common law early resolved against requiring that an actual crime have been named,8 pleaders long included enough of the words said to show that an actual crime had been imputed whenever they could. Despite their predominance, common-law crimes were not the exclusive subject of the early entries. Imputations of spiritual crimes and even of activity of doubtful criminality are found on the early rolls. Probably they can best be explained by uncertainty about the substantive scope of the remedy and by a willingness to experiment based on ecclesiastical models. It was after all uncertain at the time how far the attack on the Church’s jurisdiction would go.9 1 SS Vol. 94. at 243. 2 Taken from CP 40/1082. 3 Taken from CP 40/1102. The other cases involved imputations of perjury (1); murder (2); forgery (1); deceit (1); naifty (1); ‘whore’ (1); ‘poller’ (1); bastardy (1); and ‘crafty knave’ (1). The same case sometimes includes more than one imputation. 4 Gorges v. Arthur (1534), CP 40/1082, m. 229. 5 See above, p. xxvii. 6 See above, p. xlvi. 7 Kyng v. Maye (1535), CP 40/1086, m. 533: ‘publice et expresse dixit nominavit et notificavit per hec verba Thomas Kyng of Bury Saynt Edmond in the countie of Suff’ yoman and one Robert jermyn of Felsham in the same countie gentilman with force and armes the second daye of June last past at Elveden in the countie aforesaid in the kyngis high waye there made assaute upon the said Johan and then and there hym bete and yel intretid and three poundes and xvi pens in money nombred of the goods and catalls of the said John oute of the purse of the same John and from the person of the said John Maye then and there felyonousely toke and bare away against the kyngis peace.' This is an extreme example; most entries specify enough about the theft to show simply that an actual crime had been involved. 8 Infra p. lxxxviii; see also Baker, SS Vol. 94, at 243, for contemporary opinion that a particular offence should be specified. 9 See Baker, SS Vol. 94, at 64-70.

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Thus one finds words like ‘common fornicator’1 ‘bawdy knave’12 or ‘whoremaster’3 the subject of entries on the rolls, all without allegation of any particular harm incurred. In virtually none of these cases was a judgment rendered. If they were experiments aimed at giving the remedy an expansive scope, beyond imputations of secular crimes, they were unsuccessful experiments. A few of these early cases posed nice questions of law, some of which would be the subject of extended doubt and eventual fine distinction. Imputations of heresy or witchcraft, not frequent but by no means unique entries on the early rolls, furnish an example. They would have raised troubling matter in any event. Both were ecclesiastical offences in a primary sense, but both could entail punishment by a secular court. There was bound to be doubt about which side of the jurisdictional line they fell on. As Fitzherbert J. remarked in 1536, some matters ‘are mixed and punishable in both laws’.4 The judgment given for the plaintiff in the King’s Bench in 1536 upon an imputation that the plaintiff and another man upon a feast day ‘did break their fast like heretics’ could not have seemed unreasonable.5 Pleaders in these early years always sought to describe the words said as crimes if they could. One finds reference, for instance, to the ‘crimen nativi’,6 and to the uncertain ‘crimen deceptionis’7or ‘crimen malefactoris’,8 and even to the dubious ‘crimen squalitatis’.9 In other words, the early entries cover a considerable range of words, though pleaders sought to stress the criminal aspect of what had been imputed. The vast majority of words contained allegations of crimes indictable at common law, and virtually all the cases with judgments entered on the plea rolls did so. However, the rolls do not show that the action began with the establishment of a strict category of actionable words. There was evident uncertainty or desire to experiment, to seek recovery in doubtful cases, right from the start. There was probably also disagreement 1 Kebyllv. Smyth (1535), CP 40/1082, m. 514 (op. se entry); the words (communisfornicatrix) were not given in English. 2 Stansby v. Holton (1542), KB 27/1125, m. 22: ‘Stevyn Stansby ys a bawdy knave and kepyth a hore in hys house one Robert Bruers wyffe.’ Issue was joined, but no verdict is recorded on the roll. 3 Paynter v. Clerke & Dotie (1540), KB 27/1115, m. 2 (li. lo.): ‘Thou art a horemaster & uppon Christmas mornyng thu dydest crepe in to Thomas Tye wyf bed.' Another interesting case in which the offence imputed was clearly sexual immortality and seemingly subject only to the Church’s jurisdiction is Asshe v. Wyer (1537), KB 27/1103, m. 32: ‘Asshes wyff ys a strong hoore and all the town off Wendover and the cuntrey spekyth shame off her and John Hyll.’ Issue was joined, but no verdict recorded. Unease about actionability must have been felt here, for the plaintiff’s declaration alleged that the couple's children could not secure advantageous marriages as a result of the imputation, although without mentioning any specific marriage lost. 4 Y.B. Trin. 27 Hen. VIII, f. 14, pi. 4 (1535). 5 Howard v. Pynnes, KB 27/1 105, m. 11: see also Elyot v. Mersshe (1535), CP 40/1086 m. 192d (op. se); Stower v. Wyssher (1546), CP 40/1129. m. 370 (op. se). h Bocher v. Morcombe (1536), CP 40/1090, m. 587d. 7 Trengowe v. Penhelak (1535), KB 27/1096, m. 16. 8 Phelyppes v. Croke (1529), CP 40/1060, m. 227. The words given (in Latin) in the declaration alleged concealment of customs revenues and of subsidy pavments owed to the King. q Combes v. Henbery (1536). KB 27/1100, m. 8d. Dale v. Noyes (1531), KB 27/1083. m. 23, contains the interesting attempt to make it actionable to call someone a common scold by inventing the ‘crimen communis perturbatoris vexatoris et inquietatoris vicinorum suorum.’ Because common scolds were frequently punished in local, and even ecclesiastical courts, this need not have seemed a frivolous case at the time.

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among the contemporary lawyers about the proper scope of the remedy. The reports, which begin to be more abundant after the middle of the century, show that the justices themselves were sometimes at odds over the scope of royal court jurisdiction over slander. In the climate of uncertainty of the years surrounding the Henrician Reformation, when attacks on the jurisdiction of the Church were heard in many quarters, it was as natural that uncertainty and disagreement should have existed on this relatively minor and legal question, as it was on great matters of state. Special Damage and Injury to Professional Reputation In the developed form reached by the time John March compiled the first English treatise on the subject in 1647, defamation encompassed words which slandered a man in his profession, trade or calling even though they imputed no crime. Slander also covered words which had caused measurable loss even though the offence imputed had been purely ecclesiastical.1 Temporal loss thus provided a special basis for jurisdiction. There are entries on the early plea rolls which suggest that these developed doctrines were present in the first years of the appearance of actions on the case for words. Holdsworth went so far as to say that temporal loss was the gist of the action for slander as soon as it emerged in the royal courts.12 Detailed examination of the plea rolls suggests a different explanation. Neither language imputing professional unfitness nor language imputing a spiritual crime which had caused actual damage would ordinarily support an action on the case for words during the sixteenth century. Pleading practice in the first half the century did sometimes emphasise temporal loss and it did sometimes set out the plaintiff’s office or trade at some length. Both would be elements of the developed doctrines, and there seems to have been some movement, expressed in the early reports, in the direct of making more of them than the common assumptions of pleaders would allow. But, for the most part, in the early years these forms of pleading were the products of lawyers who were anxious to omit nothing which might tell in their client’s favour, not an independent basis for liability. Generalised allegations of injury to trade and loss of business became formal elements of pleading, necessary in the sense that English actions often required the pleading of formal elements, and doubtless to be considered in the size of damages awarded by the jury. But temporal loss had only that importance. The best demonstration of this conclusion is provided by later evidence. The pleading of special damage as a frequent part of an action on the case for words had declined markedly by the middle of the century. Of the 68 defamation entries on the Common Pleas roll for Trinity term of 1558, for instance, only five mentioned any loss which could be counted as ‘special damage’, and all of them also alleged imputation of a common law crime.3 In addition, there were 1 Actions for Slaunder (1647), 10-11. 2 W. Holdsworth. A History o f English Law, viii (1926), 346-47. ' Taken from CP 40 1175; all instances of ‘special’ damage pleaded occurred where theft had been imputed (mm. 877, 1043, 1044, I044d. 1112).

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reported decisions under Elizabeth which expressly and regularly denied recovery for special damages without imputation of a crime and which refused to extend the remedy to non-criminal slander touching a person’s profession or trade. These cases will be discussed in the next section.1 Careful reading of the early plea rolls also supports the conclusion. One indication is the inability of defendants to traverse the allegation of special damage. This was settled almost from the beginning of the remedy.2 Another indication is the almost haphazard way in which actual loss was pleaded on the rolls. Sometimes declarations mentioned specific damage. Sometimes they did not. It seerns to have made little difference what the offence imputed was, for cases clearly actionable sometimes included quite elaborate recitations of actual loss. Imputations of villeinage which included the old trespassory elements3 or accusations of felony4 were clearly actionable. However, declarations in such cases sometimes added detailed allegations of imprisonment, loss of a specific post, damage in particular kinds of trade, or loss of a particular marriage. Likewise, declarations in cases of dubious actionability, cases where special damage would be legally necessary in the seventeenth century, sometimes contained none at all. An action founded on a statement made to a woman that she had given birth to a child before she was married called, under later law, for specific allegation of loss.5 But the declaration found on the rolls in it,6 and like cases,7 alleged no more than loss to trade or business in the usual generalised form. In other words, early practice relating to the importance of special damages was not consistent. Later commentators noted that it was good practice to insert special loss in a declaration if the facts of the case would bear it, as a way of increasing damages.8 It may be that the simplest explanation - special damages were inserted if they existed - is also the correct explanation. The exact connection between pleading special damage and increasing the measure of damages cannot readily be discerned, but a reasonable explanation may be that parts of the declaration were read to the jurors, and that this provided a means of calling the actual loss suffered by the plaintiff to their minds. Pleading of actual loss in the early cases suggests that this possible advantage, together with a desire to make the case look as ‘secular’ as possible, provided the impetus for 1 See below, pp. lxxxix-xci. 2 Russell's 1537), Dyer 26b; see also the authorities cited by Baker, SS Vol. 94, at 240. 3 Wybert v. Richardson (1521), KB 27/1042, m. 63 (villeinage case with loss of profits in agriculture pleaded); Walter v. Love (1530), CP 40/1064, m. 516d (villeinage imputation with loss of marriage). 4 E.g., Hankyn v. Lyncoln, below, no. 68; Maunder v. Ware, below, no. 67; Andrewe v. Benyngton (1535), KB 27/1094, m. 33 (theft imputation and loss of employment by his master George Zouche); Edgyng v. Kemyngys (1518), CP 40/1022, m. 762 (theft imputation and imprisonment of two weeks). 5 Davis v. Gardiner (C.P. 1593). 4 Co. Rep. 16b. h Bryghtmann v. Crykdorte (1544), KB 27/1131, m. 127; the plaintiff alleged loss of status and company among neighbours and inability to carry on her negotia. No judgment appears on the roll. " Examples from the Common Pleas: Hunt v. Wyngrave (1545), CP 40/1120, m. 624 (bastardy); Hangar v. Yeo (1546), CP 40/1129, m. 109 (bastardy); Yeo v. Hangar (1546), CP 40/1129, m. 591 d (whore); Svmpson v. Lv//|'(l550), C P40/1143, m. 155d(whore). 8 March, Actionsfor Slaunder (1647). 97.

