The Online Library of Liberty

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• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

PART 2

CRIME AND TORT

SUMMARY

• Crime and Tort - - - - - - -
• chapter 1.Criminal Procedure - - - - - -
• chapter 2.The Felonies - - - - - - -
• chapter 3.Misdemeanours, Trespass and Tort - - -
• chapter 4.Liability, Civil and Criminal - - - -
• chapter 5.Defamation - - - - - - -

CRIME AND TORT

The distinction between criminal and civil law has been a commonplace with English lawyers for over seven hundred years. Glanvill began his treatise with the remark that “some pleas are criminal, and some are civil”.1 Already, then, the distinction in practice is of a procedural nature; Glanvill has simplified the question to a distinction between criminal proceedings and civil proceedings. What, then, are criminal proceedings? This question is confused by the existence of another distinction which nearly corresponds with it, but not entirely. This is the division of pleas into pleas of the Crown, and common pleas.

PLEAS OF THE CROWN

The older text-books to which we look for information on criminal law almost universally bear the title “pleas of the Crown”; thus Staunford (1557), Coke’s third Institute (1644), Hale, and a host of others throughout the eighteenth century. Now the test of a plea of the Crown is purely historical, and although many of them would be classed as criminal under any system of classification, others owe their position there to historical accidents.

The antithesis to pleas of the Crown is “common pleas”, and most of the matters dealt with in the Court of Common Pleas are obviously civil.2 In the main they are concerned with adjusting the rights and relationships between private parties, but all through these proceedings the Crown is apt to step in and exact fines and amercements which, in some cases at least, are clearly punitive. In the words of Sir James FitzJames Stephen:

We are therefore faced with an impossible task if we are required to state the limits of criminal law as it was understood in early times. Glanvill’s distinction was good enough as the first arresting phrase of a treatise, but it bore little relation to the state of the law in his time. In this matter, as in others, there are two practical considerations which override formal and analytical distinctions. First, the middle ages were more intent on doing what had to be done than on classifying the ways of doing it. If some things which we regard as criminal could be dealt with more effectively under the forms of civil litigation, then they became common pleas. If other things, which now seem indubitably civil, could only be effectively dealt with under criminal forms, then they became pleas of the Crown. Indeed, we shall find, even in the Tudor period, that the Court of Star Chamber developed the law of libel without regard for any distinction between crime and tort. It would be hopeless to attempt any classification in the face of these facts, and a modern history of criminal law is therefore bound to be a history of those matters which now are considered criminal, irrespective of whether they were in the middle ages common pleas or pleas of the Crown. Secondly, the financial element has been even stronger in criminal matters than in others during the middle ages. Jurisdiction over felonies and lesser offences was a steady source of revenue consisting partly of fines and amercements, and partly of forfeitures and dues of Court. To establish that a particular proceeding is a plea of the Crown may mean that it was (in modern estimation) a serious crime, but it may also mean that it is merely a plea cognisable in the King’s Court and not elsewhere. The only contemporary significance all this had was that the King took the profits instead of some local franchise holder. When it is said that the breach of the King’s peace is a plea of the Crown, it does not mean that the whole field of trespass, in which this allegation is generally made, is part of the criminal law; it simply means that the plaintiff wants to sue in the King’s Court, and the King’s Court has devised a convenient technicality for inviting him to do so. When the case comes to be pleaded, we shall find that the so-called plea of the Crown will be enrolled on the records of the Court of Common Pleas—although, for that matter, even down to the reign of Edward I cases which are purely criminal are said to appear occasionally on the rolls of the Court of Common Pleas.1

CRIME AND TORT

The modern distinction between crime and tort is therefore one of those classifications which it is futile to press upon mediaeval law. This has long been recognised. Maitland2 observed that the criminal law, at the time of the Conquest, was also the law of torts; it is just as reasonable to put it the other way round (as one writer3 has done) and to say that the early period shows a progression from tort to crime, instead of from crime to tort. Trespass undoubtedly was more punitive, more criminal, in its early days than at the end of the middle ages, and so we can say that tort has grown out of crime. On the other hand, Anglo-Saxon proceedings consequent upon a murder, maiming, theft or serious outrage had little to do with the Crown and were conducted entirely by the party aggrieved; they might result in a punishment, but their principal element was undoubtedly compensation or restitution. Their main characteristic was thus analogous to that of a modern action in tort. Later on, the Crown took a much larger part in such proceedings, and so it is quite plausible to argue that the original stem was mainly tort, and that crime branched off from it. The imposition of a modern classification upon mediaeval facts thus leaves us with the inevitable result—a barren choice between two epigrams.1

THE NATURE OF CRIMINAL LAW

Once the distinction was established, criminal law was set aside as separate from other branches of law, and its distinctive nature was recognised as involving special rules. Examples are the “common-law misdemeanours” which English law has viewed with deep suspicion, the principle that statutes setting penalties should not do so retrospectively,2 and the principle commonly expressed in the maxim, nulla poena sine lege.3

CHAPTER 1

CRIMINAL PROCEDURE

In very general terms, the history of criminal procedure seems to follow this course. First, it is almost entirely in the hands of the injured party and his opponent, and takes place in local courts. Then the influence of the Crown makes itself felt, beginning with a cautious list of pleas of the Crown. There is for a long while no question of the Crown actually trying such cases—all it can hope for at first is a share of the proceeds. The second stage is when the Crown sets up machinery to discover hidden crimes. Many must have escaped altogether by reason of the unwillingness of anyone to bring an “appeal”, and this results in a loss of possible revenue to the King (to say nothing of the encouragement to criminals). The Crown henceforth will have a mass of crimes presented by grand juries, and will have to devise measures for trying them. Rapid development is therefore found in the various trial commissions, and the rise of the justices of the peace added materially to the resources of the Crown both in discovering crimes and in trying criminals. Thirdly, the existence of this elaborate machinery will permit the enlargement of the list of crimes since there are now numerous institutions capable of dealing with them. Many statutory felonies will be created, and many offences less than felony will be made cognisable by justices of the peace; this last development will be at the expense of those local jurisdictions which so far had dealt with them, and will also include some matters for which so far only trespass (in substance now a civil remedy) had been available.

ANGLO-SAXON CRIMINAL LAW

As we have already remarked, the Anglo-Saxon period is long1 and yet it is difficult to trace clear development over those five centuries for which we have written remains.

It is tempting at first to make a neat plan of the progress from warfare—the feud between the two kin of the criminal and the injured—to money compensation. One would expect the early laws to say more about fighting, and the later ones more about payment.2 The sources, however, do not align themselves so easily as this. Our earliest laws (Ethelbert’s) are mainly tariffs of payment; our later ones say much about feuds. In the middle of the tenth century Edmund is still laying down rules for the feud,3 and Canute is still legislating on it just before the Conquest.4 It is not easy, therefore, to establish an orderly progression, and it seems more probable that several stages of development were in fact existing side by side. Indeed, half a century after the Conquest we read this:

The avenger is thus something in the nature of an executioner, save that the trial of the slain takes place post mortem as part of the defence of the avenger.6 Quite early, however, it became possible to “buy off the spear” if one preferred not to “bear it”. An offer of wergeld will therefore prevent the avenger doing justice himself, and in criminal as well as civil matters, no action ought to be taken until a formal demand for satisfaction has been made and proved ineffectual. The laws of Alfred are very explicit on the matter:

We have here at least one element of legal procedure—delay. These intervals are obviously designed so that the offender may be put into touch with his family and friends with a view to settling the matter by paying (or promising to pay) the composition.

An even more striking fact is that so large a part of Anglo-Saxon criminal law had to be expressed in terms of money.

PLEAS OF THE CROWN

Gradually we hear of state-sanctioned punishments. Perhaps the injured party or his representatives will carry out the sentence, but the significance of the change lies principally in the fact that some of the greatest offences are now corporally punished and are not “emendable” with money save only by the King’s very special grace. In the reign of Canute we get the first explicit lists of royal pleas—and it is significant there are are different lists for Wessex, Mercia and the Danelaw.3 In Domesday Book4 we find differing lists for various counties, and even for various towns, while some of the greater sees and abbeys had received even these royal rights by grant from the Crown. Typical pleas of the Crown are foresteal (murderous assault from an ambush), breach of the King’s peace (in general, only if the peace had been granted under the royal seal), and hamsocn (violent breaking into a house). In some places larceny was a royal plea, but not generally. Glanvill gives us a short list5 which is the basis for the common law of future centuries: treason, concealment of treasure trove, breach of peace, homicide, arson, robbery, rape and the counterfeiting of the King’s seal or coinage. Larceny is omitted, as being only a plea of the sheriff.

By Glanvill’s day the old scheme of wer and wite had vanished, leaving very few traces. If all the payments were exacted (and as Maitland has calculated, the bill may be long and complicated) it is hardly imaginable that any ordinary person could pay it. The value of money changed, and the Normans reckoned by a shilling of twelve pence instead of the old English shilling of four or five pence. The Normans, moreover, with their memories of the duke’s “pleas of the sword”, may have given a much more precise meaning to the old conception of pleas of the Crown.1 Henceforward, the pleas of the Crown will be not merely pleas in which the Crown takes a particular pecuniary interest, but offences which were held to be committed against the Crown; the avenger will thus be the Crown as well as the injured party or his kin. These two ideas, one old and one new, make two alternative procedures necessary; and such in fact we find to be the case.

