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Reputation and Defamation$

Lawrence McNamara

Print publication date: 2007

Print ISBN-13: 9780199231454

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199231454.001.0001

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(p.233) APPENDIX: Notes on Historical Sources

(p.233) APPENDIX: Notes on Historical Sources

Source:
Reputation and Defamation
Publisher:
Oxford University Press

Chapter 1 discussed the way that the history of defamation law has been recounted in the literature, observing that there is little to distinguish the major sources. The earliest key works are by Frank Carr and Van Vechten Veeder.1 The history of the English common law of defamation is chronicled in the defamation sections of the major legal histories.2 A number of journal articles take a similar path.3

In Chapters 3 and 4, the literature on the early English courts inevitably draws significantly on the major works of legal history, including Pollock and Maitland's History of English Law Before the Time of Edward I, Holdsworth's History of English Law, and publications of the Selden Society.4 Richard Helmholz's relatively recent archival research on defamation cases to 1600 has been invaluable, often testing what are otherwise theories and impressions about the development of the law.5 For cases from the local courts I have relied principally, but not solely, upon the decisions translated and reproduced in (p.234) the Selden Society publications.6 Cases from the church courts have been more difficult to obtain. While some have been published in the works cited above, I have also drawn on research and analysis by Martin Ingram, among others.7 The scandalum magnatum statutes attract some attention in the defamation sections of major works, and a number of cases can be found in the law reports, but it appears the only substantial examination of these actions was undertaken by John Lassiter in 1978.8 Without doubt, there are more medieval defamation cases that could be located in published archival material but the coverage of cases is consistent with that addressed in the literature to date and my research does not suggest that the analysis would be different were a greater number of cases to be consulted.9

At times, the historical discussion necessarily moves in broad brush strokes. There is a deal of uncertainty in the literature about, for example, the periods during which the church and local courts had most influence and the points at which they fell into decline.10 There is also much disagreement about the relationship between the church courts and the King's courts. Helmholz has argued legal historians have traditionally been too heavily influenced by what the royal courts said was the proper jurisdiction of the church courts and thus minimized or misinterpreted the significance of the church courts. He argued in the 1970s that the statutes that formally limited the operation of the church courts, he suggests, were by no means as restrictive as the literature often suggests.11 Since then, this argument has been borne out further in the research and, more generally, a wide body of research has documented the significant role of the church courts even after the common (p.235) law remedy emerged.12 As Chapter 4 notes, there is uncertainty also about exactly when and why the common law courts first allowed actions on the case for defamation.13 While there is much that might be said about the various conflicting accounts, the scope of the disagreement does not generally affect the analysis and so I have largely put it to one side.

Knowledge about the Star Chamber's work is really derived from only a few key sources. The Selden Society works are again of assistance.14 There is a deal of material written in the 20th century histories of defamation about the Star Chamber's treatment of libel but much of it adds little to the Holdsworth's analysis in his History of English Law. 15 The records of the court having largely been lost, Holdsworth, identifies his most significant resources as the contemporary works of Hawarde's Reports, Coke's Institutes, and Hudson's Treatise on the Court of Star Chamber. Hudson, an advocate before the Star Chamber from 1605 until his death in 1635, is viewed in conflicting lights. Leadem described him as an apologist for the Court.16 Holdsworth is more generous, but still somewhat cautious: ‘As we might expect, he was identified with the lawyers who supported the prerogative…[While impartial, he was] not a discriminating critic of development of which he does not approve [and] he entirely suppresses the fact that it used torture to extort confessions and information.’17 Much of the Star Chamber discussion in Chapter 4 draws on Holdsworth, with comparison and support drawn from elsewhere as need be.

The analysis of the development of the common law action relies on the sources referred to above, the reported decisions and a selection of other historical works, including Kiralfy's The Action on the Case. 18 Several early treatises on defamation law are discussed in some detail in Chapter 4 (especially, Starkie, Townshend, and Odgers)19 but the law is addressed in many works. Among them, one could perhaps add Hugh Fraser's text to the major defamation texts.20 The main treatises on tort law in the United States and England all addressed defamation. The major English works that were first written in the 19th century included (in chronological order) those by Addison,21 Underhill,22 Pollock,23 (p.236) Ringwood,24 and Clerk and Lindsell.25 In the United States, the key works of the time included Hilliard,26 Bigelow,27 and Cooley,28 though Burdick (writing a little later) might also fairly be included.29 There were also some shorter defamation books, though they essentially reflected the major publications.30 From the late-19th century books appeared that were directed at a press audience rather than a legal one.31 Most recently, Mitchell has explored how modern defamation action law took shape, though the aspects of the law that he addresses are different from those I have been concerned with.32

Notes:

(1) F Carr, ‘The English Law of Defamation, Parts I & II’, (1902) 18 LQR 255, 388; VV Veeder, ‘The History and Theory of Defamation Law I & II’ (1903) 3 Columbia Law Review 546, (1904) 4 Columbia Law Review 33; VV Veeder, ‘The History of the Law of Defamation’ in Select Essays in Anglo-American Legal History (1909) 446. The last was a re-written version of part I of Veede,r's Columbia Law Review pieces.