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the cases in which pleaders emphasised temporal harm. It is also important that the first cases in which the judges ventured to give judgment occurred where there had been measurable loss in addition to the imputation of a crime.1 But these precedents were not the basis for a rule of practice allowing recovery on the ground of temporal damage alone, and pleading practice was too erratic to allow for the conclusion that temporal loss ever was the gist of the action. Pleading of the plaintiff’s office or profession was likewise inconsistent on the rolls of the early period. They suggest that plaintiffs emphasised their office for what worth this fact might have in increasing damages, not because an office or trade furnished an independent ground of recovery. Contemporary thought held that a person’s status helped determine the extent of compensable harm, and this may have encouraged pleaders to include it. Thus there were cases in which the words were clearly actionable and the declaration laid stress on the office held by the plaintiff. An action from 1540 in which the imputation had been of treason and the plaintiff had allegedly been kept in irons for a time, but in which the declaration also added that he had been secretary to the earl of Surrey, is a not untypical example.12 On the other hand, there were cases in which laying stress on the plaintiff’s occupation would have been appropriate, but in which it was not done. Imputations of corruption or bankruptcy, without mention in the declaration of the office or trade of the plaintiff, provide the clearest example.3 At a later date, plaintiffs were required to declare on their office when the offence imputed was bribery or bankruptcy. But that was clearly not the invariable practice from the start. It is probably fair to say that pleaders more often stressed the plaintiff’s status when the words were of doubtful actionability.4 It is also true that there were a few early cases involving court officials and lawyers where recovery was allowed even though it requires a considerable stretch to see any crime in the words spoken.5 But lawyers made an exceptional case. They did not provide a rule other men could regularly take advantage of, and for the most part during the sixteenth century there was no independent basis for liability built on words which touched a man in this trade 1 See above, p. lxxiii. 2 Hartylpole v. Darcy (1540), KB 27/1115, m. 79d: ‘in vinculis et cathenis ferreis in prisona predicta . . . remansit.' 3 Chyvarton v. Talbaron (1534), CP 40/1082, m. 304d: ‘That the sayd Richard was a bribar and a common poller of the kynges liege peple.' Russell v. Ray (1531), KB 27/1079, m. 12: ‘Robert Russell ys reden to London to sewe for a proteccion to desceyve his cretytours.’ 4 E.g., Folyott v. Pell( 1520), CP 40/1030, m. 11: ‘crimen extorsioniset oppressionis’, the plaintiff declaring on his office as bailiff of the earl of Surrey at Ruskington. Gressham v. Brydgys (1542), KB 27/1123, m. 112: ‘You ar a poller and an extorcyoner and the contry (comitatum Suff' innuendo) ys worse by a thousand pound by you and this I wyll prove,’ the plaintiff declaring on his office as one of sheriffs of London. 5 Doubtful cases with judgments entered in favour of lawyers: Arscott v. Escott (1528), CP 40/1059, m. 277: “I warrant that John Arscott der not com noo more to London for he is clerely discharged of pledyng in my mater and all other maters in the lawe for he hath bought and sold me in my mater.' Draycott v. Goodale (1538), CP 40/1096, m. 340: ‘By the intysement crafty and subtyll means of oon Thomas Wynynton and also for the some of twenty markes to hym and Sir Phylyp Draycot contented and paid the seid Roger Goodale ys expulsyd from hys tenement contrary to all right and good conscyens.' Rudhale v. Whityngton (1528), KB 27/1067, m. 37d: ‘John Rudhale of Eversham is a usurer’.

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or occupation. As with the ecclesiastical remedy, these were imputations of what Lyndwood had called ‘defects’. They remained outside the normal coverage of the law of defamation until after the turn of the next century. Early Pleading Practice Uncertainty attended early pleading practice in something like the same measure it did several aspects of the substantive law of defamation in the royal courts. Nevertheless, the plea rolls show the gradual development of shared assumptions about how declarations and answers should be framed in actions on the case for words. Although this development was not marked by invariably fixed forms or by steady progress towards an ideal, there was real movement towards settlement of basic pleading habits. By the 1560s, there were enough settled principles for a pleader to feel reasonable confidence that he need not experiment unless his case forced him to it. The movement towards more settled form appears in what may seem to be mere details. Must the plaintiff’s declaration contain the actual words used? Early practice varied. The earlier villeinage cases did not contain the words, and they were not required in actions founded on Scandalum magnatum. Nor did ecclesiastical practice normally include them in canonical libels or positions, although it made the slanderous words a prominent feature of the depositions of witnesses. Perhaps it was natural, therefore, that the first examples in the royal courts should not have included the English words spoken. The earliest entries simply declared that the defendant ‘crimen imponebat’, language identical to that used in ecclesiastical practice.1 Where the pleader wished to add detail about the crime imputed, he spelled this out in Latin.12 The first example found with inclusion of the allegedly defamatory words in English appears in 1511 in the King’s Bench.3 In the following years, pleaders apparently had their choice. Sometimes they put the words in. Sometimes they left them out. Inclusion generally came to predominate over the next twenty years, and although it is possible to find occasional pleas without the English words as late as 1540,4 inclusion was all but invariable by that time. The ecclesiastical phrase ‘crimen imponebat’ itself disappeared from declarations. No early test case on this question has so far been found; no case in which a defendant demurred to a plea which did not contain the words.5 Perhaps there was none. It never in fact became legally necessary that the plea contain the 1 See e.g., Owughan v. Baker, below, no. 61. 2 E.g.. Pyrte v. Ratclyjj et al. (1518), CP 40/1022, m. 229d: ‘ac ipsum Johanem Pyne felonice fecisse et sexaginta solidos de bonis et catallis cuiusdam Michaelis Ratclyflf de Aystheclyft in comitatu predicto felonice capi fecisse et ibidem publice dixerunt . . .'. 3 Asplyti v. Fox (1511), KB 27/999, m. 73d; the first example found by the editor for the Common Pleas is Hoo v. Wright (1518), CP 40/1022, m. 459d, but no doubt there are earlier examples on unexplored rolls. 4 E.g., Danyell v. Hovgge (1538), CP 40/1096, m. 439; Fuller v. Lambe (1540), KB 27/1116, m. 17. 5 The necessity for certainty in the words was, however, raised in a writ of error in Elizabeth’s reign; Wytton v. Blunte (1585), KB 27/1294, m. 414. The objection was to declaring that the defendant had said ‘verba quorum tenor sequitur' which (the defendant argued) rendered the declaration invalid for uncertainty. No judgment remains.

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ipsissima verba used by the defendant.1 Sometimes pleaders, with seeming carelessness, included the word ‘that’ as part of the declaration, so that it read: [the defendant] ‘dixit hec verba anglicana sequencia videlicet that he [the plaintiff] stole two of his sheep.’12 But the entry of some English words became almost invariable practice. It is logical to think that the utility of including the words for consideration by the jury and the importance of the words injudicial determination of whether or not a crime had actually been imputed, together determined common practice. By mid-century that practice became so standard that it was seemingly unthinkable to omit the English words from a declaration.3 Other aspects of pleading underwent the same sort of settling over the course of the early years. The precise form of the general denial,4 the introduction and standardisation of the innuendo form used along with the allegedly slanderous words in order to show the person named,5 and the correct way of pleading truth in justification,6 are all salient examples found on the rolls. Each moved to general uniformity. For some of these developments, reported cases exist. The rule that a plea in justification must fully allege the commission of the crime imputed, for example, is found explicitly stated in early manuscript reports. It was tested by demurrer where the defendant had attempted to justify an imputation of perjury by alleging what may have amounted only to a false statement; it brought forth the objection that, ‘he must prove by matter or record or by matter apparent that he is guilty of perjury, or otherwise [it] is no good justification.7 That stated the settled rule. In one aspect of pleading practice, however, little movement towards defined form occurred. That is in the parts of the plaintiff’s declarations which 1 Bridges v. H. W. (K B. 1553). Dal. 9-10; the jury found that the exact words alleged had not been said, but judgment was entered for the plaintiff. Another report of the case, found in Dyer 75, records that there was ‘great argument and debate' on the point. Split verdicts, in which the exact words could not have been proved, because the jury found one imputation proved, the other not, are also found on the rolls. In such cases, judgment lor the plaintiff was entered for the first; for the second the defendant was allowed to go without day and the plaintiff suffered an amercement. E.g., Gray v. Derby (1552), CP 40/1151. m. 6: the jury found that the defendant had said ‘thou art a barratour' but was not guilty as to the saying of the rest: ‘Walter Grey thou art an untrue gentylman and a barrattur and I will not cease untylle I see thy confusion.’ : E.g.. Sachererell v. Wyllouhby (1540), KB 27/1115, m. 23d: the declaration is slightly simplified here. 3 All of the 73 defamation entries on CP 40/1120 (1544) have the words given in English. 4 Some of the early cases contain this answer or a variant: ‘quod ipsi non dixerunt retulerunt et propalaverunt aliqua talia verba modo et forma’ instead of the ‘in nullo est inde culpabilis'. Thurlok v. Doyle . erunt quod uthesium est quidam terror patrie cujus emende pertinent ad dominum regem seu ad alios magnates qui hujusmodi emendas capiunt in feodis suis et quod ipsi amerciati fuerunt propter illud uthesium in turno domini comitis per quod dicunt quod dictus Willelmus nullas emendas debet recuperare de dicto uthesio et inde petunt judicium. Et ad dictum doleum vini dicunt quod

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27th year of the reign of King Edward, attacked him with shameful words in the meadow of the town of King's Ripton, calling him thief, house burner, deceiver [and] cuckold, and moreover raised the hue and cry against him to his dishonour whereby he was attached, through which he lost 20s. And it is found by the jury that the said Bartholomew is guilty in all particulars and the damages are taxed at one mark, for which let him make satisfaction to the same Ivo. And for the trespass in mercy 12d. Pledges of each Walter of Den and Thomas son of Simon. 42. AVICE v. ALDWINKLE M anor court of Brigstock, N ortham ptonshire, 22 February 1303.

Alice wife of Peter Avice offers herself against Isabelle of Aldwinkle in that the aforesaid Isabelle, in the 31st year of the reign of King Edward on the Wednesday next after the feast of the Purification came into her house before the first hour and cursed the aforesaid Alice and called her a thief and a whore to her damage half a mark, and in contempt of the bailiffs 5s. 4d., whereupon if she will confess this she will be fairly done to, but if on the other hand she denies she does so unjustly because she has sufficient suit. The suit, being called, replied orally. The aforesaid Isabelle so accused denies word for word all things imputed against her and puts forward an exception, because that house is not hers [Alice’s] but Peter Avice’s. And the exception was held good by the four scabini, and therefore the aforesaid Alice in mercy. By pledge Peter Avice. 43. WAKEFIELD v. BROWNSMITH M anor court of Wakefield, Yorkshire, 1306-08.