THE OLD PROCEDURE

The old procedure is of two sorts. The first dealt with the criminal taken in the act, and for him there was short shrift. Many local custumals2 relate the various deaths assigned to the hand-having and back-bearing thief. In the Anglo-Saxon age there was the possibility (at least in theory) of a thief redeeming his life by paying a sum equal to his own wer.

When the theft was not manifest, some sort of procedure was felt to be necessary. Its general features are the summons of the accused by the accuser; when both are present, the accuser makes a solemn fore-oath in support of his charge, and to exclude frivolous or malicious accusations. In some cases it might be supported by oath-helpers. Then the accused as solemnly denied the charge upon oath, and the court proceeded to the “medial” judgment which was generally to the effect that the defendant should “clear himself” by one of the ordeals. This sort of procedure long survived in those places which preserved ancient customs unaffected by the common law, such as London and various boroughs.

The Norman Conquest brought one great innovation—trial by battle; the sworn accusation and the sworn defence were transformed by introducing the charge of “felony” (a Norman and feudal conception), and the battle served as the ordeal. Soon the difficulties of conflict of laws were overcome3 and the mingling of races proceeded so far that, if the old procedure were invoked, it was generally the “appeal”, as it came to be called, and not the ordeal (save in some localities). The common law therefore accepted the old procedure into its system in the form of the appeal only.4

The appeal was in common use throughout the middle ages in county and other local courts. Even in the King’s Bench appeals were allowed,1 and appeals of treason were a particularly bizarre form of state trial. The “lords appellant” in the reign of Richard II are not the only nor the first examples. Robert de Montfort appealed, and convicted, Henry of Essex of treason in 1163,2 and there was a curious case in the Court of the Constable of England in 1453 when Lialton appealed Norris of treason. The Court assigned counsel to each party (trainers, armourers and painters), gave them equipment, and the King ordered “a convenient skaffold for us to have the sight of the said battaill”, and more curious still, the Crown bore all the costs and treated the alleged traitor with the same consideration as the appellant.3

Appeals survived particularly as a means whereby the relatives of a murdered person could still harass one who had been tried and acquitted. Spencer Cooper (a future Chancellor’s brother, and himself a future judge) was appealed after being acquitted of murder, but the process was quashed;4 the last case was Ashford v. Thornton, in consequence of which appeals of felony were hastily abolished.5

THE NEW PROCEDURE

Of the proceedings of the judicial and administrative Eyres of the earlier twelfth century, we have little detailed knowledge. It is only towards the end of that century that our knowledge becomes precise. The Assize of Clarendon (1166) set up machinery for discovering alleged criminals by means of the jury of inquest—the grand jury of modern times.6 This measure can hardly be explained save by assuming that the old procedure of private accusation had failed to give satisfaction. The King evidently hoped to hear of many criminals through the grand juries who would have escaped prosecution by private parties. Communal accusation is thus added to private accusation as an alternative procedure. The assize did much more than this, however, for it laid down the principle that persons indicted could be tried by the King alone, and that the forfeitures were his only. The indictment procedure therefore superseded all local jurisdictions both in the matter of trial and of profits. From this time onwards it thus became very necessary for the Crown to maintain a regular succession of travelling justices to “deliver the gaols” of those who had been committed to prison on indictment.

LATER DEVELOPMENT OF INDICTMENT

These indictments were at first taken before royal justices and sheriffs. The next great enlargement of the procedure was in the growth of the powers of justices of the peace, whose early history has become known only recently.1 In the reign of Edward II they were given powers of taking indictments, in addition to their older functions. Once again there must have been a sudden increase in the number of indicted persons awaiting trial. Justices of gaol delivery had therefore to be commissioned with more frequency; it was out of the question to send justices from the superior courts, and so, even in Edward II’s reign, we find that commissions of gaol delivery were issued to small groups of experienced and trustworthy justices of the peace. The next reign saw the logical development of this; the justices were allowed to try indicted persons themselves, and without the issue of separate commissions, although not for all offences. Commissions of gaol delivery continued to issue, although the work of the commissioners was much lightened by the activity of justices acting under their enlarged commissions.

The early fourteenth-century indictment was as simple a document as later ones were complex. There were no formalities, but merely the date, list of jurors, and brief statements that A stole an ox, B burgled a house, C slew a man, and so on. The “fear of God”, the “instigation of the devil” and the rest of the horrific jargon of the classical forms seems not to be mediaeval. Too much simplicity gave room for abuse, in fact, and statutes were needed to protect the indictment from being “embezzled”,2 and to ascertain the precise person accused by describing his station in life—a clause known as the “addition”3 and productive of much technicality later on, when indictments fell into the hands of the special pleaders, who had further to use the greatest precision in setting out every element of the crime charged.

INFORMATIONS

The principle of private initiation was not lost; indeed, the strength of that principle is characteristic of the common law. Anyone who cared to could procure an indictment and carry on the necessary proceedings—and if the statute book is to be believed, many indictments were in fact procured out of hate and spite. On the other hand, a grand jury could ignore a bill as it saw fit. The Crown had not yet gone very far in the direction of initiating criminal proceedings; at most it had made it reasonably easy for a private person to do so. From Edward I onwards, the Crown occasionally used “informations” to put a man on his trial for treason, felony or misdemeanour, and thus at last the Crown found ways of directly initiating a criminal proceeding.1 The Star Chamber (and later on, statutes) allowed private persons as well as the law officers of the Crown to put in informations. It was the use of informations by the Council and Star Chamber, coupled with their lack of jurisdiction over felonies, that probably gave rise to the newer rule that informations lie only for offences less than felony. They became involved in the political and constitutional struggle of the seventeenth century, and strong efforts were made to get them adjudged illegal. These attempts failed, and informations, properly pruned by statute, received a settled position in criminal procedure.2

PROCESS AND OUTLAWRY

Criminal as well as civil procedure is to some extent the result of standardising and formalising natural impulses. The criminal caught in the act is thus summarily dispatched after a brief altercation before a local court or bailiff. When a crime has been discovered the natural thing to do is to call for help and pursue the trail of the criminal. This is regularised as “hue and cry” and neglect to raise it is a serious matter; even if the diligence of the hue and cry does not result in a capture, the whole vill will be amerced; so too it is a serious offence to raise the hue and cry without justification. The neighbours ought to turn out with their weapons (specified in the Statute of Winchester3 ) and go from vill to vill. The criminal who is caught as the result of hot pursuit will be dealt with summarily as just described.

If an appeal was begun against an absent person, the preliminaries to outlawry began (and it took five successive county courts to complete the process). If an absent person has been indicted, the sheriff ought to arrest him, but it generally happened that arrest was impossible, and so once again the long procedure of outlawry began.4 The result of outlawry on criminal process is, in effect, a conviction; the outlaw is “attained” and forfeits his chattels, while his free land (after the King’s “year, day and waste”) will escheat. If captured, the outlaw could be hanged merely upon proof of the outlawry having been made.1 Anyone could capture him and kill him if he resisted. It needed a resolution of the judges in 1328 to save his life against anyone who took a fancy to kill him,2 and the forfeiture for outlawry was still preserved by the Forfeiture Act of 1870.

SANCTUARY

It quite frequently happened that in the meantime the accused had fled to a sanctuary. In general, this would be a local church or monastery; once there, the accused had the right to “call for the coroner”, confess to him, and abjure the realm within forty days. The coroner assigned the nearest port, and the criminal was allowed safe conduct thither, and had to take the first available passage abroad.3 Under Henry VIII he was also branded in order to facilitate his identification if ever he returned—which would make him liable to be hanged as a felon.4 Flight to certain great liberties, such as the palatinates, the liberties of St. Martin le Grand, of Westminster, and others, afforded much greater protection. In these places the King’s process did not run, in consequence of a “mixture of law and custom, grant and prescription, forgery and usurpation” which makes the history, as well as the legal foundation, of these greater sanctuaries very obscure.5 In such favoured places even the coroner could not enter, and the sanctuaryman was completely immune. The lords of these places enforced discipline, registered their new subjects and took an oath of fealty from them. The houses of Lancaster, York and Tudor struggled hard against these anomalies. Henry VIII abolished many, and substituted eight “cities of refuge”.6 Acts of Parliament availed but little, and many sanctuaries whose legal existence (if any) had been cut short, continued to flourish—like “Alsatia”—merely by virtue of gangster organisation and the absence of official police.

EXAMINATION

The old books make little reference to the examination of accused persons pending their trial, and in ordinary cases there was probably none; in cases of political or social importance, however, there are indications that prisoners were examined, and occasionally tortured. Coke’s attitude towards the matter throws a curious light upon his own and his age’s point of view. In the preliminaries to the trial of Edmund Peacham for treason, the prisoner had been examined under torture by Bacon (then Attorney-General), who communicated the results to Chief Justice Coke, who would normally have tried the case. Coke properly protested, and Peacham was therefore tried by the Chief Baron. That was in 1614. The very next year, however, Coke himself did much of the investigation and collecting of evidence against the Earl of Somerset, whom he then proceeded to try for murder.