(2) JH Baker, An Introduction to English Legal History (3rd edn, 1990) 495–508; CHS Fifoot, History and Sources of the Common Law: Tort and Contract (1949) 126–53; W Holdsworth, A History of English Law in Sixteen Volumes (3rd edn, 1945), Vol 8, 333–78, also published as W Holdsworth, ‘Defamation in the Sixteenth and Seventeenth Centuries, I-III’ (1924) 40 LQR 302, 397, (1925) 41 LQR 13; SFC Milsom, Historical Foundations of the Common Law (1969) 332–44; TF Plucknett, A Concise History of the Common Law (3rd edn, 1940) 427–45; E Jenks, A Short History of English Law (2nd edn, 1920) 145–9, 316–9; AKR Kiralfy, Potter's Historical Introduction to English Law and its Institutions (4th edn, 1962) 429–38.

(3) NStJ Green, ‘Slander and Libel’ (1871) 6 American Law Review 593; CR Lovell, ‘The “Reception” of Defamation by the Common Law’ (1962) 15 Vanderbilt Law Review 1051; RC Donelly, ‘The History of Defamation’ [1949] Wisconsin Law Review 99; WR Jones, ‘“Actions for Slaunder”—Defamation in English Law, Language and History’ (1971) 57 Quarterly Journal of Speech 274.

(4) FW Maitland, Select Pleas in Manorial and other Seignorial Courts, Volume I: Publications of the Selden Society, Vol 2 (1888); FW Maitland and WP Baildon, The Court Baron: Precedents of Pleading in Manorial and other Local Courts: Publications of the Selden Society, Vol 4 (1890); IS Leadem (ed), Select Cases Before the King's Council in the Star Chamber commonly called the Court of Star Chamber, 1477–1509, Vol 16 (1902/03); M Bateson, Borough Customs, Volume I: Publications of the Selden Society, Vol 18 (1904); C Gross, Select Cases Concerning the Law Merchant, 1270–1638, Volume 1: Publications of the Selden Society, Vol 23 (1908); CG Bayne, Select Cases in the Council of Henry VII: Publications of the Selden Society, Vol 75 (1958); JH Baker, The Reports of Sir John Spelman, Volume II: Publications of the Selden Society, Vol 94 (1977).

(5) RH Helmholz (ed), Select Cases on Defamation to 1600: Publications of the Selden Society, Vol 101 (1985).

(6) The indexes of all Selden Society volumes have been searched through to 2004. In addition, several cases have been taken from other works that have reproduced local court cases, such as AKR Kiralfy, A Source Book of English Law (1957) and Fifoot (n 2 above), though there is some overlap with the Selden Society volumes. Citation of the older cases does not appear to follow a standard form. I have adopted Kiralfy's method for consistency with the usual format of case citation, though also identifying the court where possible. In a few instances the cases are also reproduced in other sources but I have provided only the citations to the Selden Society volumes.

(7) M Ingram, Church Courts, Sex and Marriage in England, 1570–1640 (1987); CA Haigh, ‘Slander and the Church Courts in the Sixteenth Century’ (1975) 78 Transactions of the Lancashire and Cheshire Antiquarian Society 1; D Neal, ‘Suits Make the Man: Masculinity in Two English Courts, c.1500’ (2002) 37 Canadian Journal of History 1; LR Poos, ‘Sex, Lies and the Church Courts of Pre-Reformation England’ (1995) 25 Journal of Interdisciplinary History 585; JA Sharpe, Defamation and Sexual Slander in Early Modern England: The Church Courts at York (Borthwick Papers No 58) (c1980). Ingram, Ibid 8, notes that until the mid-20th century the records of the church courts were highly inaccessible. It was still the case in 1971 that the records were ‘unprinted and scattered in archives throughout England’: RH Helmholz, ‘Canonical Defamation in Medieval England’ (1971) 15 American Journal of Legal History 255, 255.

(8) JC Lassiter, ‘Defamation of Peers: The Rise and Decline of the Action for Scandalum Magnatum, 1497–1773’ (1978) 22 American Journal of Legal History 216.