William of Wakefield offers himself against Thomas le Brownsmith and Emma wife of the same Thomas, that on the Friday next after the feast of St Matthew the Apostle in the 34th year of the reign of King [Edward I], father of the present king, they did come in the market of Wakefield and call the said William false, faithless and a plunderer and did raise the hue and cry against him, and [did] likewise in the four neighbouring vills, by which infamy and slander, when the said William had bought one tun of wine from Walter Gower for 40s. to be obtained the Friday following, the said Walter hearing the said infamy and slander about the said William would not deal with him or keep the agreement for the said tun of wine, by which the same William lost 20s. which he could have secured from the profit of the said wine. These things he did to him against the peace etc. to his damage 40s., and thereof he produced sufficient suit. And the said Thomas and Emma come and deny force etc. and say that the hue and cry is an alarm of the country the fines for which belong to the lord king or to other magnates who take these fines in their fees and that they were amerced because of that hue and cry in the tourn of the lord earl, wherefore they say that the said William should recover no fines from the said hue and cry and thereof they pray judgment. And as to the said tun of wine they say that no

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nulla conventio ei fracta fuit neque ullam amissionem predictorum xx s. per predictum huthesium recepit et hoc volunt facere contra ipsum et sectam suam. Et dictus Willelmus petit judicium de eis quasi indefensis pro eo quod nichil defendunt ad hoc quod imposuit eis in placito suo quod ipsi vocaverunt ipsum falsum infidelem et proditorem quod est principale querele sue nisi tantum ad uthesium et ad conventionem dicti dolei sibi fractam. Et dicti Thomas et Emma dicunt quod sufficienter defendunt ad omnia sibi imposita et inde petunt judicium. Et dictum judicium in respectum usque ad proximam curiam. [MD 225/1308, m. 1.] Judicium inter Willelmum de Wakefeld querentem et Thomam le Brounsmyth et Emmam uxorem ejus ita diffinitum est quod dictus Willelmus nichil capiat per querelam suam sed quod dicti Thomas et Emma eant quieti sine die et dictus Willelmus sit in misericordia xii d.

44. OTEWY v. DALLYNGE PRO SC 2/212/33, s.d. W ednesday feast of the Circumcision.

Adam Otewy queritur de Johanne Dallynge et Matillida uxore ejus quod die Dominica proximo post festum Sancti Jacobi anno regni regis nunc primo in villa de Bathele ispum Adam vilibus verbis affecerunt imponendo ei falsitatem vocando ipsum latronem et seductorem et ipsum nequiter defamarunt apud bonos et graves etc. propter quod ubi predictus Adam vendiderat cuidam Alexandra de Homerwater viginti quarteria frumenti et viginti quarteria ordei pro quibus predictus Alexander eidem Ade pecuniam solvisse debuit pre manibus idem Alexander ratione predicte diffamationis recusavit predictam marcandisam et ei non solvit ad dampnum ipsius Ade xl s. etc. Et predicti Johannes et Matilda veniunt et defendunt vim et injuriam etc. et dicunt quod in nullo sunt culpabiles et hoc petunt quod inquiratur. Et Adam quod sic etc. Ideo etc.

45.

CLERK v. ODE

W estminster Abbey M uniments 14545, s.d. Monday after feast of St Peter in Chains.

Misericordia ii d. Cecilia Ode summonita fuit ad respondendum Willelmo clerico de placito quod die Veneris proximo ante festum Pentecoste ultimo preteritum vocavit ipsum falsum etc. et dicit quod cervisia dicti Willelmi non fuit abilis etc. per quod dictus Willelmus amisit venditionem cervisie predicte etc. ad dampnum dicti Willelmi xl d. et inde producit sectam etc. Et dicta Cecilia venit et dicit quod non est inde culpabilis et hoc petit quod inquiratur. Inquisitio dicit quod culpabilis est. Ideo consideratum est quod dictus Willelmus recuperet dampna quatuor denariorum prout taxatur per inquisitionem. Et dicta Cecilia in misericordia. Plegius Johannes clericus.

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agreement was broken with him nor did he suffer any loss of the aforesaid 20s. by the aforesaid hue and cry, and this they wish to establish against him and his suit. And the said William prays judgment against them as undefended because they say nothing as to that which he imputed to them in his plea, that they called him false, faithless and a plunderer, which is the principal matter of his complaint, but only as to the hue and cry and the broken agreement of the said tun. And the said Thomas and Emma say that they have sufficiently denied all matters imputed to them and they pray judgment. And the said judgment in respite till the next court. [Two years later.] The judgment between William of Wakefield and Thomas le Brownsmith and Emma his wife is determined thus, that the said William should take nothing by his complaint, but that the said Thomas should go quit without day, and the said William in mercy 12d.

44. OTEWY v. DALLYNGE Court of the honour of Clare in Yorkshire, 1 January 1309.

Adam Otewy complains of John Dalling and Maud his wife that on the Sunday next after the feast of St James in the first year of the reign of the present king in the town of Batley they wronged Adam with abusive words imputing falseness to him by calling him a thief and a deceiver and they wickedly defamed him among good and substantial persons etc. by reason of which, whereas the aforesaid Adam had sold twenty quarters of wheat and twenty quarters of barley to a certain Alexander of Homerwater for which the aforesaid Alexander ought to have paid money in hand to the same Adam, the same Alexander, by reason of the aforesaid defamation, refused the aforesaid goods and did not pay him, to the damage of Adam 40s. etc. And the aforesaid John and Maud come and deny force and wrong etc. and say that they are in no way guilty, and of this they pray an inquest. And Adam that so etc. Therefore etc.

45. CLERK v. ODE M anor court of West Halton, Lincolnshire, 4 August 1315.

Amercement 2d. Cecilia Ode was summoned to answer William the Clerk in a plea that on the Friday next before the feast of Pentecost last she called him false etc. and said that the beer of the said William was not fit etc. by which the said William lost the sale of the aforesaid beer, to the damage of the said William 40d. And thereof he produces suit. And the said Cecilia comes and says that she is not guilty thereof and she prays an inquest. The inquest says that she is guilty. Therefore it is considered that the said William should recover damages of 4d. as taxed by the inquest. And the said Cecilia in mercy. Pledge John the Clerk.

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46. CHAPLAIN v. SHEPHERD University of Chicago Library, Bacon MS. 13, m. 8.

Galfridus Bercar’ atachiatus est ad respondendum Ricardo capellano capelle de Palgrave de placito transgressionis et unde queritur quod idem Galfridus die Veneris proximo post festum Sancti Martini anno regni regis viii maliciose procuravit dictum Ricardum inditari ad turnum vicecomitis tentum eodem die apud Finingham de eo quod sangwynem traxisse debuit de quodam etc. per quod idem Ricardus admerciatus fuit ad xl. d. quos vicecomes de eo levavit ad dampnum xx s. et inde producit sectam. Et predictus Galfridus defendit vim etc. quando etc. et dicit quod ex quo idem Ricardus non inponit sibi aliquid factum fecisse cum hec hatio [sic] sit personalis set tantum sibi inponit quod locutus fuit sibi videtur quod de vento sibi hactio conpetere non debet in hac parte et petit judicium. Et Ricardus similiter. Ideo ad judicium. Datus est dies partibus ad proximam curiam.

47. FITZ ROBERT v. GILLARDON PRO DL 30/85/1162, m. 18d.

Willelmus Gillardon attachiatus fuit ad respondendum Johanni filio Roberti de placito quare die Veneris proximo post festum Sancti Laurencii ultimo preteritum in villa de Swyneshewyd in quodam loco qui vocatur Lambkoteholm ipsi Johanni insultum fecit vocando ipsum furem et infidelem in omnibus factis suis et perjurium in omnibus placitis debitorum precipue in curia domini comitis Lancast’ apud Sutton versus Nicholaum filium Galfridi de Sutton et Simonem fratrem ejusdem Nicholai ad dampnum suum xl. s. etc. Willelmus venit et defendit etc. et dicit quod in nullo est culpabilis et hoc petit quod inquiratur et pars adversa similiter. Ideo veniat inquisitio. 48. SMITH v. NORMAN PRO DL 30/85/1162, mm. 17d, 20r.

Willelmus Norman attachiatus fuit ad respondendum Ricardo filio Simonis Faber de placito quare die Mercurii proximo ante festum Annunciationis Beate Marie anno regni regis undecimo ipsum defamavit in villa de Sutton ita quod predictus Ricardus amisit credulitatem xx s. de quodam Johanne Cade a predicto die usque ad festum Sancti Michaelis proximo sequens quos eidem Ricardo mutuare debuisset et non mutuavit unde dampnum habuit et deterioratus est ad valenciam xl. s. etc. Willelmus venit et defendit etc. et dicit quod non ipsum defamavit sicut ei imponit et hoc petit quod inquiratur et pars adversa similiter. Misericordia Hi d. Compertum est per inquisitionem in quam Richardus filius Symonis querens et defendens Willelmus Norman de placito defamationis

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46. CHAPLAIN v. SHEPHERD M anor court of Redgrave, Suffolk, 1315.

Geoffrey Shepherd is attached to answer Richard the Chaplain of the chapel of Palgrave in a plea of trespass, whereupon he complains that the said Geoffrey on the Friday next after the feast of St Martin in the 8th year of the reign of the King [Edward II] did maliciously cause the said Richard to be indicted at the sheriff’s tourn held the same day at Finningham for that he had drawn blood from a certain man, for which the same Richard was amerced at 40d., which the sheriff took from him to [his] damage 20s. And thereof he produces suit. And the aforesaid Geoffrey denies force etc. when etc. and says that since the same Richard does not impute against him that he committed any act, but only imputes against him that he spoke, because this is a personal action, it seems to him that for wind no action should accrue to him in this matter. And he prays judgment. And Richard in like manner. Therefore to judgment. A day is given to the parties at the next court. 47. FITZ ROBERT v. GILLARDON M anor court of Sutton, Yorkshire, 1318.

William Gillardon was attached to answer John son of Robert in a plea why, on the Friday next after the feast of St Laurence last in the vill of Swineshead in a certain place called Lambcoatholm he attacked John by calling him a thief and faithless in all his actions and perjurer in all pleas of debt, particularly in the court of the lord earl of Lancaster at Sutton against Nicholas son of Geoffrey of Sutton and Simon brother of the same N icholas, to his damage 40s. etc. William comes and denies etc. and says that he is in no way guilty. And he prays an inquest and the other party in like manner. Therefore let the inquest come.

48. SMITH v. NORMAN M anor court of Sutton, Yorkshire, 1318.

William Norman was attached to answer Richard son of Simon Smith in a plea why, on the Wednesday next before the feast of the Annunciation of St Mary in the 11th year of the reign of the King [Edward II], he defamed him in the town of Sutton so that the aforesaid Richard from that day until the feast of St Michael next following lost credit with a certain John Cade for 20s. which he would have lent to the same Richard and did not lend, whereof he has damage and is harmed to the value of 40s. etc. William comes and denies etc. and says that he did not defame him as he imputes against him. And he prays an inquest and the other party in like manner. Amercement 3d. It is found by the inquest upon which Richard son of Simon plaintiff and William Norman defendant put themselves in a plea of

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se posuerunt quod idem Willelmus defamavit predictum Richardum ad dampnum suum vi d. Ideo consideratum est quod predictus Richardus recuperet predictos vi denarios. Et dictus Willelmus in misericordia. 49. BOGHELEGH v. EDWARD Devon RO, Roll o f 13-14 Edw. II, m. 36.