For lesser folk there was a statutory procedure of examination by justices of the peace. From quite early times, a coroner had the duty of making inquiries in certain cases, both by his jury and by examining on oath persons who could give information. In 1554 a statute1 required him to commit to writing the results of his investigation, and at the same time extended the principle to justices of the peace. They were therefore empowered to examine prisoners and those who proceeded against them, and to write down the material portions of what they said for use subsequently at the trial. Stated in this way, it would appear that the act intended to introduce a reform of great importance into criminal procedure. It did effect an important reform, but apparently by accident, for the motive of the enactment was, it seems, to prevent collusion between justices and criminals;2 it was alleged that justices were much too easy in bailing suspects and so the act required them to write down the statements of the prosecutor, the prisoner and the witnesses before bailing them—evidently to prevent a matter being stifled at its inception, and to prevent abuse of the power of admitting to bail. The next year another act3 extended the procedure to cases where the prisoner was not bailed but committed, and soon it became apparent that an important novelty had been introduced, albeit obliquely, into criminal procedure.

These examinations were purely ministerial, and need not be taken in the presence of other parties. The effect was to turn the justice of the peace into something between a detective and a juge d’instruction. The creation of a professional police force in 1829 and succeeding years relieved the magistrates of the duty of investigation, and so it was possible to change the character of their preliminary examination; in 1848 Sir John Jervis’ Act4 required that witnesses should be examined in the prisoner’s presence, and should be liable to cross-examination by him. The accused was permitted by the act to call witnesses who were to be treated in the same way, and was entitled to have copies of the depositions. If the proceedings raise a “strong or probable presumption of guilt” in the minds of the magistrates, they are to commit or bail him for trial. The magisterial inquiry has thus become, in form at least, although not in substance, a judicial proceeding.

TRIAL BY JURY

Of arraignment and the prisoner’s plea, and the imposition of jury trial sanctioned by the peine forte et dure, we have already spoken.1 Of the old procedure by “appeal” we have likewise given an example.2 It is now time to consider the proceedings on the occasion of a jury trial.

There is not much light on this subject in the mediaeval sources. The information they give us is generally concerned with state trials and there is the obvious difficulty of deciding how far they represented normal practice. There are rules about the challenging of jurors which Bracton lays down in rather general terms3 —rules which he seems to have derived from the canonist rules which disqualified witnesses on the ground of relationship, interest, etc. Bracton also recommends the discreet justice to examine the jury rigorously on the grounds upon which their verdict is based.4 By means unknown the rule arose, sometime between Bracton and Fortescue, that the prisoner could challenge up to thirty-five jurors peremptorily.5 Here it is well to notice the difficulty which Sir James Stephen feels;6 if the jurors were witnesses (as he believed), how strange it is that a prisoner can peremptorily exclude up to thirty-five of them. The answer clearly is, that jurors never were witnesses but were rather representatives, as we have seen. Challenges were freely used in the middle ages, both in civil and criminal cases, and leave their mark on the record in the words “the jury being elected, tried and sworn say upon their oaths that . . .” A juryman who was excluded from the jury might yet be competent as a witness to inform the jury.7 Indictors, as we have seen, were removable by challenge from a petty jury since 1352.8 The number of peremptory challenges in trials of petty treason and felony (but not high treason) was reduced from thirty-five to twenty in 1531.9

Fortescue says little of criminal trials, save the wide powers of challenging jurors, both peremptorily and for cause; he leads us to conclude that the proceedings in the presence of the jury are analogous to those on the trial of civil issues—the swearing of witnesses, their examination and so forth.

A century after Fortescue, we have a fairly full description of a criminal trial by Sir Thomas Smith.1 He tells us of the arrangement of the court room, the criers, the proclamations and the impanelling of the jury. The case opens with the justice who committed the prisoner bringing into court the depositions taken under the act of Philip and Mary, which are read—from which it will be seen that they already serve the new purpose (for which they were not designed originally) of serving as evidence. The prosecutor, the constable and the witnesses are then sworn, give their evidence, and seem to engage in a lively altercation with the prisoner which lasts until “the judge hath heard them say enough”. He then charges the jury, although Smith does not distinctly say that he sums up. They then proceed to the next case, and by the time two or three more cases have been heard, the jury will protest that their memory is sufficiently taxed, and will ask to retire to consider their verdicts.

The main features of the Elizabethan criminal trial have been admirably summarised by Sir James Stephen in these words:

These remarks seem a fair summary, save perhaps that it ought to be mentioned that bail was granted freely, and so there was some opportunity for preparing a defence in such a case.

REPRESENTATION BY COUNSEL

It was a very ancient principle that no counsel was allowed to persons charged with treason or felony against the Crown; counsel were allowed in an appeal as this was brought by a private person and not by the Crown. A slight relaxation was made in the late fifteenth century when it became general to allow counsel to argue points of law,1 which at that time were generally objections to the indictment. The origin of the rule seems to have been the fact that counsel was hardly necessary. As we have seen, in Bracton’s day the court took charge of the proceedings, and viewed indictors, prosecutors, jury and prisoner with impartial distrust. There was little that required expert knowledge until indictments became technical documents, and when that point was reached, counsel for arguing them was allowed almost at once. When the use of witnesses was more clearly understood, and a technique of examining them developed, the situation was again materially altered, and the prisoner was at a disadvantage in attempting to cross-examine when the case for the prosecution was sprung upon him, and his own defence still unprepared. This time the law did not bring its own corrective, and made little attempt for a long time to meet the changed circumstances.

From 1640 to the Revolution there are unmistakable signs that public and also professional opinion was dissatisfied with the existing trial practice in criminal cases, and the Revolution was quickly followed by reforms.2 In 1696 momentous changes were made in trials for treason. The accused was allowed counsel, a copy of the indictment, and to bring witnesses on oath,3 but not until 1837 was counsel allowed in cases of felony.4

WITNESSES

From the earliest days of the jury, witnesses were used, although by differing procedures. At first the jurors themselves might have first-hand knowledge of the facts, or they might obtain that knowledge by private inquiry. It was later possible to bring witnesses to give testimony before the jury, but they did so at some risk. As late as 1450 it was considered normal for the jurors to go to a man’s house and ask him what he knows about a matter, but if he goes to the jury, it is maintenance.5 Honest witnesses were therefore reluctant, although in Chancery proceedings a useful method was devised by summoning them by sub poena, which enabled them to testify without fear.6 At common law witnesses were not compellable, and no process issued against them. In civil proceedings counsel were so closely identified with their principals, and so great an obligation rested on them to tell the truth, that the allegations of counsel seem to have been treated as evidence.7 Even Coke was moved to say that the evidence of witnesses to the jury is no part of a criminal trial, for trial is by jury, not by witnesses. The jury was indeed inscrutable, and trial by witnesses had been distrusted for some five hundred years in Coke’s day.1

Nevertheless, the importance of witnesses steadily grew in spite of this tendency to what must have been already mere archaism. A great landmark is Elizabeth’s statute2 which established a process to compel the attendance of witnesses and made perjury by them a crime. This act seems only to touch civil proceedings, but as we have already noted, witnesses could be bound over to appear under the second act of Philip and Mary,3 to testify against the prisoner, and so the Crown could compel its own witnesses.

A curious sign of the new spirit appears when courts began to allow prisoners to produce witnesses, although refusing to let them be sworn. A greater advance is to be found in an act of Elizabeth creating a new offence of “embezzling” arms from royal arsenals. This act concludes by allowing a person charged under it “to make any lawful proof that he can, by lawful witness or otherwise” for his defence.4 So too under an act of 1606 making certain felonies done by Englishmen in Scotland triable in England, prisoners are allowed to produce witnesses, who shall be sworn, for their defence.5 The same privilege was allowed on trials for treason in 1696, and in 1702 the legislature finally extended the principle generally by enacting that in treason and felony the defence may bring witnesses and have them sworn.6

EVIDENCE

The oldest portions of our law of evidence are concerned with the deed under seal, which for a long time was the only type of evidence to which it paid any regard, and which it has always treated with special respect. Somewhat analogous to this were the transaction-witnesses of Anglo-Saxon law, who had a somewhat similar function in criminal law. Just as the deed was a solemn evidence of civil obligation, so the transaction witnesses were pre-ordained evidence which could be used if need be as a defence to an accusation of theft. This type of evidence was in constant use during the middle ages, and combined neatly with the desire of lords to restrict buying and selling as far as possible to markets and such-like public occasions when the lord got his market-dues and the parties obtained the protection of publicity in their dealings.

Evidence given by witnesses to a jury, as we have seen, was for a long time an informal adjunct to legal proceedings rather than part of their essence. It is not surprising, therefore, that there was hardly any law governing its admissibility—evidence of previous convictions, for example, was admitted without comment.1 An old phrase alleging of two witnesses that one heard and the other saw occasionally appears, and in treason cases there was the statutory rule requiring two witnesses.2 This was perhaps of foreign origin, and English law did not adopt the general principle of merely counting witnesses.

