Page:The Green Bag (1889–1914), Volume 02.pdf/20

 Slander in the Thomas should not be allowed to fight a duel and the quarrel should be appeased; still, here we seem to have a good round statement of law; it is not customary for the king's court to entertain a plea of defamation. Not that defamation is no wrong; the possibility of such things as placita de defamationibiis seems admitted, but king's court is not wont to entertain them. How are we to explain all this? Are we to say that our rude forefathers were so rude that they did not much mind each other's rudeness? Such an explanation would have to fight against an army of facts. The rudest monument of barbarian law, the Lex Salica itself, deals severely with those who give bad names,1 such as "wolf " or " hare." Say of a man that he has thrown his shield away and fail to prove your charge; you must pay for it. Call a woman " meretrix " and fail to prove your charge; you must pay fortyfive shillings for it, and you may do a good deal of miscellaneous violence at a cheaper rate. Indeed, there is much to show that reputation is dear to barbarians. When we look at the pleadings in our local courts, those courts in which old formulas lin gered longest, we find that shame, disgrace, dishonor, is regarded as one of the elements in every or almost every cause of action. If the defendant has beaten the plaintiff, this was done to the plaintiffs damage (Lat. " dampnum; " Fr. " damage ") to the amount of so many shillings, and to his dishonor (Lat. "vituperium, dedecus, pudor;" Fr. " huntage ") to the amount of so many shillings; nay, even when the cause of action is the mere detention of a debt, the plaintiff claims satisfaction not merely for damage suffered but for honor wounded. So widespread was this mode of pleading in the local courts that we may be surprised that it never prevailed in the king's courts, or became extinct there at an early date. Now, we might argue, a priori, that courts 1 Lex Salica, tit. 30, Hcsscls and Kern, col. 181.

5 which could see " huntage " in every wrong must in all probability have had some nemedy for the slandered. But we are not driven to argue about this matter. On ma norial rolls of the thirteenth and fourteenth centuries proceedings founded on defama tion are common. Sometimes such pro ceedings might be described as exercises of the police power of the court; bad language, like misplaced dunghills, is pre sented by the jurors and punished by amercements. But in other cases we have regular civil actions. Some such cases have lately been put into print; 1 I could give many more exam ples. A few taken from the rolls of the Bishop of Ely's court at Littleport, which rolls have been kindly lent me by Mr. O. C. Pell, may suffice. All these entries belong to the time between 1307 and I327" It is found by inquest that Rose Bindebere called Ralph Bolay ' latro ' and that he called her ' meretrix.' Therefore both are in mercy. And because the trespass done to the said Ralph exceeds the trespass done to the said Rose, it is considered that the said Ralph do recover from the said Rose d, for his taxed damages." "It is found by inquest that Alice wife of William Huckster defamed Mabel wife of Richard Mauntele, whereby the said Mabel was put to loss in the chapter [i. e. the ecclesiastical court] to the damage of Richard and Mabel 40^. "It is found by inquest that Richard Mauntele [amerced 2J.] and William of Helgeye [amerced 1 2^.] have falsely and maliciously defamed the lord's court here, by saying that no one can ob tain justice in the said court, in contempt of the lord." "From Alice Bale 3^. because she defamed the lord's corn, whereby other purchasers forbore to buy the lord's corn to the lord's damage." "It is found by inquest that Richard Maunteley and Maud his wife committed a trespass against John of Gunton and Alice his wife, by charging them with having sold oats and beer by false measure, to their damage taxed at 6d." 1 Select Pleas in Manorial Courts (Selden Society), 19, 36, 82, 95, 109, 116, 143, 170.