Willelmus Edward de Okford attachiatus fuit ad respondendum Ricardo de Boghelegh cord' de placito transgressionis et unde queritur quod predictus Willelmus die Lune proximo ante festum Sancti Petri proximo preteritum extra portam occidentalem Exonie insultum fecit predicto Ricardo ipsum vocando falsum latronem proditorem ac ipsum falso et maliciose ibidem per ballivos domini Hugonis de Corteney attachiari fecit et ipsum vocavit falsum et excommunicatum et alia enormia ei fecit ad dampnum xx solidorum et amplius. Et inde producit sectam. Et predictus Willelmus venit et defendit vim et injuriam ubi quando etc. et dicit quod quo ad ipsum vocandum falsum latronem etc. dicit quod inde non est culpabilis et eciam quod quo ad ipsum falso et maliciose attachiandum dicit quod non falso neque maliciose nisi pro transgressione ei illata et illud oflfert se acquietare per legem ideo ad legem set quo ad ipsum vocandum excommunica­ tum venit et illud bene advocat quia dicit quod iam protulit hie in curia quandam literam que illud idem testatur et petit judicium. Et predictus Ricardus dicit quod predicta litera quam predictus Willelmus alias hie in curia protulit ei nocere non debet eo quod ipse Ricardus post predictam literam excommunicatoriam per prefatum Willelmum in curia porrectam quandam literam absolutionis que testatur ipsum absolutum esse in ipsa eadem curia porrexit cujus data fuit fere per dimidium annum ante [sic] datam litere excommunicationis et petit judicium si predicta litera excommunicatoria ei ab actione ilia precludi debet et super hoc petit judicium de recognitione sua. Ideo ad judicium coram majore die Lune.

50. GOSCELYN v. BAKER Cambridge Univ. Library, EDC 7/15/ii/l, Roll of 5-20 Edw. II, m. 37r.

Thomas Pistor attachiatus fuit ad respondendum Nicholao Goscelyn de placito transgressionis et unde queritur quod die Sabati proximo post festum Pasche anno regni Regis Edwardi filii Regis Edwardi xvii in villa de Lakyngheth dictum Nicholaum vocavit falsum et infidelem et ipsum coram magistro Firmino correctore domini Norwycensis episcopi falso accusavit quod ipse cum Christiana uxore Litil Johan adulterium commisit de quo ipse coram

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defamation that the same William defamed the aforesaid Richard to his damage 6d. Therefore it is considered that the aforesaid Richard should recover the aforesaid 6d. And the said William in mercy. 49. BOGHELEGH v. EDWARD Exeter m ayor’s court, 1320.

William Edward of Oakford was attached to answer Richard of Boghelegh cordwainer in a plea of trespass, whereupon he complains that the aforesaid William, on the Monday next before the feast of St Peter last outside the Westgate, Exeter, made attack upon the aforesaid Richard by calling him false thief [and] traitor and falsely and maliciously caused him to be attached there by the bailiffs of Sir Hugh of Courtenay and called him false and excommunicate and committed other enormities against him to [his] damage 20s. and more. And thereof he produces suit. And the aforesaid William comes and denies force and wrong where [and] when, etc. and says that as to calling him false thief etc. he is not guilty thereof, and also that as to attaching him falsely and maliciously he says that [it was] not falsely or maliciously but on account of the trespass done to him and he offers to acquit himself of this by [his] law. Therefore to law. But as to calling him excommunicate he comes and entirely avows this because he says that he has already proffered here in court a certain letter which attests this. And he prays judgment. And the aforesaid Richard says that the aforesaid letter which the aforesaid William proffered here at another time should not prejudice him because he, Richard, after the aforesaid excommunicatory letter [had been] proffered in court by the aforesaid William, proffered in the same court a certain letter of absolution which attests that he is absolved, the date of which was almost half a year before [sic] the date of the letter of excommunication. And he prays judgment if the aforesaid excommunicatory letter should bar him from that action. And upon this he prays judgment of his acknowledgement. Therefore to judgment before the mayor on Monday.1 50. GOSCELYN v, BAKER M anor court of Lakenheath, Suffolk, 1324.

Thomas Baker was attached to answer Nicholas Goscelyn in a plea of trespass. And thereupon he complains that, on the Saturday next after the feast of Easter in the 17th year of the reign of King Edward son of King Edward in the vill of Lakenheath, he did call the said Nicholas false and faithless and did falsely accuse him before M. Firmin, corrector of the lord bishop of Norwich, that he committed adultery with Christine wife of Little John, of which he M a rk e d

non prosequitur a t m . 37.

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domino magistro Firmino legittime se purgavit ad dampnum ipsius Nicholai xl. s. Et dictus Thomas venit et defendit vim [et] injuriam quando etc. et dicit quod non ipsum vocavit falsum hominem etc. nec ipsum coram dicto magistro Firmino accusavit et de hoc paratus est se defendere per legem. Et dictus Nicholaus petit de qua r[esponsione] vult facere legem. Et predictus Thomas dicit quod de hoc in nullo est culpabilis. Et dictus Nicholaus dicit quod sic et petit quod inquiratur. Et predictus Thomas vellet resortire ad aliam responsionem videlicet ad legem. Et dictus Nicholaus petit judicium si ad alium exitum debet admitti desicut ipse est ad patriam videlicet quod ipse dicit se in nullo esse culpabilem. Et dies datus ad proximam curiam etc. 51. SNEL v. AYLSE Leeds Archives Dept., Sheepscar Library, DB 205/1, s.d. 31 July.

Petrus de Aylse summonitus fuit ad respondendum Jordano Snel in placito transgressionis eo quod eum defamavit imponens ei quod perturbavit agistamentum domini regis per quam deberet perdidisse unam marcam nisi inquisitio eum acquietavit in curia. Et dictus Petrus convictus est per recognitionem ideo in misericordia. Et dictus Jordanus nichil recuperet quia nichil amisit. 52. PORTER v. DAVY New College, Oxford, MS. 3873, s.d. W ednesday after feast of Michaelmas.

Misericordia ii d. Compertum est per inquisitionem in quam Reginaldus le Porter et Agnes Davy se posuerunt quod dicta Agnes dictum Reginaldum male diffamavit apud bonos et graves apud quos prius non erat diflfamatus per quod credenciam suam amisit sicud idem Reginaldus queritur. Ideo consideratum [est] quod dictus Reginaldus recuperet dampna sua que taxantur ad tres denarios et dicta Agnes pro transgressione in misericordia. 53. BYCHEMORE v. SANGUYNER & THA PRO SC 2/154/43, m. 2.

Misericordia viii d. Johannes Bychemore querens optulit se versus Nicholaum Sanguyner et Willelmum Tha et unde queritur quod iidem Nicholaus et Willelmus graviter et maliciose ipsum Johannem apud bonos et graves difFamarunt imponendo sibi crimen furti et alia enormia eidem intulerunt ad dampnum quod tax’ [blank in MS.]. Et predicti Nicholaus et Willelmus defendunt vim et injuriam etc. et petunt hoc inquiri per homagium domini et concessum est pro utraque parte. Et super

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purged himself legitimately before his lordship M. Firmin, to the damage of Nicholas 40s. And the said Thomas comes and denies force and wrong when etc. and says that he did not call him a false man, nor did he accuse him before M. Firmin, and of this he is ready to deny by [his] law. And the said Nicholas demands of which answer he wishes to make [his] law. And the aforesaid Thomas says that as to that he is in no way guilty. And the said Nicholas says that he is [guilty] and prays an inquest. And the aforesaid Thomas wishes to have recourse to the other answer, that is [his] law. And the said Nicholas prays judgment whether he should be admitted to the other issue, since he [has put himself] on the country, that is, because he says that he is in no way guilty. And day [is] given at the next court etc. 51.

SNEL v. AYLSE

M anor court o f Hatfield Chase, Yorkshire, 31 July 1325.

Peter of Aylse was summoned to answer Jordan Snel in a plea of trespass in that he defamed him, imputing against him that he disturbed the agistment of the lord king, for which he would have lost one mark if the inquest had not acquitted him in court. And the said Peter is convicted by [his own] acknowledgement; therefore in mercy. And let the said Jordan recover nothing, because he lost nothing. 52.

PORTER v. DAVY

M anor court of Newton Longville, Berkshire, 30 September 1332.

Amercement 2d. It is found by the inquest on which Reginald le Porter and Agnes Davy put themselves that the said Agnes wrongly defamed the said Reginald before good and substantial persons among whom he was not previously defamed, by which he lost his credit, as the same Reginald complains. Therefore [it is] determined that the said Reginald should recover his damages which are taxed at 3d. and the said Agnes for the trespass in mercy. 53. BYCHEMORE v. SANGUYNER & THA M anor court of Moreton, Berkshire, 1332.

Amercement 8d. John Bychemore plaintiff offers himself against Nicholas Sanguyner and William Tha and thereupon he complains that the same Nicholas and William grievously and maliciously defamed him, John, before good and substantial persons, imputing to him the crime of theft and inflicted other enormities upon him to damages which [are to be] taxed. And the aforesaid N icholas and William deny force and wrong and pray that there be an inquest by the lord’s homage, and it is allowed for each party. And

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hoc homagium predictum juratum est et presentat quod predicti Nicholaus et Willelmus sunt culpabiles in predicta querela. Ideo ipsi in misericordia. Plegius Robertus Fronk. 54. WETWANG v. ISABELLE Leeds Archives Dept., Sheepscar Library, DB 205/11, s.d. Wednesday after feast of St Valentine

Misericordia ii d. Isabella que fuit uxor Johannis cognovit quod defamavit dominum Ricardum de Wetwong capellanum imponendo ei quod cognovit carnaliter Matildam uxorem Roberti le Leche per quod amisit servisium suum per tres septimanas et postea se purgavit ad dampna que taxantur per juratores ad etc. Ideo satisfaciat ei. Et quod sit in misericordia. 55. NASSH v. TAILLOUR Hants. RO, F/TC 3/16, m. 2d.

Walterus atte Nassh queritur versus Alexandrum le Taillour et Agnetem uxorem ejus de placito transgressionis dicit quod die Jovis proximo ante istam curiam venit [s/c] predictus Alexander et Agnes vi et armis videlicet etc. apud Wyntoniam et in predictum Walterum insultum fecerunt ipsumque verberaverunt etc. et alia videlicet quod predicta Agnes ipsum dixit esse falsum et perjurium in curia civitatis predicte per quod predictus Walterus deterioratus est et dampnum habet ad valenciam xx s. unde producit sectam. Et predicti Alexander et Agnes dicunt quo ad predictum Alexandrum non est culpabilis [sic] etc. et quo ad predictam Agnetem dicunt quod si aliquod malum sustinuit ad insultum suum proprium fuit et non alio modo et hoc petunt verificare per patriam etc. Ideo preceptum est venire xii etc. Et qui nec etc. 56. NEUNAN v. DOUNHAM Univ. of Wisconsin Memorial Library, Madison, Roll of 7 Ric. II, s.d. Tuesday after feast of St Jam es the Apostle.

Misericordia Hi d. Compertum est per xii juratores quod Ricardus Dounham fecit transgressionem Henrico Neunan et Agneti uxori ejus vocando ipsam Redmodyr per quod dicta Agnes amisit bonam suam famam ad dampnum ii d. Ideo etc. Et preceptum est [levare etc.].1 57. HATCH v. BOURGH Essex RO, D/DU 102/1, f- 7v.

Thomas Bourgh attachiatus fuit ad respondendum Johanni atte Hatch de placito transgressionis et unde queritur quod dictus Thomas est custumalis stare Supplied from prior entries.

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upon this the aforesaid homage is sworn and presents that the aforesaid Nicholas and William are guilty in the aforesaid complaint. Therefore they [are] in mercy. Pledge Robert Fronk. 54.

WETWANG v. ISABELLE

M anor court of Hatfield Chase, Yorkshire, 17 February 1339.

Amercement 2d. Isabelle widow of John acknowledged that she defamed Sir Richard of Wetwang, chaplain, imputing to him that he carnally knew Maud wife of Robert le Leche, by which he lost his service for three weeks and afterwards he purged himself, to [his] damages which are taxed by the jurors at etc. Therefore let her make satisfaction to him. And that she be in mercy. 55. NASSH v. TAILLOUR Town court of W inchester, 1372.