The prisoner himself could not give evidence.3 The statements he made in court as he conducted his defence were not made upon oath, and the questioning he underwent in court in the sixteenth century based upon the magistrates’ examination, though often searching, did not result in sworn evidence by him. Moreover, the examination itself was inadmissible if it were made upon oath, for an oath was regarded as involving some degree of compulsion. Questioning prisoners at the trial fell out of use at the Revolution, but prisoners were still allowed to make statements in the course of the trial, and when they had counsel, such statements were often made on their behalf.4 In 1848 the magistrates’ examination was, by statute,5 to be preceded by the warning that it might be used in evidence, and that the prisoner need not make a statement unless he so wished. As a result, prisoners could not now be questioned either before or at the trial. Such a state of affairs, as Sir James Stephen observed,6 did not necessarily work injustice if the defence was carefully prepared and skilfully conducted; but in practice most prisoners could not afford an elaborate defence, and for them the system often meant disaster. It was felt that expense and time could be saved if prisoners could give evidence on oath, and that this was the only practicable course in many cases if the real defence was to be elicited at all. A series of acts during the nineteenth century sponsored by Lord Denman and Lord Brougham enlarged the class of competent witnesses in civil cases, but not until 1898 were accused persons made competent (but not compellable) witnesses at their trial.7 Compulsory examination on oath has never been applied to prisoners except in the Star Chamber and the Court of High Commission.8

BURDEN OF PROOF

Rules of evidence and procedure (and especially those which are now obsolete and so outside our personal observation) cannot be judged apart from their actual working, and when that practical aspect of them is investigated, the result may be surprising. For example, the rule that the burden of proof lies upon the prosecution is now considered as a valuable safeguard for the accused. As at present administered, this is true, but it has not always been so. In times past a corollary was drawn from it to the effect that as the prosecution had the burden of proof the defence need do nothing;1 hence the defence could not call witnesses nor engage counsel. Both were superfluous, for if the Crown proved its case, that was an end of the matter; if it did not, the failure would be apparent in spite of the silence of the defence.

On the other hand, the canonical system, as applied in the eighteenth century to clergy, and to laymen who had been tried under the Church’s criminal jurisdiction, adopted the principle that it is for the accused to prove his innocence. This sounds harsh to modern ears, but the logical implication was drawn that since the accused bore a burden of proof he was entitled to call witnesses for his defence. The prosecution, having a merely passive rôle, could call none.2 Acquittals consequently followed with monotonous regularity.

SUMMARY TRIAL

Very gradually the legislature ventured to make some offences triable “upon examination” by justices of the peace, that is to say, without a jury. This was a serious break with common law tradition at several points. An early experiment in this direction was made in the reign of Henry V, when justices of the peace were empowered to examine both masters and labourers who had transgressed the statutes of labourers “and thereupon to punish them upon their confession as if they had been convicted by inquest”.3 It would seem that, if they did not confess, the justices could not proceed further without a jury. A statute of Henry VII apparently extended this power of trial on information by the Crown without jury to all statutory offences less than felony.4 This statute was repealed5 at the accession of Henry VIII, but new statutes were made embodying the principle, and became very common under the Restoration, dealing with a vast number of petty offences. By 1776 a leading practice book devoted nearly two thousand pages to the offences triable by this procedure. Gradually it became customary for such statutes to grant an appeal to quarter sessions, but in the vast majority of cases there was no appeal.1

BENEFIT OF CLERGY

This ancient and curious privilege dates from the twelfth century.2 Judging from the Anglo-Saxon laws, clergy were generally amenable to the same jurisdictions as laymen, although they had preferential treatment in the matter of proofs and penalties. The problem of competing jurisdictions became evident after the conquest. The Norman kings asserted the principle that clergy who also had a lay capacity (as earls and feudal tenants) could be tried by the King in respect of their misdeeds committed in their lay capacity. The Constitutions of Clarendon (1164), coming immediately in the midst of the conflict between Henry II and Becket, profess to perpetuate the practice of Henry I’s reign—a “criminous clerk” was to be charged in the King’s Court, tried by the Church and degraded if guilty, and returned to the King’s Court for punishment as a layman. The murder of Becket produced such a psychological revulsion, however, that the Crown made no further attempt to enforce the Constitutions of Clarendon, and surrendered criminous clerks unconditionally to the Church.

That was the high-water mark of ecclesiastical privilege; the rest of the history is the story of its slow decline. There seems no sign in Bracton of that decline, but soon after his day it becomes apparent. Clergy were always charged in the first place before the secular court, and many of them immediately claimed their clergy; others, however, preferred to take their chance with a jury, and only demanded their clergy if the verdict was against them. The royal courts clearly preferred this latter course, and eventually came to insist upon it; even if clergy were claimed immediately upon arraignment, the lay court would proceed to a verdict before relinquishing them as “clerks convict”. In the meantime the convict’s property is taken into the King’s hand to abide the event in the Church Court. By 1352 the clergy are complaining that clerks have been hanged by judgment of secular courts, and the Crown admitted that things had moved too fast, and promised that “clerks convict” of petty treason or felony should be handed over, the Church in return promising to imprison them and punish them duly.3 By this time, moreover, the usual test of clerical status was ability to read, although for a time some regard was paid to the prisoner’s dress and tonsure. Once in the ecclesiastical court, various modes of trial were in theory possible, but in practice it was almost universally compurgation, or “canonical purgation” as it was technically called. With the decline in estimation for this form of trial a serious situation arose, for acquittals were much too frequent, the trial becoming little more than a formality. Even if the clerk failed in his purgation, there was considerably difficulty in preventing him from escaping out of the bishop’s prison.

The whole affair thus became highly artificial, and queer results sometime followed. Thus, a married man could have the benefit (for clerks in the lowest orders were not excluded from marriage). But a bigamist lost his clergy, and a bigamist was a man who had (a) married twice, or (b) married a widow. Thus a married man’s life may depend on whether his wife was a virgin when he married her, and the Court can “find that out straight away from a jury”.1

In 1376 a curious petition in parliament observed that bigamists were now numerous, “by reason of diverse pestilences”, having married twice, or having married widows. Others had avoided this perilous condition by not re-marrying after their first wife’s death, but were living in sin. They suggest that benefit of clergy should not be lost in such circumstances. To this touching appeal by bigamists who evidently anticipated that they would some day commit felony, the crown replied with a short refusal.2

In 1490 it was enacted that a clerk convict should be branded,3 for it had become a rule that the benefit could only be used once; this would make enforcement of the rule easy. The Reformation would at first sight seem to have been a convenient moment for abolishing so troublesome a relic of Rome, but in fact policy fluctuated. It was actually extended in 1547 to bigamists, and to peers of the realm whether they could read or not,4 and peers were excused the branding, too; it was further extended partially in 1624, and completely in 1692, to women.5 In 1707 all the world were admitted, by the abolition of the reading test, or “neck verse”.6

As a matter of fact, all this means that the nature of benefit of clergy had undergone a radical change. In 1576 it was enacted that clerks convict should no longer be handed over to the ordinary, but should be forthwith discharged, and so the last connection of the benefit with either Church or clergy was severed, but the same act authorised one year’s imprisonment before discharge, at the discretion of the court.7 Even before the Reformation, Parliament had ventured to enact that petty treason should no longer be clergyable (perhaps justifying its boldness on the ground that it was the statute de clero1 which had made it so). After the Reformation a long line of statutes made murder, piracy, highway robbery, rape, burglary and a host of other crimes non-clergyable. The result was important. The gap between felony and misdemeanour was much too large, and by using the benefit of clergy Parliament was able to make some crimes capital for a first offence (non-clergyable) and others capital only for a second felony (clergyable). Thus a rough classification of crimes into more than the two mediaeval categories became possible. This process was carried further by developing the policy of the Act of 1576, and condemning persons convicted of clergyable larceny to transportation for seven years. Thus the survival of clergy greatly modified the harshness of the penal law and permitted the growth of a graduated scale of punishment.

Benefit of clergy was abolished in 1827, but its ghost continued to haunt the law until less than a hundred years ago.2

CHAPTER 2

THE FELONIES

Even in Anglo-Saxon times, as we have seen, the Crown began to establish a list of pleas over which it had particular rights. Some of these became, after the Conquest, felonies. Not all of them, however; the breach of the King’s peace, for example, became steadily less serious as the peace became further extended. As a serious crime it was confined to the days when the peace was given (as it was also in France) by a solemn diploma under the royal seal.

