Page:The Green Bag (1889–1914), Volume 02.pdf/21

6 "It is found by inquest that John Curteys and John Gardhaut have defamed the sedge of Hugh Beld in the fen, whereby the said Hugh has lost the sale of the said sedge, to his damage taxed at 2s."

But the most curious and instructive extract that I can put in evidence consists of a hypothetical case found in a book of precedents for pleadings in manorial courts. This book — of which several manuscripts are extant, at the British Museum and in our Cambridge Library — can hardly, as it seems to me, be of much younger date than the beginning of the fourteenth century; it certainly ought to be in print. The point of the following case is that the defendant omits from his plea certain essential words. He denies the charge as against the plaintiff, but forgets that he must also deny it as against the plaintiff's suit, — the body of persons who, either in very truth or perhaps at this time by fiction, have appeared and expressed their willingness to support the plaintiff's claim. A point of law being thus raised, the lord's steward who is presiding over the court proceeds to consult the suitors of the court who are still acting as " judicatores," or "doomsmen." The original precedent is in French, but I will venture to put it into English.

"Of defamation. Sir Steward, William of Weston, who is here, complaineth of John of M., who is there, that against the lord's peace hath he defamed him in divers places to divers good folk of the country and his free lawfulness ('leaute') hath blemished insomuch that he called him thief and lawlessman ('deleaus') and whatever entered his head save only his right name, by reason whereof he is deemed such as he ought not and is not wont to be, to his damages of 40s. and shame of 20s. If confess, etc.

"Tort and force, defendeth John, who is here, against W[illiam,] who is there, and the defamation and the damages of 40s. and every penny thereof and all that he surmiseth against him; and ready is he to acquit himself in all such wise as this court shall award that acquit himself he ought.

"' Fair friends,' (saith the steward,) ' retire ye; for the court will consider.'

"' Willingly, Sir.'

"' Fair Sirs,' (saith the steward,) ' ye who are of this court, how seemeth it to you that John hath defended this? '

"' Sir,' (saith one Henry of C.,) ' it seemeth to us that he hath defended himself as he ought against William, but not against his suit; therefore as thou give them thy opinion.'

"' Fair friend John,' (saith the steward,) ' thou hast answered in this court to William of Weston touching a defamation whereby thou hast blem ished his lawfulness and his person in divers manners and in divers places and to divers good folk and in full market, and thou hast answered him by the words of court on these points accord ing to the usage of the court, save only that thou hast not defended against his suit as thou oughtest to have done, since thou shouldest have said more, namely, against William and against his suit and all that he surmiseth; and therefore doth this court award that thou make amends to W[illiam] in love by the award of good folk, and that thou be in mercy against the lord.'"

After this it will hardly be doubted that our mediaeval law knew the action for defamation perfectly well. The king's courts, it may be true, did not entertain, or at all events did not usually entertain, such actions. They had got shut out from those courts by the premature rigidity of the writ system. But a denial of remedy in the king's court was, in the thirteenth and even in the fourteenth century, no denial of a right. There were plenty of other courts;