Walter atte Nassh complains against Alexander le Taillour and Agnes his wife in a plea of trespass. He says that on the Thursday before this court the aforesaid Alexander and Agnes came with force and arms, to wit etc., at Winchester and assaulted the aforesaid Walter and beat him etc. and other things, namely, that the aforesaid Agnes said that he was false and a perjurer in the court of the city aforesaid, by which the aforesaid Walter is harmed and has damage to the value of 20s., whereof he produces suit. And the aforesaid Alexander and Agnes say that as to the aforesaid Alexander they are not guilty etc., and as to the aforesaid Agnes they say that if he suffered any ill, it was at his own instigation and in no other manner and this they pray be verified by the country etc. Therefore it is ordered that twelve come etc. And who neither etc. 56.

NEUNAN v. DOUNHAM

M anor court of W ilburton, Cambridgeshire, 28 July 1383.

Amercement 3d. It is found by the twelve jurors that Richard Dounham did wrong to Henry Neunan and Agnes his wife by calling her ‘Redmodyr' by which the said Agnes lost her good fame, to [her] damage 2d. Therefore etc. And it is ordered [to raise etc.] 57.

HATCH v, BOURGH

M anor court of Havering-atte-Bower, Essex, 1383.

Thomas Bourgh was attached to answer John atte Hatch in a plea of trespass and wherefore he complains that the said Thomas is accustomed to stand

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sub hostiis et fenestris dicti Johannis ascultando secreta sua et eum defamando diversis hominibus ita quod amicitia vicine perdidit. Et unde etc. ad valenciam xx s. et judicium etc. Et predictus [Thomas] defendit quod non est culpabilis et hoc vult verificare per patriam. Et predictus Johannes similiter. Ideo preceptum est etc. 58. CHOWDE v. STEYNOUR Hants. RO, Bx/TC 9/35, m. 31.

Johannes Chowde queritur versus Johannem Steynour de placito transgres­ sions et unde queritur quod cum consuetudo civitatis talis est et extitit de tempore de quo memoria non existit quod non1 liceat alicui qui non sit inlibertatus appellare aliquem inlibertatum falsum et infidelem et si fecerit ipse inlibertatus potest manutenere actionem transgressionis versus eum secundum consuetudinem ville et ibi ubi Johannes Steynour injuste venit apud Wyntoniam die Dominica proximo ante festum Sancti Laurencii martiris anno regni Regis Henrici quarti nunc quarto et ibidem dictum Johannem Chowde vocavit falsum et infidelem injuste et contra consuetudinem civitatis predicte et ad dampnum dicti Johannis Chowde quadraginta solidorum. Et inde producit sectam. Et predictus Johannes Steynour presens in curia defendit vim et injuriam etc. et dampna etc. et dicit quod actionem istam manutenere non debet quia dicit quod talis consuetudo est et extendit se ad xxiiiior et petit judicium si actionem istam etc. Et predictus Johannes Chowde petit judicium pro eo quod dictus Johannes Steynour non dedicit consuetudinem superius per ipsum allegatam versus dictum Johannem Steynour. Ideo petit judicium etc. Et predictus Johannes Steynour similiter ut supra etc.12 59.

BUSSHER v. SEMERE

Suffolk RO, C 5/11, Roll of 6-7 Edw. IV, m. 7r.

Thomas Semere attachiatus fuit ad respondendum Alexandra Bussher de placito quare cum in libro constitutionum ville Gippewici inter alia contineatur quod si aliquis false aut maliciose diffamaverit aut scandalizaverit aliquam personam in loco publico seu mercato coram populo infra eandem villam Gippewici de furto roboria seu proditione aut de aliqua alia falcitate per quod idem sic diflfamatus seu scandalizatus aliquod dampnum inde patiatur aut deterioratur de bono suo nomine habeat actionem suam versus sic diffamantem pro dampnis suis recuperandis secundum consuetudinem ville predicte predictus Alexander per Johannem Creyke attornatum suum dicit quod predictus Thomas Semere decimo die mensis Januarii anno regni Regis 1 MS. repeals n o n . 2 Case marked n o n p r o s e q u itu r

on Roll for 1403-04, m. 2d.

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beneath the windows and doors of the said John listening to his private affairs and defaming him to divers men so that he has lost the friendship of the neighbourhood. And whereof etc. to the value of 20s. and judgment etc. And the aforesaid [Thomas] makes denial that he is not guilty and he wishes to verify this by the country. And the aforesaid John in like manner. Therefore it is ordered etc. 58. CHOWDE v. STEYNOUR Town court of W inchester, 1403.

John Chowde complains against John Steynour in a plea of trespass and wherefore he complains that although the custom of the city is and has been from time out of mind that it should not be lawful for any person not a freeman to name any freeman as false and faithless, and if he should do so the freeman might maintain an action of trespass against him according to the custom of the town, there came John Steynour unjustly, on the Sunday next before the feast of St Lawrence the Martyr in the fourth year of the reign of the present King Henry IV at Winchester, where he called the said John Chowde false and faithless unjustly and contrary to the custom of the city aforesaid and to the damage of the said John Chowde 40s. And thereof he produces suit. And the aforesaid John Steynour present in court denies force and wrong etc. and damages etc. and says that he should not maintain this action because he says that this custom exists but extends [only] to the Twenty-Four, and he prays judgment if this action etc. And the aforesaid John Chowde prays judgment because the said John Steynour does not deny the custom alleged by him above against the said John Steynour. Therefore he prays judgment etc. And the aforesaid John Steynour in like manner, as above etc. 59. BUSSHER v. SEMERE Borough court of Ipswich, 1467.

Thomas Semere was attached to answer Alexander Bussher in a plea why, whereas it is contained (inter alia) in the Book of Constitutions of the town of Ipswich that if anyone should falsely or maliciously defame or slander any person within the same town of Ipswich in a public place or market before others, of theft, robbery or treason, or of any other falseness, by reason of which the person so defamed or slandered shall suffer any damage or be deprived of his good name, he should have his action against the person defaming him for his damages to be recovered according to the custom of the town aforesaid, the aforesaid Alexander by John Creyke his attorney says that the aforesaid Thomas Semere, on the tenth day on the month of January in the fifth year of

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Edwardi quarti post conquestum quinto apud Gippewicum infra jurisdictionem istius curie in loco publico et mercato coram populo scandalizavit dictum Alexandrum dicendo quod ipse Alexander habuit in custodia sua diversa bona et catalla diversorum hominum et eadem bona et catalla furata fuit ad grave dampnum ipsius Alexandri et contra formam et ordinationem predictam etc. unde dicit quod deterioratus est et dampnum habet ad valenciam viginti librarum. Et inde producit sectam etc. Et predictus Thomas Semere in propria persona sua venit et defendit vim et injuriam quando etc. et dicit quod ipse in nullo est culpabilis de transgressione predicta modo et forma prout predictus Alexander superius versus eum queritur. Et de hoc ponit se super patriam. Et predictus Alexander similiter. Ideo preceptum est Thome Reed uni servientium ad clavem et ministro curie ejusdem ville quod venire faciat hie xii etc. per quos etc. Et qui nec etc. ad recognoscendum etc. Quia tarn etc. 60.

BLANDFIELD v. CREARE

Devon RO, Roll of 31-32 Hen. V III, m. Id.

Johanna Creare attachiata fuit ad respondendum Willelmo Blandfyld et Elizabeth uxori ejus de placito transgressionis super casum et unde iidem Willelmus et Elizabeth per Johannem Flemmyng attornatum suum queruntur quod cum eadem Elizabeth bone et vere gesture et conditionis bonique nominis ac honeste fame et conversationis fuerit et ita apud bonos et graves homines a tempore nativitatis sue hucusque dicta nota et reputata extiterit predicta Johanna maliciose machinans prefatos Willelmum et Elizabeth minus rite pregravare perturbare et depauperare ac eandem Elizabeth de bonis nomine fama et reputatione suis quarum preantea fuerat deprivare et detrahere quinto decimo die Julii anno regni domini Regis nunc Henrici octavi tricesimo primo hie scilicet apud Exoniam infra jurisdictionem hujus curie talia verba et dicta scandalosa detestabilia et odiosa de ipsa Elizabeth qualia in anglicis verbis sequuntur publice et palam in presencia quamplurimorum dicti domini regis ligeorum fidedignorum dixit retulit et palam propalavit videlicet ita dicens Elizabeth Blandfyld hath stolen Master Robert Toker is sylver cupp ac eadem verba et dicta ut vera fuissent et mendacia ibidem alta voce asseruit quorum pretextu non solum eadem Elizabeth de bonis nomine fama et reputatione suis quibus ante tunc fuerat et reputabatur multipliciter lesa et pejorata existit immo etiam prefatus Willelmus de quampluribus lucro et proficuo que idem Willelmus ratione emptionis venditionis et commutationis qualium iidem Willelmus et Elizabeth occuparent facerent et exercerent si predicta scandalosa verba et dicta de ipsa Elizabeth locuta relata sive propalata non fuissent habere et percipere debuisset amisit. Et unde dicunt quod deteriorati sunt et dampnum habent ad valenciam viginti librarum. Et inde producunt sectam etc. Et predicta Johanna Crear per Johannem Wolcote attornatum suum venit et defendit vim et injuriam quando etc. Et dicit quod dicti querentes actionem

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the reign of King Edward IV, at Ipswich within the jurisdiction of this court in a public place and market, did slander the said Alexander before others by saying that Alexander had in his custody various goods and chattels of divers men and that he stole the same goods and chattels, to the great damage of Alexander and against the form and ordinance aforesaid etc., whereupon he says that he is harmed and has damage to the value of £20. And thereof he produces suit etc. And the aforesaid Thomas Semere comes in his own person and denies force and wrong when etc., and he says that he is in no way guilty of the aforesaid trespass in the manner and form that the aforesaid Alexander complains against him as above. And of this he puts himself on the country; and the aforesaid Alexander likewise. Therefore Thomas Reed, one of the serjeants-atmace and an officer of the court of the same town, is ordered to cause to come here twelve by whom etc., and who neither etc., to make recognition etc., because both etc. 60. BLANDFIELD v. CREARE M ayor’s court of Exeter, 1539.