Felony is a feudal conception particularly applying to the breach of the fidelity and loyalty which should accompany the feudal relationship which has been consecrated by homage. Its characteristic punishment is therefore loss of tenement—escheat. On the continent felony was often confined to this class of crime, but in England, by means unknown, there came “a deep change in thought and feeling. All the hatred and contempt which are behind the word felon are enlisted against the criminal, murderer, robber, thief, without reference to any breach of the bond of homage and fealty”.1 The transition may have been helped by the fact that already in Anglo-Saxon law there were crimes which put their author at the absolute mercy of the King, their property, limb and life. The King’s “great forfeiture” may thus have caused these crimes to be equated with true felony which resembled it. In any case, this extension of the meaning of felony must have been welcome to lords, for it was they who reaped the harvest of escheats (subject always to the King’s wasting the tenement for a year and a day).

The list of felonies during the middle ages was always short, and the definitions of the crimes within the list were generally narrow; they almost always were subject to benefit of clergy, and could always be prosecuted by appeal. Indeed, the appeal is distinctly an appeal of felony, and at least one crime, mayhem, was a felony if prosecuted by an appeal, although it was not a felony upon indictment.1

TREASON

The history of treason in the middle ages is as distinctive as the nature of the offence. It is one of the very few crimes which were defined by statute during that period; and it is one of the equally few crimes whose scope was extended by “construction”. Unlike treason, the mediaeval felony was (generally speaking) neither statutory nor constructive.2

High Treason was never clergyable, and more than one prelate has paid the penalty; for a time, however, there were certain sanctuaries which claimed the extraordinary privilege of protecting traitors. The definition of treason before the statute was certainly wide, including the murder of royal messengers, and apparently even highway robbery. Such extensions fell heavily on lords who lost their escheats (for these offences were capital felonies even if they were not treason). The matter was therefore raised in Parliament with the result that the famous statute of treasons in 1352 laid down a definition, coupled with the proviso that any further definitions in doubtful cases shall be made in Parliament. The statute makes treason to consist in3 —

all of which involved forfeiture of land and goods to the Crown. The statute further defined “another sort of treason” (which was generally called petty treason) as being—

• “the slaying of a master by his servant;
• the slaying of a husband by his wife;
• the slaying of a prelate by his subject, secular or religious.”

These were to involve escheat, and not forfeiture, of lands. Then follows the provision for the parliamentary declaration of treason in future cases not covered by the act, and a declaration that riding armed, robbery, kidnapping for ransom and the like are not treason, and a rescission of recent judgments to the contrary, with the restoration of the forfeitures already exacted by the Crown to the lords of the fee as escheats. The motives of the statute are patently to prevent the loss of escheats by treating felonies of certain sorts as treason. This is made perfectly clear, moreover, in the petition which led to the statute.1 There is no trace of political theory in the act.

It is impossible to enter here into the large number of judicial and statutory changes which took place in the ensuing five centuries of history. Many times of unrest produced statutory extensions which were repealed when quiet was restored, but all through the succeeding ages it has been felt that treason should, wherever possible, rest solely on the act of 1352. A few of these later statutes have become permanent or are otherwise remarkable. Thus there is the famous act declaring that service with a de facto king shall not be treason to the King de jure,2 and the act requiring two witnesses of the overt act or acts alleged in the indictment.3

The act of 1352 may itself have hampered the orderly growth of the law relating to offences against public security by including so few of them in the definition of treason, making no provision for the lesser (but still serious) crimes. It remained for the Star Chamber and the Legislature to introduce some order into a tangled and dangerous mass of law by separating from treason such crimes as riot, sedition, espionage, incitement to mutiny, and the like. Similarly, the petty treasons were reduced to ordinary murder in 1828 (9 Geo. IV, c. 31).

MURDRUM

Murder is the product of many different lines of development. Slaying wilfully or accidentally had the same consequences in Anglo-Saxon law—the offender must bear the feud, or else he must provide the sum of money amounting to the dead man’s wer. Even before the conquest, however, deliberately planned assassinations came to be distinguished and put into the list of Crown pleas as forsteal. The original sense of this word was lying in wait to ambush the victim. After the conquest this is expressed in various terms in French and Latin, but frequently takes the form of assault purpensé, or assultus premeditatus. In time this yields before malitia excogitata, and so introduces us to the very troublesome word “malice”.4 Numerous pardons for accidental slayings explain that the offence was not done of malice aforethought, but on the positive side the word was used very vaguely; it seems impossible to maintain that it signified spite or hate, or indeed any definite allegation of intention. It is best regarded as a traditional form which only occasionally coincided with the natural meaning of the word. The Anglo-Saxon forsteal, like much else of the older legal language, survived only in local courts, and like its surroundings gradually sank to a petty significance. Forsteal thus became “forstall”, an offence which consisted in intercepting sellers on the way to a market and attempting to raise prices artificially.

The word “murder” has also had a devious history. Its original sense is the particularly heinous crime of secret slaying. After the conquest it was observed that Normans were frequently found dead under mysterious circumstances, and so William I enacted that if anyone were found slain and the slayer were not caught, then the hundred should pay a fine; this fine is a murdrum.1 The practice soon grew up of taking inquests and if it were presented that the dead man was English, then the fine was not due. In 1267 it was enacted that accidental deaths should not give rise to murdrum,2 and finally in 1340 presentment of Englishry and murdrum were abolished.3 Henceforth the word slowly tends to get linked up with “malice aforethought” and so we get the classical formulae describing the crime of murder.

Suicide (especially if it were done to avoid capture) involved forfeiture of chattels, and so it was argued backwards that it was a felony.

MURDER AND MANSLAUGHTER

In the thirteenth century misadventure and self-defence were still recognised, not so much as defences to a charge of homicide as circumstances entitling one to a pardon; but if these defences were not involved, there was but one other case, and that was homicide. Whatever might be urged in mitigation of this offence could only be urged before the King as part of an appeal for pardon; it could not be considered by a court of law.4 It is important to remember that the prerogative of mercy was the only point at which our mediaeval criminal law was at all flexible; hence pardons were issued with liberality for all sorts of felonies throughout the middle ages and long afterwards, and it is in the history of pardons, therefore, that the gradual growth of a classification of homicides is to be sought. A beginning was made in 1328 when a statute called in general terms, for restraint in issuing pardons,5 and in 1390 the Commons secured a statute which recognised certain pardons as issuing from the Chancery as a matter of course (no doubt cases of self-defence or misadventure); with these the statute contrasts pardons for “murders done in await, assault, or malice prepense”. In such cases pardons were subjected to almost impossible conditions.1 The pardoning power in other cases was not touched, and so the Crown retained its normal powers and procedure for pardoning homicide, except cases of what we may call wilful murder. The distinction becomes clearer in the Tudor reigns when benefit of clergy was being redistributed among the various crimes. Thus, James Grame wilfully murdered his master, Richard Tracy, on 9th February 1497 and then pleaded his clergy. An indignant Parliament was determined that he should hang, and so attainted him, and abolished clergy for his and all like cases of prepensed murder in petty treason.2 A number of such statutes followed in the reign of Henry VIII, and one of them3 uses (probably for the first time) the words “wilful murder”; from that date it is clear that the statutes have, in effect, divided the old felony of homicide into two separate crimes, “wilful murder of malice aforethought” which was not clergyable and therefore capital, and on the other hand, those homicides which were neither in self-defence, nor by misadventure. Some such division was obviously necessary, but unfortunately the boundary was generally sought in glossing the ancient formula “malice”. “Manslaughter”, as it came to be called, exercised the analytical skill of writers on pleas of the Crown for a century and more before very much order could be introduced, and even now serious questions as to the import of “malice” in murder have been raised.4

LARCENY

Few headings in criminal law have had so interesting a history as larceny. Its earliest form is naturally determined by the circumstances of agricultural life, and so the scope of larceny has gradually developed from the original type of cattle theft. We have already seen that the procedure derived from Anglo-Saxon times and remodelled as the appeal of larceny was merely a standardisation of the normal steps which would be taken upon the discovery of a theft of cattle—the hue and cry, the pursuit of the trail, and so on to summary judgment. One old distinction died away. This was the difference between manifest and secret theft. In Anglo-Saxon England, as in many early systems, the manifest thief fared much worse than the one whose guilt was only established after a lapse of time. No reasons seem to be evident for the rule in England,1 but some savages are said to adopt it as a special condemnation for those who are not merely thieves, but incompetent thieves. The distinction between grand and petty larceny is also ancient, although the explanation by a glossator of Britton that a man can steal enough to keep himself from starvation for a week without committing a major crime seems more modern than the rule; perhaps the gloss is under canonical influence, for the Church would not condemn a famished man for stealing bread.2

Bracton adopts the Roman definition of theft,3 but there has been some doubt whether contemporary English (or Norman) law really did look for an animus furandi, “intent to steal”. There are dicta by judges, statements by text-writers, and even miracles, attesting the rule that a man who takes another’s chattel, even without intent to steal, may be held guilty of theft.4 The burden of all of them is that a lord who distrains will get into trouble if his conduct is not scrupulously correct. That lesson had to be taught (and it has been learnt), but there seems no actual case where a distrainor who sold the goods was hanged. It would almost seem that these are stories told from the bench to assembled landlords and that the gruesome ending was merely in terrorem. Their ultimate basis, however, lies in the impossibility of expecting a jury to ascertain a person’s state of mind.5