(9) A small number of court rolls or Year Books that have been published by academic historians or local historical societies were also consulted but yielded nothing relevant. For further local court matters, Donnelly cites material that I was unable to access: RC Donnelly, ‘History of Defamation’ [1949] Wisconsin Law Review 99, 101, n 5. There is no indication in his article that those sources contradicted the views in the literature as it then stood. Helmholz (n 5 above) xlviii, notes that ‘no systematic study of defamation in [the local court rolls]’ had been undertaken until his own research in 1985. It does not appear there has been any such study since Helmholz.

(10) See Chapter 3, II.

(11) Helmholz (n 7 above) 255 cf W Holdsworth, ‘Defamation in the Sixteenth and Seventeenth Centuries I’ (n 2 above) 304.

(12) Ingram (n 7 above); Haigh (n 7 above); Sharpe, (n 7 above); SM Waddams, Sexual Slander in Nineteenth-Century England: Defamation in the Ecclesiastical Courts, 1815–1855 (2000). After a weakened ecclesiastical jurisdiction was reinstated following the Restoration, defamation actions in the church courts fell away steadily during the 18th century but were still to be found until the power of those courts to hear them was formally terminated by statute in 1855.

(13) See Chapter 4, I(A).

(14) Bayne (n 4 above); Leadem (n 4 above).

(15) W Holdsworth, A History of English Law in Sixteen Volumes (3rd edn, 1945) Vol 5, 155–214, esp 205–12; Vol 8, 333–46.

(16) Leadem (n 4 above) x.

(17) Holdsworth (n 15 above) 164–5.

(18) AK Kiralfy, The Action on The Case (1951). See also the texts and treatises, below.

(19) See Chapter 4, II.

(20) H Fraser, The Law of Libel in its Relation to the Press (1889); Principles and Practice of the Law of Libel and Slander (1893), (2nd edn, 1897), (3rd edn, 1901), (4th edn, 1908), (5th edn, 1917), (6th edn, 1925).

(21) CG Addison, Wrongs and their Remedies, being a Treatise on the Law of Torts (1860), (2nd edn, 1864), (3rd edn, 1870), (4th edn, 1873), (5th edn, 1879), (6th edn, 1887), (7th edn, 1893), (8th edn, 1906).

(22) A Underhill, A Summary of the Law of Torts (1873) (2nd edn, 1878), (3rd edn, 1881), (4th edn, 1884), (6th edn, 1894), (7th edn, 1900), (8th edn, 1906), (9th edn, 1912), (10th edn, 1922).

(23) F Pollock, The Law of Torts (1887) (2nd edn, 1890), (3rd edn, 1892), (4th edn, 1895), (5th edn, 1897), (6th edn, 1901), (7th edn, 1904), (8th edn, 1908), (9th edn, 1912), (10th edn, 1916), (11th edn, 1920), (12th edn, 1923), (13th edn, 1929), (14th edn, 1939), (15th edn, 1951).

(24) R Ringwood, Outlines of the Law of Torts (2nd edn, 1894), (3rd edn, 1898), (4th edn, 1906), (5th edn, 1924).

(25) JF Clerk and WHB Lindsell, The Law of Torts (1889), (2nd edn, 1896), (3rd edn, 1904), (4th edn, 1906), (5th edn, 1909), (6th edn, 1912), (7th edn, 1921), (8th edn, 1929), (9th edn, Clerk & Lindsell on the Law of Torts, 1937), (10th edn, 1947), (11th edn, 1954).

(26) F Hilliard, The Law of Torts or Private Wrongs (1859), (2nd edn, 1861).

(27) MM Bigelow, Elements of The Law of Torts (1878), (2nd edn, 1882), (3rd edn, 1886), (4th edn, 1891), (5th edn, 1894), (6th edn, 1896), (7th edn, The Law of Torts, 1901), (8th edn, 1907); Elements of The Law of Torts (1st Eng edn, 1889), (2nd Eng edn, The Law of Torts, 1903).

(28) TM Cooley, A Treatise on the Law of Torts or the Wrongs which arise Independently of Contract (1878), (2nd edn, 1888), (3rd edn, 1906), (4th edn, 1932).

(29) Francis M Burdick, The Law of Torts (1906), (2nd edn, 1908), (3rd edn, 1913), (4th edn, 1926).

(30) GW Cooke, A Treatise on the Law of Defamation (1844); JCH Flood, A Treatise on the Law Concerning Libel and Slander (1880).

(31) RJ Kelly, The Law of Newspaper Libel (1889); WV Ball, The Law of Libel as Affecting Newspapers and Journalists (1912); C Pilley, Law for Journalists (1924); T Dawson, The Law of the Press (1927).

(32) P Mitchell, The Making of the Modern Law of Defamation (2005).