Joan Creare was attached to answer William Blandfield and Elizabeth his wife in a plea of trespass on the case, whereupon the same William and Elizabeth by John Flemmyng their attorney complain that although the same Elizabeth was of good and true bearing and condition, and of a good name and honest fame and conversation, and so has been known, spoken of and reputed before good and substantial men from the time of her birth until the present, the aforesaid Joan, maliciously scheming without right to disturb, overburden and impoverish the aforesaid William and Elizabeth, and to take away and deprive the same Elizabeth of her good name, fame and reputation which were previously hers, on the fifteenth day of July of the thirty-first year of the reign of the lord King Henry VIII, here, that is, at Exeter within the jurisdiction of this court, openly and publicly in the presence of many faithful liegemen of the said lord king, did speak, utter and openly proclaim of Elizabeth these slanderous, detestable and hateful words and statements which follow, speaking thus in English words, namely ‘Elizabeth Blandfield has stolen Master Robert Toker’s silver cup,’ and did there in a loud voice assert the same words and statements as if they were true, although [they were] lies, by reason of which not only is the same Elizabeth in numerous ways injured and worsened in the good name, fame and reputation which she had and by which she was known before then, but also the aforesaid William has lost much gain and profit which he, William, would have had and obtained by virtue of the buying, selling and exchanging which the same William and Elizabeth would have performed, accomplished, and made if the aforesaid slanderous words and statements about Elizabeth had not been spoken, uttered or proclaimed. And thereupon they say that they are the worse and have damage to the value of £20. And thereof they produce suit etc. And the aforesaid Joan Creare comes by John Wolcote her attorney and denies force and wrong when etc. And she says that the said plaintiffs should not

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suam predictam versus earn habere non debet [s/c] quia dicit quod dicta Johanna dictis die anno et loco dixit retulit et propalavit de dicta Elizabeth talia verba hie in anglia [s/c] sequencia videlicet Elizabeth Blandfyld I was never slandered with Roberte Toker ys sylver cupp as ye were absque hoc quod dicta Johanna dixit retulit et propalavit talia verba et dicta de ipsa Elizabeth prout in narratione predicta in anglicis superius specificantur modo et forma prout dicti querentes superius versus earn queruntur. Et hoc parata est verificare unde petit judicium si dictus [57'c] querentes actionem suam predictam versus earn habere debeant etc. Et predicti Willelmus et Elizabeth non cognoscentes aliqua per dictam Johannam superius allegata fore vera dicunt quod ipsi per aliqua preallegata ab actione sua predicta versus dictam Johannam habenda precludi non debent quia dicunt quod predicta Johanna predictis die anno et loco talia verba et dicta scandalosa detestabilia et odiosa de prefata Elizabeth qualia in narratione predicta in anglicis verbis superius specificatis publice et palam in presencia quamplurimorum dicti domini regis nunc ligeorum fidedignorum dixit retulit et propalavit modo et forma prout iidem Willelmus et Elizabeth superius versus earn queruntur. Et hoc petunt quod inquiratur per patriam. Et predicta Johanna similiter. Ideo etc.

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have their action aforesaid against her because she says that the said Joan on the said day, year and place did speak, utter and proclaim of the said Elizabeth these words following in English, namely, ‘Elizabeth Blandfield, I was never slandered with Robert Toker’s silver cup as you were,’ without this, that the said Joan did speak, utter and proclaim such words and statements of her, Elizabeth, as are specified above in English words in the aforesaid declaration in the manner and form that the said plaintiffs complain against her above. And this she is ready to verify, and so she prays judgment whether the said plaintiffs should have their action aforesaid against her. And the aforesaid William and Elizabeth, not acknowledging anything alleged above by the said Joan to be true, say that they should not be barred from having their action aforesaid against the said Joan by anything previously alleged because they say that the aforesaid Joan on the aforesaid day, year and place did, openly and publicly in the presence of many faithful liegemen of the said lord king, speak, utter and proclaim of the aforesaid Elizabeth such slanderous, detestable, and hateful words and statements as specified in English words in the aforesaid declaration in the manner and form above that the same William and Elizabeth complain against her above. And they pray that this be inquired by the country. And the aforesaid Joan likewise. Therefore etc.

III. CASES IN ROYAL COURTS The first twenty cases which follow are taken from the plea rolls of the courts of King's Bench and Common Pleas. The two earliest entries found on the rolls by the editor, one for each court, are included. So too are examples of early experiments in pleading and cases showing the growth and gradual stabilisation of the action on the case for words. For instance. Maunder v. Ware and Hankyn v. Lyncoln demonstrate the possibility of judgment being given in slander actions, a fact which becomes evident on the rolls only in the 1530s. The editor has tried to include cases that raise significant or difficult points of law. They also illustrate the forms of declarations used and the variety of answers available to defendants. The Elizabethan cases largely speak for themselves. Only one of them (no. 75) involved anything like a legal cause celebre. The case (no. 76) in which Sir Edward Coke appeared as the plaintiff may well be of most interest to historians. Perhaps it is worth pointing out the possibility that he was thinking of his own situation when he later argued a point of law as counsel (see no. 87). The same point of law was involved and it is well within the realm of possibility that Coke felt particularly strongly about the issue he was called upon to support. Formal parts of several of the entries on the roll have been purposely omitted. The omissions are indicated in every instance, and little of substance seems to be lost thereby, particularly since other cases contain full transcriptions of the omitted records of process. Again, some effort has been made in translation to approximate the style of the original Latin. The florid declarations of the King’s Bench have sometimes made this difficult, if not altogether impossible, but perhaps the results illustrate the freedom to experiment with different expressions of a common stock of legal ideas that sixteenth century lawyers who were preparing bills for that court undoubtedly had. The declarations used in the Common Pleas contrast sharply by their relative simplicity.

(41)

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61. OWUGHAN v. BAKER CP 40/981, m. 596.

Essex' Robertus Owughan per attornatum suum optulit se quarto die versus Willelmum Baker nuper de Parva Totham in comitatu predicto husbondman et Sabinam uxorem ejus de placito quare cum idem Robertus bone et honeste gesture et conditionis fuerit et ita apud bonos et graves habitus dictus et reputatus predicti Willelmus et Sabina machinantes prefatum Robertum minus rite gravare ac nomen et statum sua ledere et retrahere et pejorare eidem Roberto crimen latrocinii et furti imponebant ac ipsum communem latronem et furem esse apud Parvam Totham Heybrigge et Inford palam et publice dixerunt retulerunt et propalarunt per quod idem Robertus de statu nomine et negotiis suis quibus preantea cum honestis personis in emendo vendendo et licite barganisando usus est multipliciter lesus et deterioratus est ad dampnum ipsius Roberti quadraginta librarum etc. Et ipse non venit. Et preceptum fuit vicecomiti quod attachiet eum etc. Et vicecomes mandat quod nichil habet etc. Ideo capiatur quod sit hie a die Sancti Michaelis in xv dies etc. 62. SPAROWE v. HEYGRENE KB 27/986, m. 55d.

Norff' Willelmus Sparowe per attornatum suum optulit se quarto die versus Ricardum Heygrene nuper de Wretton in comitatu predicto husbondman de placito quare cum idem Willelmus bone et honeste gesture et conditionis fuerit et ita apud bonos et graves habitus dictus et reputatus predictus Ricardus machinans prefatum Willelmum minus rite gravare ac nomen et statum sua ledere detrahere et pejorare eidem Willelmo crimen latrocinii et furte [sic] imponebat ac ipsum Willelmum communem latronem et furem esse apud Wrotton palam et publice dixit retulit et propalavit per quod idem Willelmus de statu nomine et negotiis suis quibus cum honestis personis in emendo et vendendo et licite barganizando usus est multipliciter lesus et deterioratus est ad dampnum ipsius Willelmi viginti librarum ut dicit. Et ipse non venit. Et preceptum fuit vicecomiti quod attachiet eum etc. Et vicecomes retornavit quod ipse nichil habet etc. per quod etc. Ideo preceptum fuit vicecomiti quod capiat eum si etc. et salvo etc. ita quod habeat corpus ejus coram domino rege a die Pasche in tres septimanas ubicumque etc. 63. WARNER v. DETTON ET AL. C'P 40/997, m. 394d.

London Willelmus Warner clericus per attornatum suum optulit se quarto die versus Thomam Detton nuper de Watford in comitatu Hertf' wever

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61. OWUGHAN v. BAKER Common Picas. Trinity term 1507.

Essex. Robert Owughan by his attorney offers himself the fourth day against William Baker, late of Little Totham in the aforesaid county, husbandman, and Sabine his wife, in a plea why, although the same Robert has been of good and honest bearing and condition, and so held, spoken of and reputed before good and substantial persons; the aforesaid William and Sabine, scheming without right to harm the aforesaid Robert and to injure, remove and impair his name and estate, did impute the crime of robbery and theft to the same Robert and at Little Totham, Heybridge, and Inford did openly and publicly say, allege and utter that he was a common robber and thief, by which the same Robert is grievously harmed and injured in his estate, name, and in his dealings, to which he was previously accustomed, with honest persons in buying, selling and lawfully bargaining; to the damage of the selfsame Robert £40 etc. And he does not come. And the sheriff is commanded to attach him etc. And the sheriff returns that he has nothing etc. Therefore let him be taken that he be here in fifteen days from Michaelmas etc. 62. SPAROWE v. HEYGRENE King's Bench. Hilary term 1508.

Norfolk. William Sparowe by his attorney offers himself the fourth day against Richard Heygrene, late of Wretton in the aforesaid county, husband­ man, in a plea why, although the same William has been of good and honest bearing and condition, and so held, spoken of, and reputed before good and substantial persons; the aforesaid Richard, scheming without right to harm the aforesaid William and to injure, harm and impair his name and estate, did impute the crime of robbery and theft to the same William and at Wrotten did openly and publicly say, allege and utter that he, the same William, was a common robber and thief, by which the same William is grievously harmed and injured in his estate, name, and in his dealings, to which he was accustomed, with honest persons in buying, selling and lawfully bargaining; to the damage of the selfsame William £20, as he says. And he does not come. And the sheriff was ordered to attach him etc. And the sheriff returns that he has nothing etc. by which etc. Therefore the sheriff is ordered to take him if etc. and safe etc. so that he should have his body before the lord king in three weeks from Easter wheresoever etc. 63. WARNER v. DETTON ET AL. Common Pleas. Michaelmas term 1511.

London. William Warner, clerk, by his attorney offers himself the fourth day against Thomas Detton, late of Watford in the county of Hertford, weaver.

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Thomam Phelipp nuper de Watford in comitatu Hertf’ husbondman et Edmundum Blake nuper de Watford in comitatu Herf' chapman de placito quare cum idem Willelmus verus legalis et homo fidelis ac bone conditionis extiterit et in presenti existat predicti tamen Thomas Thomas et Edmundus ipsum Willelmum de furto et latrocinio duorum galicium argenteorum et parcellatim deauratorum precii decern marcarum de bonis et jocalibus ecclesie parochialis Beate Marie de Watford predicta penes London’ apud servientes London’ ad clavem ac alios officarios ejusdem civitatis falso et maliciose accusarunt ac eosdem servientes et officarios ad ipsum Willelmum ut felonem domini regis capiendum arestandum imprisonandum inquietandum et vexandum persepe procurarunt excitarunt et excitari fecerunt per quod idem Willelmus captus imprisonatus et in corpore et bonis suis graviter inquietatus vexatus et perturbatus extitit ad dampnum ipsius Willemi quadraginta librarum etc. Et ipsi non veniunt. Et preceptum fuit vicecomiti quod attachiat eos etc. Et vicecomes modo mandat quod nichil habent etc. Ideo capiantur quod sint hie a die Sancti Martini in xv dies etc. Ad quern diem hie venit predictus Willelmus per attornatum suum et optulit se quarto die versus prefatos defendentes de predictis placitis. Et ipsi non veniunt. Et vicecomes modo mandat quod non sunt inventi etc. Ideo sicut prius capiantur quod sint hie in octabis Sancti Hillarii etc. 64. LYNCOLN v. HENDY ET AL. KB 27/1024, m. 76.