The list of things which can or cannot be the subject of larceny has varied, and for centuries after the reigns of the Norman kings became steadily more absurd and confused. Wild animals were easily excluded, unless they were game on a private estate; deeds could be stolen under King John but not under Edward IV; Coke without any authority extended this exception to all choses in action and so it became a rule of the common law that the theft of a bank-note was not larceny. One judge even suggested that the theft of diamonds was not larceny because their value was dependent largely upon fancy. So, too, peacocks and sporting dogs were luxury articles without economic value. A huge mass of legislation has tackled all these points separately and with little reference to related points. Often the rules of benefit of clergy were employed in order to introduce some sort of gradation in larcenies and their punishment.6

QUASI-THEFT

The nature of larceny is expressed in the old charge that the thief “stole, took, and carried away”. This is clearly an old form derived from the simplest type of stealing, and was made the basis of the theory that larceny is a violation of possession. It covered the great majority of cases likely to arise in simple agricultural communities, but as society became more complex and newer forms of economic relationships became frequent, many sorts of crime escaped the old definition of larceny. Not until the reign of Henry VIII do we find much effort made to include them, and not until the eighteenth century is the legislation on the subject very extensive. Both in Normandy and in England there is some mention, even in the middle ages, of “quasi-theft”, and in Normandy it is clear that the conception was capable of filling many of the gaps in the old law of larceny. It included the use of false weights, measures and coins; concealment of wreck and treasure trove; refusal to replevy a distress; the use of forged bonds; usury; and removing boundary marks.1

Bracton occasionally uses the expression quasi-theft, but his list is not so extensive as it was in Normandy, for treasure trove and the use of false coins might involve a charge of high treason, and coinage offences soon became statutory felonies as well; weights and measures were governed by their own assize and were best dealt with (although that best was imperfect) locally;2 withernam became a serious offence, but separated from larceny owing to the need for special procedure; and the use of forged deeds in court (but not elsewhere) seems to have been dealt with summarily by the court which had been deceived.3 Bracton does use the idea of quasi-theft in connection with treasure trove,4 and more curiously still, in an argument that robbery is also larceny.5 The Mirror of Justices would have it that a great many sorts of fraud and dishonesty were (or ought to be) larceny,6 but it is plain that they were not. Usury (a quasi-theft in Normandy) was left to the Church in England.

How, then, were the gaps in the law of larceny supplied in practice during the middle ages in England? We suggest that the action of account will give the clue. This action was available against bailiffs and also against receivers of money or goods to the use of their masters; it was also used commonly between partners and joint traders of various sorts, so that a great many business relationships fell within its scope. The statutory process upon it was remarkable, and indeed unique. Persons entitled to an account from “servants, bailiffs, chamberlains and all manner of receivers” were allowed to appoint auditors, and if the accountant was in arrear, the auditors could commit the accountant to prison. There he was to lie until the account was discharged; if it was disputed and the accountant “could find friends” the matter could be reviewed in the court of exchequer.1 This drastic procedure whereby imprisonment could be ordered without a court or trial, at the discretion of purely private persons (whom Coke2 later had to call, nevertheless, judges of record), must have provided speedy sanctions against those who were later subject to the statutes on embezzlement and kindred offences.3

BREAKING BULK

Account, however, had its limitations and occasions arose when criminal sanctions were deemed necessary. An early example is to be seen in the curious case of breaking bulk.4 The facts were that a carrier entrusted with merchandise to be transported to Southampton broke open a bale and misappropriated the contents. There was much argument first in the Star Chamber and then in the Exchequer Chamber whether this was felony. A majority of the judges finally held that it was, influenced no doubt by the fact that the owner of the goods was a foreign merchant who took his stand upon his treaty rights and the law of nature. In short, it was politically expedient to punish the carrier for larceny, but the devious reasoning by which this was accomplished was a native product of some antiquity;5 it left its mark for centuries to come on the law of larceny.

STATUTORY CRIMES IN THE NATURE OF LARCENY

From the breaking bulk case it is clear that the great defect in the common law of larceny was the rule that larceny was a violation of possession; this, coupled with the rule that a bailee has possession6 permitted a great many fraudulent misappropriations to pass unpunished. The exception of cases where bulk had been broken depended on accident, and so the legislature was finally moved to intervene.

It began with the case of servants entrusted with their master’s goods who leave their employment, taking the goods with them, or who “embezzle” them while in service; an act of 1529 made this felony if the goods were of the value of forty shillings or more, but it excluded from its penalty persons under eighteen years of age, and apprentices.1 The statute therefore confirmed a tendency already apparent in case law2 to distinguish possession from “charge” (the control which servants have over their masters’ goods, which charge did not amount to possession, with the result that misappropriation was a violation of the master’s possession and so larceny). The use of the word “embezzle” in this and several later statutes dealing with theft from arsenals and government departments does not correspond with the present definition; it later gave way to the word “purloin” which commonly appears in statutes dealing with thefts from factories—and it is typical that separate trades procured legislation covering their own machinery and operations instead of a general enactment about theft. There was, for a long time, therefore, not merely the law of theft, but various bodies of law of theft from weaving sheds, spinning mills, iron works and the like, which were not uniform.

“Embezzlement” in its modern form appears in the statute law in 1799 which reached “servants or clerks” who embezzle effects received in the course of their employment;3 in 1812 it was necessary to extend this to brokers, bankers, attorneys and other agents who were neither servants nor clerks;4 the frauds of factors were made criminal in 18275 and in 1857 trustees and bailees were reached.6

Most of these statutes were the immediate result of some unusually disturbing decision of the courts, and as a rule went little further than reversing that particular decision. The sum total was a frightfully complicated mass of law containing many artificial distinctions which made the work of a prosecution especially difficult, for it was often impossible to say which of several minutely differing crimes might eventually appear from the evidence. Indictments therefore became immensely long and technical documents as they endeavoured to provide for all eventualities.

Successive Larceny Acts of 1827,7 1861,8 and 1916,9 consolidated this vast mass of statutory exceptions to the common law, but did not provide a definition of larceny, as Sir James Stephen remarks.

OTHER COMMON LAW FELONIES

Every one of the common law felonies pursued its separate history with little reference to the others. Robbery gradually approached larceny, and blackmailing became a constructive robbery (and constructive felonies were rare) before it was made criminal by statute.1 Burglary had some curious statutory adventures, especially when it was accompanied by putting inmates of a house in fear.2 Rape, like several other crimes, could be made the subject of an appeal of felony, in which case it was variously punished, sometimes with mutilation, rarely with death. If no appeal was brought the crown could prosecute, and then the penalty was fine and imprisonment, and the offence seems in practice to have been dealt with rather leniently until 1275 when a statute prescribed two years’ imprisonment—one of the first statutes to prescribe a fixed term.3 Ten years later another statute brought a drastic change of policy by making rape a capital felony both on appeal and on indictment.4

The Larceny Act, 1861, was one of a group of consolidating acts passed in that year which repealed and consolidated the results of hundreds of statutes. Criminal law is very largely statutory, and periodical revision is essential where large numbers of acts dealing with comparatively minute sections of a subject are constantly being passed. A larger scheme was soon proposed. The application of English law in suitable circumstances in India made it desirable to “restate” it (to use a modern expression) in a form clear and compact enough to be intelligible in a distant and very different land. An Indian Penal Code was drafted by Lord Macaulay and a quarter of a century later was enacted as law in 1860. In 1878 a draft Criminal Code, drawn by Sir James Fitzjames Stephen, was introduced into Parliament, but subsequently referred to a royal commission. It was not proceeded with, but from time to time large topics of criminal law and procedure have been codified, and recodified, in the course of the last two generations.

THE RECOVERY OF STOLEN GOODS

As long as the appeal of larceny was in common use, the appellant recovered the goods if his appeal was successful—recovery being, in fact, one of the main objects of the procedure. Indictment was felt to constitute a rather different situation. The discovery of the thief was to the credit of the grand jury, not of the loser; the accuser was the Crown, not the loser. Even an appeal might be quashed if it had not been brought with considerable diligence, and if none were brought at all, it was felt that the owner ought to lose his claim.