Kane Willelmus Hendy nuper de Brychyngton in Insula de Thaneto in comitatu predicto yoman Johannes Broun nuper de parochia Sancti Nicholai at Wodde in Insula de Thaneto in comitatu predicto barbour et Willelmus Broun nuper de parochia Sancti Nicholai at Wodde in Insula de Thaneto in comitatu predicto barbour attachiati fuerunt ad respondendum Thome Lyncoln de placito quare cum idem . . . [writ om.] Thomas bone et honeste gesture fame et conditionis fuerit et ita apud bonos et graves a tempore nativitatis sue hucusque dictus habitus et reputatus fuerit predicti Willelmus Hendy Johannes Broun et Willelmus Broun machinantes predictum Thomam maliciose et minus rite gravare ac nomen et statum sua detrahere ledere et pejorare eidem Thome crimen murdri decimo nono die Februarii anno regni Regis Henrici octavi octavo apud Monkton predictam in Insula de Thaneto et in comitatu predicto imposuerunt ac ipsum Thomam felonice interfecisse et murdrasse quendam Matheum Dalman adtunc et ibidem publice dixerunt retulerunt et propalaverunt quorum quidem dictionis relationis et propalationis pretextu omnia bona et catalla ipsius Thome infra parochiam Sancti Johannis Baptiste in Insula de Thaneto predicta adtunc existencia per Robertum Hamton et Willelmum Alen servientes abbatis monasterii Sancti Augustini extra muros civitatis Cantuarie apud predictam parochiam Sancti Johannis Baptiste in Insula de Thaneto et in comitatu predicto postea scilicet decimo octavo die Marcii anno regni dicti

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Thomas Phelipp late of Watford in the county of Hertford, husbandman, and Edmund Blake late of Watford in the county of Hertford, chapman, in a plea why, although the same William has been and presently is a true, lawful, and a faithful man, and of good condition; nevertheless the aforesaid Thomas, Thomas, and Edmund did falsely and maliciously accuse the same William of the theft and robbery of two silver and parcel-gilt goblets valued at ten marks from the goods and precious objects of the parish church of St Mary in Watford aforesaid before the serjeants-at-mace of London and other officials of the same city, and did very often procure, stir up and cause to be stirred up the same serjeants and officials to seize, arrest, imprison, disquiet and vex the same William as a felon of the lord king; by which the same William has been seized and imprisoned, and has been grievously disturbed, vexed and disquieted in his body and goods; to the damage of the selfsame William £40 etc. And they do not come. And the sheriff was ordered to attach them etc. And the sheriff now returns that they have nothing etc. Therefore let them be taken that they be here in fifteen days from Martinmas etc. At which day the aforesaid William comes here by his attorney and offers himself the fourth day against the said defendants in the aforesaid pleas. And they do not come. And the sheriff now returns that they are not found etc. Therefore, as before, let them be taken that they be here in the octaves of Hilary etc. 64. LYNCOLN v. HENDY ET AL. K ing’s Bench, Trinity term 1517.

Kent. William Hendy, late of Birchington in the Isle of Thanet in the aforesaid county, yeoman, John Broun, late of the parish of St Nicholas at Wade in the Isle of Thanet in the aforesaid county, barber, and William Broun, late of the parish of St Nicholas at Wade in the Isle of Thanet in the aforesaid county, barber, were attached to answer Thomas Lyncoln in a plea wherefore, although he . . . [writ om.] the same Thomas has been of good and honest bearing, fame and condition, and has been so spoken of, held and reputed before good and substantial persons, the aforesaid William Hendy, John Broun and William Broun, scheming maliciously and without right to harm the aforesaid Thomas and to weaken, injure and impair his name and estate, on the nineteenth day of February in the eighth year of the reign of King Henry VIII at Monkton aforesaid in the Isle of Thanet and in the aforesaid county, did impute the crime of murder to the same Thomas, and did then and there publicly say, announce and utter that Thomas had himself feloniously killed and murdered a certain Matthew Dalman: by reason of which speech, announcement and utterance, all the goods and chattels of the selfsame Thomas then being within the parish of St John the Baptist in the Isle of Thanet aforesaid were afterwards seized and distrained by Robert Hamton and William Alen, servants of the abbot of the monastery of St Augustine outside the walls of the city of Canterbury, in the aforesaid parish of St John the Baptist in the Isle of Thanet and in the aforesaid county, namely on the eighteenth day of March in the eighth year of the reign of

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domini Regis nunc octavo 'supradicto' seisita et districta fuerunt ac etiam idem Thomas pretextu premissorum in statu nomine fama et negotiis suis quibus cum honestis personis in licite emendo vendendo et barganizando preantea usus fuit multipliciter lesus et deterioratus fuit et adhuc existit necnon idem Thomas in quampluribus laboribus misis et expensis occasione premissorum fatigatus extitit et depressus unde idem Thomas dicit quod deterioratus est et dampnum habet ad valenciam quadraginta librarum. Et inde producit sectam etc. Et predicti Willelmus Hendy Johannes Broun et Willelmus Broun per Willelmum Halk attornatum suum veniunt et defendunt vim et injuriam quando etc. Et petunt inde diem interloquendi. Et eis conceditur etc. Et super hoc dies inde datus est partibus predictis coram domino rege usque in octabas Sancti Martini ubicumque etc. videlicet prefatis Willelmo Hendy Johanni et Willelmo Broun ad interloquendum etc. et tunc ad respondendum etc. Ante quas quidem octabas Sancti Martini loquela predicta adjornata fuit per breve domini regis de communi adjornamento coram domino rege usque in octabas Sancti Hillarii extunc proximo sequentes ubicumque etc. Ad quas quidem octabas Sancti Hillarii coram domino rege apud Westmonasterium veniunt partes predicte per attornatos suos predictos. Et predicti Willelmus Hendy Johannes Broun et Willelmus Broun per attornatum suum predictum ut prius defendunt vim et injuriam quando etc. Et dicunt quod ipsi in nullo sunt culpabiles de premissis. Et de hoc ponunt se super patriam. Et predictus Thomas Lyncoln similiter etc. Ideo veniat inde jurata coram domino rege a die Pasche in xv dies ubicumque etc. Et qui nec etc. ad recognoscendum etc. quia tarn etc. Idem dies datus est partibus predictis etc. Postea continuato inde processu inter partes predictas per juratam positam inde inter eas in respectum coram domino rege usque a die Pasche in xv dies anno regni domini regis nunc undecimo extunc proximo sequente ubicumque etc. nisi dilectus et fidelis domini regis Johannes Fyneux miles capitalis justiciarius ipsius domini regis ad placita coram ipso rege tenenda assignatus prius die Mercurii proximo post clausum Pasche apud Cantuariam in comitatu predicto per formam statuti etc. venisset pro defectu juratorum etc. Ad quam quidem quindenam Pasche coram domino rege apud Westmonasterium veniunt partes predicte per attornatos suos predictos. Et prefatus capitalis justiciarius coram quo etc. misit hie recordum suum coram eo habitum in hec verba: Postea die et loco infracontentis coram Johanne Fyneux milite capitali justiciario infranominato associato sibi Johanne Igulden per formam statuti etc. venerunt tarn infranominatus Thomas Lyncoln quam infrascripti Willelmus Hendy Johannes Broun et Willelmus Broun per attornatos suos infraspecificatos. Et juratores jurate unde infra fit mentio exacti similiter veniunt. Qui ad veritatem de infracontentis dicendam electi triati et jurati dicunt super sacramentum suum quod predicti Willelmus Hendy Johannes Broun et Willelmus Broun sunt culpabiles de tota transgressione infraspecificata modo et forma prout predictus Thomas Lyncoln interius versus eos queritur. Et assident dampna ipsius Thome Lyncoln occasione transgres­ sions illius ultra misas et custagia sua per ipsum circa sectam suam in hac

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the present lord king aforesaid; and also the same Thomas was, and still is, greatly injured and harmed in his estate, name, fame and in the dealings to which before then he was accustomed with honest persons in lawfully buying, selling and bargaining; and moreover the same Thomas has been disturbed and disquieted by many labours, charges and expenses by reason of the foregoing; wherefore the same Thomas says that he is the worse and has damage to the value of £40. And thereof he produces suit etc. And the aforesaid William Hendy, John Broun and William Broun come by William Halk their attorney and deny force and wrong etc. And they pray a day to imparl therein. And it is granted to them etc. And upon this a day is given therein to the aforesaid parties before the lord king in the octaves of Martinmas wheresoever etc., namely to the said William Hendy, John and William Broun to imparl etc. and then to answer etc. Before which octaves of Martinmas the aforesaid matter was adjourned by the lord king’s writ of common adjournment before the lord king until the octaves of Hilary then next following wheresoever etc. At which octaves of Hilary before the lord king at Westminster come the aforesaid parties by their attorneys aforesaid. And the aforesaid William Hendy, John Broun and William Broun, as before, deny force and wrong etc. And they say that they are in no way guilty of the aforesaid matters. And of this they put themselves on the country; and the aforesaid Thomas Lyncoln likewise etc. Therefore let a jury therein come before the lord king in fifteen days from Easter wheresoever etc. and who neither etc., to make recognition etc., because both etc. The same day is given to the parties aforesaid etc. Afterwards, the process therein between the aforesaid parties being continued by the jury therein between them being respited before the lord king until fifteen days from Easter in the eleventh year of the reign of the present lord king then next following wheresoever etc., unless before then the lord king's well-beloved and faithful John Fineux, chief justice of the lord king, assigned to hold pleas before the king himself, on the Wednesday next after the Sunday after Easter, should have come to Canterbury in the aforesaid county by form of the statute etc. for want of jurors etc. At which quindene of Easter before the lord king at Westminster come the aforesaid parties by their attorneys aforesaid. And the said chief justice, before whom etc., has sent here the record made before him in these words: Afterwards, at the day and place stated within, before John Fineux, knight, chief justice within-named. John Igulden being associated with him by form of the statute etc., both the within-named Thomas Lyncoln and the withinmentioned William Hendy, John Broun and William Broun come by their attorneys specified within. And the jurors of the jury mentioned within, being called, likewise come; who, being chose, tried and sworn to tell the truth concerning the matters stated within, say upon their oath that the aforesaid William Hendy, John Broun and William Broun are guilty of the entire trespass specified within, in the manner and form that the aforesaid Thomas Lyncoln complains against them within. And they assess the damages of the selfsame Thomas by reason of that trespass, beyond the

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parte apposita ad viginti solidos et pro misis et custagiis suis ad quadraginta solidos etc. Ideo consideratum est quod predictus Thomas Lyncoln recuperet versus predictos Willelmum Hendy Johannem Broun et Willelmum Broun dampna sua predicta per juratores predictos in forma predicta assessa etc. necnon quadraginta solidos de incremento curie eidem Thome Lyncoln ad requisitionem suam per curiam domini regis hie pro misis et custagiis suis predictis adjudicatis etc. que quidem dampna in toto se attingunt ad quinque libras etc. Et predicti Willelmus Hendy Johannes Broun et Willelmus Broun capiantur etc. Postea scilicet vicesimo quinto die Octobris anno regni dicti domini regis nunc undecimo coram domino rege apud Westmonasterium venit predictus Thomas Lyncoln per attornatum suum predictum et cognovit se fore satisfactum de dampnis predictis. Ideo predicti Willelmus Hendy Johannes Broun et Willelmus Broun de dampnis illis sunt quieti. Et quod ipsi eant inde sine die etc.