The felon forfeited his chattels to the King, and if the stolen goods were among them, they too went to him, unless by a prompt and successful appeal the owner had recovered them.1 If the thief had been convicted after indictment then clearly the owner’s remissness had extinguished his claim. From this followed the plausible (but not strictly accurate) deduction that a thief acquires property in the goods.2 This seems to have been the law in the early fourteenth century and it remained law until it was enacted in 1529 that a writ of restitution should issue after conviction on indictment in the same way as it issued after conviction by appeal.3

There was, however, another aspect of the appeal. It could be brought against anyone found in possession of the goods, and a successful appellant could recover his chattels in this way from one who was not a thief; in other words, purchase in good faith would serve as a defence of the purchaser’s neck, but it would not give him title against the owner. Our earliest plea rolls are quite clear on the point. There was in early times a tendency to treat secret sales as in themselves suspicious, and so this defence is often one of purchase in market overt. Towards the end of the middle ages, there was a tendency for the privilege of market overt to be enlarged, and to allow a bona fide purchaser in market overt even to acquire title in stolen goods, but this development was checked by decisions that the statutory writ of restitution would lie even against such a purchaser.4

RECEIVING STOLEN GOODS

There was clearly a strong popular feeling that receiving stolen goods ought to be a felony, but it took some centuries before the legislature finally accepted that view. As an appeal of felony could be brought against any possessor, it seemed to suggest that he could be properly regarded as a felon, and it was certain that the receiver of a felon (although not of the goods) could be hanged as an accessory. When this is coupled with the fact that stolen goods generally ended up as forfeit to the Crown, it will be seen that receiving stolen goods looked very much like a felony. In the twelfth century the possessor of stolen goods, if of ill-fame, was sent to the ordeal;1 in 1219 the receivers of a thief (but not of the stolen goods?) were hanged in circumstances which brought an amercement upon the judges;2 in 1221 some receivers abjured and others were hanged;3 late in the century a formula book treats “receiving larcenously” as a plea of the Crown.4 We read of an appeal of receiving stolen goods in 1291,5 and the hundred court of Maidstone certainly hanged a woman in 1300 for receiving stolen goods, the only objection raised when the justices in eyre went into the matter twelve years later being that she had received the goods in one hundred, but was convicted in another.6 As late as 1358 a man was indicted for receiving, and tried for the offence on the assumption that it was a felony.7

In the middle of the fourteenth century, however, the superior courts adopted a policy of strictly defining the various crimes, and even restricted the already narrow scope of larceny. Hence we find in 1351 and 1353 that appeals of receiving stolen goods are no longer admissible.8 There was uncertainty under Elizabeth,9 and eventually parliament began to move, and made receivers of stolen goods accessories10 (those who received the thief himself were of course accessories at common law). This step did not advance matters very much, for even accessories had many chances of escape, especially in the rule that they could not be tried until their principal had been convicted.11 In the next century this line was abandoned and receiving was made an independent misdemeanour12 in 1707 and an independent felony13 in 1827.

ATTEMPTS

It was tempting to “take the will for the deed” and to punish attempts as if they had been successfully accomplished, but the temptation had to be resisted; our mediaeval common law was ill-equipped as yet for investigating a prisoner’s state of mind, and Bereford was not alone in his distrust of the tendency.1

CHAPTER 3

MISDEMEANOURS, TRESPASS AND TORT

Anglo-Saxon law knew neither felony or misdemeanour. In so far as it classified crimes at all, it was into “emendable” and “botless” crimes, and the latter became in most cases the felonies of later law. Even after the Conquest the idea of botless crimes still flourished, and the Norman kings sometimes enacted that a particular offence would be visited with the King’s “full forfeiture”, and so the heavy penalty of loss of chattels might be inflicted for crimes which fell far short of felony. Henry I had to abandon this, and in his coronation charter promised what seems to be a return to the Anglo-Saxon system of pre-appointed fines or wite.1 From the rolls of Henry III, however, it is clear that the King’s courts once again used a wide discretion, this time in committing offenders to prison, with the understanding that the imprisonment would normally be commuted to a fine.

Fines were so common, however, even in civil proceedings, that they could not be regarded as typical of misdemeanour, and in fact criminal law was (apart from statute) practically confined to the felonies. This becomes all the clearer when it is remembered that most of the characteristics of criminal proceedings did not attach to misdemeanours. Thus they were not subject to benefit of clergy, nor to attaint of blood and its accompaniments, escheat and forfeiture; nor did the Crown use its oppressive power of forbidding counsel and sworn witnesses to the accused; on the other hand, the accused did not have the protection afforded him in felony trials of peremptory challenges to the jury. All this seems to indicate that the Crown regarded prosecutions for misdemeanours as being more akin to civil litigation than to trials for felony. It is not surprising, therefore, that misdemeanour and tort together occupy a large field where it is impossible in many cases to assign to each its severalty.

TORT IN THE THIRTEENTH CENTURY

An examination of the early plea rolls indicates that there was a very wide field of tort in the reigns of John and Henry III.1 As these are cases in the King’s Court it is natural that most of them are concerned with torts to property, and especially to feudal interests, but nevertheless there is a large variety of them. The form is almost universally a summons or attachment to show quare, why, the defendant had damaged the plaintiff—in other words, the form which soon became typical of trespass. Some of these torts were litigated through the form of an assize, such as the assize of nuisance, but others continued in later years as trespass (for example, impleading a person wrongfully in Court Christian) or case. Early in the thirteenth century this type of action is much more common than the more familiar forms of trespass de clauso fracto, de bonis asportatis, and assault.

MISDEMEANOUR IN THE THIRTEENTH CENTURY

At this moment it would seem that a great deal of minor crime was dealt with in the local courts. The King’s Court was not interested in that sort of work, and even when royal justices went on tour, they seem mainly concerned with real property matters and felony only, as may be seen from an examination of Lady Stenton’s recent volumes of Eyre Rolls published by the Selden Society.

Late in the century several changes take place. The writs quare were extended to cases which would now be described as trespass; some of these new cases were independent of feudal rights and overlapped the old criminal law. Thus mayhem, which was a felony if the injured party proceeded by appeal, now became a trespass if he preferred to bring his writ. It must always be understood, however, that at this date the action of trespass (as distinct from the wider group of quare actions) had a criminal element which was sufficient to allow such a shifting of mayhem to seem reasonable, and that the word trespass was sufficiently vague and wide for Bracton to say that all felonies were trespasses, but all trespasses were not felonies.2 The familar quare formula thus began a new branch with the addition of the words contra pacem which were characteristic of the new complaints of assault, breach of close and asportation of chattels. It is a significant illustration of Bracton’s dictum, that only certain varieties of quare action acquired the name of “trespass”, and that those varieties used the allegation of contra pacem, and covered situations which might be considered with equal plausibility as crime or tort. The investigations made by the baronial reformers3 show clearly that there was much oppression and injustice which the local jurisdictions failed to check, and it seems extremely likely that the King’s Court deliberately extended its quare actions so that they should cover these non-felonious “trespasses” of which Bracton spoke. The expedient was successful. It brought about the decline of the local courts and extended the work of the King’s Court, but it made a symmetrical scheme of either crime or tort impossible, for those trespasses in breach of the peace (which might well resemble misdemeanours) soon partook of the civil nature of the other quare actions, and so became finally torts.

The second change during this period was the creation of several statutory trespasses or “actions on the statute” as the old books classify them. For example, in 1275 a statutory writ of trespass against poachers1 gave punitive damages to the plaintiff, an arbitrary fine to the king, and three years’ imprisonment for the defendant; another statutory writ of trespass2 might involve even imprisonment for life as a “punishment”. The same procedure therefore gave a civil remedy to the plaintiff as well as punishment for the misdemeanour of the defendant.

MISDEMEANOURS AND INDICTMENT

Until recently, the only conclusion possible from the available evidence was that our mediaeval criminal law consisted of (a) the felonies, and (b) the few statutory misdemeanours of the sort just mentioned. Clearly this was much too meagre even for the needs of fourteenth-century England and the problem of discovering how the deficiency was supplied became very difficult. The solution suggested was that much of the law of misdemeanour was missing entirely, and that its place was taken by the civil action of trespass, which by this time was undoubtedly of considerable scope and importance. Tort had therefore taken over a great deal of the field of criminal law, and the civil aspect of trespass had ousted the criminal aspect.3

So difficult a hypothesis is now no longer necessary. It is now known from the Fine Rolls that by 1250 the action of trespass was rapidly getting common, and from the Trailbaston Rolls that at the death of Edward I petty larceny could be punished by imprisonment at the rate of a week for every penny stolen (three days for a halfpenny).4 Moreover, thanks to the fascinating volume of Proceedings before Justices of the Peace recently edited for the Ames Foundation by Professor Putnam, it is now abundantly clear that the justices of the peace handled an enormous quantity of business, and that trespasses in great variety were indicted before them. Consequently there is no longer need to suppose that the civil aspect of trespass had overshadowed the criminal: on the contrary, the indictable trespass is now known to have been the common and normal way of dealing with offences less than felony from the reign of Edward II onwards. The fact that the vast majority of these indictments were found and tried locally, and so appeared but rarely in the Year Books, resulted in their existence being unknown until the records of the justices of the peace were discovered and printed.