65. EDGYNG v. KEMYNGS CP 40/1022, m. 762.

Midd' Johannes Edgyng per attornatum suum optulit se quarto die versus Willelmum Kemyngys nuper de London’ carpenter de placito quare cum idem Johannes verus ligeus domini Regis existit et ut verus ligeus domini regis et progenitorum ipsius domini regis regum Anglie a tempore nativitatis ipsius Johannis hucusque se gesserit et habuerit et ita apud bonos et graves habitus dictus et reputatus predictus Willelmus ex sua malicia prehabitata machinans predictum Johannem de bonis nomine et fama quibus idem Johannes preantea erat absque causa funditus deprivare et denigrare talia verba scandalosa orribilia et odiosa auribus ligeorum domini regis de prefato Johanne apud Turrim London' qualia in anglicis verbis sequuntur publice et palam in presencia quamplurimorum fidedignorum domini regis dixit protulit et propalavit videlicet Thow dede stele three score boltis of the kyngis iren ac eadem verba et dicta ut vera cum falsa fuissent et mendacia juramentis ibidem exclamando alta voce asseruit quorum pretextu idem Johannes non solum de bonis nomine et fama quarum ante tunc reputabatur ibidem deterioratus existit et pejoratus set etiam per duriciam imprisonamenti per tempus duodecim septimanarum graviter castigatus fuit et punitus ad dampnum ipsius Johannis viginti librarum etc. Et ipse non venit. Et preceptum fuit vicecomiti quod attachiet eum etc. Et vicecomes modo mandat quod nichil habet etc. Ideo capiatur quod sit hie in octabis Sancti Hillarii etc.

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charges and costs incurred by him relating to his suit in this matter, at 20s. and at 40s. for his charges and costs. Therefore it is determined that the aforesaid Thomas Lyncoln should recover against the aforesaid William Hendy, John Broun and William Broun his damages aforesaid, assessed by the aforesaid jurors in the form aforesaid etc., and also 40s. awarded in addition to the same Thomas Lyncoln at his request by the court of the lord king here for his charges and costs aforesaid etc., which damages in all amount to £5 etc. And let the aforesaid William Hendy, John Broun and William Broun be taken etc. Afterwards, namely on the twenty-fifth day of October in the eleventh year of the reign of the present lord king, before the lord king at Westminster, the aforesaid Thomas Lyncoln comes by his attorney aforesaid and acknowledges that he has been satisfied in respect of the aforesaid damages. Therefore the aforesaid William Hendy, John Broun and William Broun are quit of these damages. And let them go without day therein etc.

65. EDGYNG v. KEMYNGS Common Pleas, Michaelmas term 1518.

Middlesex. John Edgyng by his attorney offers himself the fourth day against William Kemyngs, late of London, carpenter, in a plea why, although the same John is a true liegeman of the lord king and has borne and held himself as a true liegeman of the lord king and of the progenitors of the lord king, the kings of England, from the time of the birth of this said John to the present, and so has been held, spoken of and reputed before good and substantial persons, the aforesaid William, out of his considered malice, scheming without cause entirely to deprive and dispossess the aforesaid John of the good name and fame which previously belonged to the same John, did openly and publicly, in the presence of many faithful men of the lord king, speak, pronounce and utter such slanderous, odious and horrible words about the said John to the ears of the liegemen of the lord king at the Tower of London, which follow in English, namely, ‘Thou did steal three-score bolts of the king’s iron.’ And he did assert the same words and sentences with a loud voice and with oaths as if they were true, although they were false and utterly without truth; by reason of which the same John is not only harmed and made the worse in the good name and fame by which he was previously reputed there, but also he has been grievously afflicted and punished by the constraint of imprisonment for a period of twelve weeks; to the damage of him the selfsame John £20 etc. And he does not come. And the sheriff was commanded to attach him etc. And the sheriff now returns that he has nothing etc. Therefore let him be taken that he be here in the octaves of Hilary etc.

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66. VERNYCOME v. FAWELL CP 40/1024. m. 352.

Devon Thomas Fawell nuper de Brodclyst in comitatu predicto attachiatus fuit ad respondendum Nicholao Vernycombe de placito quare cum idem . . . [writ om.] Nicholaus liber homo sit ipseque a tempore nativitatis sue libere conditionis existat predictus Thomas premissorum non ignarus machinans prefatum Nicholaum minus rite pregravare ac nomen et famam ipsius Nicholai denigrare et ipsum Nicholaum totaliter destruere et adnichillare vicesimo quarto die Octobris anno regni domini regis nunc decimo eidem Nicholao nomen et famam servilis conditionis videlicet bondchorell id est villanus in sanguine apud Brodclyst falso et maliciose imposuit dixit et propalavit per quod idem Nicholaus de nomine fama et negotiis suis quibus preantea cum honestis personis in emendo vendendo liciteque barganizando usus fuit multipliciter lesus deterioratus et pejoratus est ad dampnum ipsius Nicholai viginti librarum etc. Unde dicit quod deterioratus est et dampnum habet ad valenciam viginti et quinque librarum. Et inde producit sectam etc. Et predictus Thomas per Bartholomeum Prouce attornatum suum venit et defendit vim et injuriam quando etc. Et dicit quod predictus Nicholaus actionem suam predictam inde versus eum habere non debet quia dicit quod dicto tempore quo etc. predictus Nicholaus fuit villanus quorundam Lodowici Pollard militis Petri Caslegh doctoris theologie Johannis Gilbert armigeri et Johannis Bodley spectans ad manerium suum de Brodeclyst in comitatu predicto quodque iidem Lodowicus Petrus Johannes et Johannes sunt et omnes antecessores sui domini manerii predicti ac omnes illi quorum statum iidem Lodowicus Petrus Johannes et Johannes modo habent in eodem manerio seisiti fuerunt de predicto Nicholao et omnibus antecessoribus suis ut de villanis suis ad manerium predictum spectantibus1 a tempore quo non extat memoria per quod predictus Thomas eodem tempore quo etc. dixit et propalavit predictum Nicholaum fore nativum predictorum Lodowici Petri Johannis et Johannis ad manerium predictum in forma predicta spectantem prout ei bene licuit. Et hoc paratus est verificare unde petit judicium si predictus Nicholaus actionem suam predictam inde versus eum habere seu manutenere debeat etc. Et predictus Nicholaus dicit quod ipse per aliqua preallegata ab actione sua predicta versus prefatum Thomam habenda precludi non debet quia dicit quod ipse est et eodem tempore quo etc. fuit liber homo et libere conditionis et non villanus predictorum Lodowici Petri Johannis et Johannis spectans ad manerium suum predictum in forma qua predictus Thomas superius allegavit. Et hoc petit quod inquiratur per patriam. Et predictus Thomas similiter. Ideo preceptum est vicecomiti quod venire faciat hie in crastino Ascensionis Domini xii etc. per quos etc. Et qui nec etc. ad recognoscendum etc. Quia tarn etc. Ad quern diem hie veniunt partes etc. Et vicecomes non misit breve. Ideo sicut prius preceptum est vicecomiti quod venire faciat hie in octabis Sancte Trinitatis xii septan' MS.

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66. VERNYCOME v. FAWELL Common Pleas. Faster term 1519.

Devon. Thomas Fawell, late of Broad Clyst in the aforesaid county was attached to answer Nicholas Vernycome in a plea why, although he . . . [writ om.] the same Nicholas is a free man and has been of free condition from the time of his birth, the aforesaid Thomas, not ignorant of the foregoing, scheming without right to injure the said Nicholas, and utterly to destroy and undo the selfsame Nicholas, on the twenty-fourth day of October in the tenth year of the reign of the present lord king did falsely impute, speak, and utter against the same Nicholas the name and fame of servile condition, namely ‘bond-churl', that is, villein by blood. By which the same Nicholas has been gravely injured, weakened and made the worse in his name, fame, and in the dealings to which before then he was accustomed with honest persons in buying, selling and lawfully bargaining; to the damage of the same Nicholas £20; whereby he says that he is the worse and has damage to the value of £25. And thereof he produces suit etc. And the aforesaid Thomas by Bartholomew Prouz his attorney comes and denies force and wrong when etc. And he says that the aforesaid Nicholas should not have his action aforesaid against him therein because he says that at that time when etc. the aforesaid Nicholas was a villein of a certain Lewis Pollard, knight, Peter Caslegh, S.T.D., John Gilbert, esquire, and of John Bodley, regardant to their manor of Broad Clyst in the county aforesaid, and that the same Lewis, Peter, John and John and all their predecessors as lords of the aforesaid manor and all those who [held] the estate in the same manor which the same Lewis, Peter, John and John now hold, are and were seised of the aforesaid Nicholas and of all his predecessors as of their villeins regardant to the aforesaid manor from time out of mind, by which the aforesaid Thomas at that time when etc. said and uttered that the aforesaid Nicholas was a neif of the aforesaid Lewis. Peter, John and John, regardant to the aforesaid manor in the form aforesaid, as he was well entitled to. And this he is ready to verify; wherefore he prays judgment whether the aforesaid Nicholas should have or maintain his action aforesaid therein against him etc. And the aforesaid Nicholas says that he should not be barred from having his aforesaid action against the selfsame Thomas by anything alleged above because he says that he is [now] and at the same time when etc. was a free man and of free condition and not the villein of the aforesaid Lewis, Peter, John and John regardant to their manor aforesaid in the form that the aforesaid Thomas has alleged above. And he prays that this may be inquired into by the country; and the aforesaid Thomas likewise etc. Therefore the sheriff is commanded to cause to come here on the morrow of the Ascension twelve etc. by whom etc., and who neither etc., to make recognition etc., because both etc. At which day the parties come here etc. And the sheriff has not sent the writ. Therefore as before the sheriff' is commanded to come here in the octaves of Holy Trinity twelve etc. to make recognition in the form aforesaid etc. From which day the

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etc. ad recognoscendum in forma predicta etc. De quo die jurata predicta inter partes predictas de predicto placito posita fuit in respectum hie usque ad hunc diem scilicet in octabis Sancti Michaelis tunc proximo sequentibus nisi justiciarii domini regis ad assisas in comitatu predicto capiendas assignati per formam statuti etc. die Jovis proximo post festum Sancti Jacobi apostoli ultimo preteritum apud Exoniam in comitatu predicto prius venissent etc. Et modo hie ad hunc diem venit predictus Nicholaus per attornatum suum predictum. Et prefati justiciarii ad assisas coram quibus etc. miserunt recordum suum in hec verba: Postea die et loco infracontentis coram Ricardo Elyot milite et Thoma Pygott justiciariis domini regis ad assisas in comitatu predicto capiendas assignatis per formam statuti etc. venit infranominatus Nicholaus Vernicomb in propria persona sua. Et infranominatus Thomas Fawell licet solemniter exactus non venit sed defaltam fecit. Ideo jurata jurate infrascripte capiatur versus eum per defaltam. Juratores exacti veniunt qui ad veritatem de infracontentis dicendam electi triati et jurati dicunt super sacramentum suum quod predictus Nicholaus est et tempore propalationis infrascripte fuit liber homo et libere conditionis et non villanus infrascriptorum Lodowici Pollard militis Petri Caslegh Johannis Gylbert et Johannis Bodley spectans ad manerium infrascriptum prout predictus Thomas Fawell interius versus eum allegat. Et assident dampna predicti Nicholai occasione et fame servilis conditionis falci impositionis et propalationis ultra misas et custagia sua circa sectam suam in hac parte apposita ad decern libras et pro misis et custagiis illis ad sexaginta sex solidos et octo denarios. Ideo consideratum est quod predictus Nicholaus recuperet versus predictum Thomam dampna sua predicta per juratores predictos in forma predicta assessa. Et predictus Thomas in misericordia etc. 67. MAUNDER v. WARE CP 40/1083, m. 409d.

Devon Johannes Ware nuper de Rakenford in comitatu predicto husbondman attachiatus fuit ad respondendum Johanni Maunder de placito quare cum idem . . . [writ onv] Johannes Maunder bone ac honeste gesture et conditionis fuerit et ita apud bonos