From the material now available it would seem that most matters which would support an action of trespass could also be laid in an indictment as constituting a misdemeanour,1 although as early as the reign of Edward I it was recognised that an action for damages, on the other hand, was a civil action.2 Moreover, matters which constituted a felony could be regarded alternatively as constituting a misdemeanour. Bracton had stated this long ago, and the new documents show that this was more than a piece of academic analysis, for the indictments bear him out, and in fact carry on the story down to the time of Marowe who wrote in 1503: “although a man has taken my goods feloniously, I can if I please treat that felony as a mere trespass, and so can the king if he pleases; for one wrong shall not be excused by another wrong.”3

THE SEPARATION OF CRIME AND TORT

So far, then, the story has been briefly this. Early in the thirteenth century the royal courts have a well-defined jurisdiction over felony, and a very large and varied assortment of torts which could be redressed by a quare action. Local courts, on the other hand, have a large jurisdiction over many sorts of minor offence which we may call misdemeanours (the word itself, however, is modern). In the middle of that century, trespass contra pacem puts the quare action to a new use, and begins to remedy certain violent offences by means of a civil action in the King’s Court, which may also result in fine and imprisonment in some cases. Trespass contra pacem was thus double in its nature, but soon it began to lose its criminal characteristics, perhaps reflecting the overwhelmingly civil atmosphere of the Court of Common Pleas. At the beginning of the fourteenth century the justices of the peace were becoming the principal jurisdiction for criminal matters, and in their sessions the indictable trespass is as conspicuous as the civil trespass was in the Common Pleas; consequently, there was no gap in criminal law forcing litigants to use civil remedies for lack of criminal ones. The contrast between indictment and original writ thus corresponded nearly enough with the distinction between crime and tort. Parliament in the fourteenth century realised this. Instead of adding “punishments” to actions of trespass (as it had done under Edward I), it created new offences less than felony by making them indictable as trespasses under Edward III and his successors—riot, forcible entry, maintenance and labour offences are typical examples. Early in the sixteenth century the word “misdemeanour” served to distinguish the indictable from the actionable trespass. It is, of course, characteristic that the distinction should be procedural rather than substantial.

THE STAR CHAMBER

The Star Chamber had equal influence with the legislature in developing the field of misdemeanour, largely, no doubt, because an old tradition (reinforced by many statutes) excluded the council, and all similar authorities, save the ancient courts of the Crown, from jurisdiction over felony, which involved judgment of life and loss of the sacred freehold. But just as the Common Pleas did not trouble to distinguish civil from criminal law when it appropriated a new field with the writ of trespass contra pacem, so the Star Chamber in turn administered civil and criminal justice simultaneously in dealing with its expanding list of “Star Chamber cases”. Forgery, perjury, riot, maintenance, fraud, libel and conspiracy were the principal heads of the Star Chamber’s jurisdiction according to its clerk, Hudson. Even crimes which were treason or felony at common law might be punished in the Star Chamber as high misdemeanours, while it claimed the right to punish as crimes acts which escaped the existing classification. It also developed the principle that an unsuccessful attempt might itself be criminal.

This development took place at a fortunate moment, for the manipulation of rules relating to pardons and benefit of clergy was at the same time introducing more variety into the common law system. When the Star Chamber was abolished, the King’s Bench realised that much of its work was of permanent value, and so a great deal of its law of misdemeanours finally passed into the common law.

THE FIELD OF TORT

The field of tort was by no means extensive until the last century, and consequently its development had not reached a very advanced stage. Much of it was also annexed to neighbouring provinces with the approach of modern times. Trespass de clauso fracto and de ejectione became part of the law of property, and deceit, with its derivative assumpsit, became one of the roots of the law of contract. The rapid prominence and growth of the law of tort in the last few generations is clearly associated with the sudden mechanisation of contemporary life, and with the growth of large and wealthy businesses (necessarily carried on through fallible servants and agents) engaged in finance, insurance, transport and an endless variety of enterprises which are productive of torts and tort litigation. There can be no doubt that the universal practice of insurance has provided the superior courts with thousands of cases which would probably have escaped the reports if parties had no other resources than their own in contesting them.

TORT AND THE FORMS OF ACTION

Although in our own day it has become possible to speak of tort as a homogeneous body of law, it is still useful at times to remember that this field is really the result of the enclosure of many different acres, and that the old boundaries between them are still visible. Some scores of torts were actionable early in the thirteenth century by means of special varieties of quare action. Many of these survived in the next century and later to form the unified action of case. The commonest type of tort was certainly assault and battery, and breach of close. These soon coalesced to form another group, trespass. By the end of the fourteenth century much of the law of tort was comprised under one or the other of these two heads, but it was only slowly that theory supplied a test to distinguish between them. A formal distinction grew up1 since it had never been customary to allege vi et armis in some cases. Those cases became fixed upon no clear principle. Thus in the two chapters of Fitzherbert’s New Natura Brevium (which is usually cited as F.N.B.) dealing respectively with trespass and case, it will be found that some of the writs he classifies as trespass do not allege force and arms,2 while some of the writs which do contain this clause he describes as trespass on the case.3 We can hardly say, therefore, that any distinction (other than tradition) served to distinguish the scope of trespass from that of case, even so late as Henry VIII’s reign.4 Even the test which later prevailed, namely, trespass for direct and case for indirect damage, would hardly apply to some of the cases discussed by Fitzherbert; thus if A. breaks his own pond in such wise that it causes B.’s pond to overflow, the remedy is trespass vi et armis.5

Gradually case acquires a few substantial characteristics. Thus case is appropriate when the defendant himself did not act, although his servants have caused damage for which he is liable. So, too, an old allegation of negligence becomes more prominent, until negligence finally became one of the most important features of the action. This does not mean that the notion of negligence was entirely absent from trespass; it was, however, concealed under another form. The defendant in trespass has long had the defence of inevitable accident. Any damage which he could have avoided will therefore charge him, although that which is “inevitable” will not. In case, on the other hand, the plaintiff (who has to prove the defendant’s negligence) in practice can only demand a moderate standard of care which undoubtedly fell short of that implied in trespass.

As a result of causes which have been skilfully traced by Professor Winfield and Professor Goodhart,1 case (based on negligence) supplanted trespass (where negligence need not be proved) in the course of the nineteenth century. The reasons for this were procedural for the most part. An old statute2 had the result that a verdict of nominal damages in trespass should carry with it nominal costs as well. In many cases there must also have been doubt whether the facts would show direct or only consequential damage, for the line between the two is necessarily vague. As a result, many cases which might have supported an action of trespass were framed in case, so that the idea of negligence implied in case has supplanted the older and stricter (though by no means absolute) liability which characterised the action of trespass. At the same time, this newer view of negligence has been now extended even to certain cases where the plaintiff has endeavoured to base his action on trespass and not on case—notably trespasses on or from the highway.3

THE TORT OF NEGLIGENCE

For many centuries it would have been impossible to state the common law otherwise than in the form of a list of various torts which have been remedied by various forms of action. As we have seen, the King’s Courts were not anxious to entertain personal actions of any sort, and even in the sixteenth and seventeenth centuries there was legislation designed to keep actions not involving title to land in local courts.4 Reluctantly more and more torts were admitted to the list of those actionable in the King’s Courts, but still there was no theory which would draw all these details together into a coherent system. The forms of action stood in the way.

It was the action of case which first evolved a principle sufficiently wide to cover many of the constantly recurring forms of tort. This principle was negligence and its history will concern us in the next chapter. Here we are only concerned with the formal exterior of tort actions; for this purpose it will suffice to say that actions of case were very generally regarded from about 1800 onwards as being based on negligence. It became common to speak of “case for negligence”, “actions for negligence”, “actionable negligence”.5 Such language was perhaps made more attractive because there still remained an older tradition about the nature of trespass with which “case for negligence” could be (rightly or wrongly) contrasted. By this time the emphasis on the general concept of negligence has become so steady and universal that it is possible to argue that we have outgrown the old method of “matching colours” whereby new cases were brought in under the cover of old ones, and that we now have created a distinct tort of negligence.1

CHAPTER 4

LIABILITY, CIVIL AND CRIMINAL

For reasons we have already mentioned, it is impracticable to speak of our early law in terms of a distinction between crime and tort. This observation becomes necessary once more in tracing the history of liability, for such few principles as there were had been derived from experience drawn indifferently from all parts of the law of wrongs. Nevertheless, some interplay between notions drawn from clearly criminal cases and those drawn from obviously civil ones may be expected, and in fact actually took place.

LIABILITY IN ANGLO-SAXON LAW

English writing on the subject generally goes back to a series of striking articles by Dean Wigmore which appeared in the Harvard Law Review in 1894. The author there set forth his theory that in early law (including Anglo-Saxon law) liability was absolute:1

and a great many similar propositions are advanced which do not all concern English law. In short, “a man acts at his peril”. This theory, even then, did not represent the unanimous opinion of common lawyers, for Mr Justice Holmes had already criticised it in 1881, doubting whether the common law had ever held such a rule in its best days.2 Professor Winfield has more recently and more thoroughly examined the question, with the result that he declares it to be merely a myth.1

There was indeed a maxim qui inscienter peccat, scienter emendet, but there is no need to assume that maxims represented the state of the law with much more accuracy in 1100 than they do now. We may surmise, however, that there was a fatalistic attitude to life in earlier times which made men accept misfortune (in the shape of heavy liability for harm they did not mean to do) with more resignation than now.2 We have also to bear in mind that “law in books” was itself a rarity in the four centuries preceding Glanvill, and so was much less in contact with “law in action” than it is to-day. The question of liability is frequently discussed by the author of the Leges Henrici Primi, but as Professor Winfield shows, he expressly warns us that his crude maxim is not the whole law, and frequently mentions the reduction of the compensation or penalty according to circumstances. Even the Anglo-Saxon laws themselves plainly discriminate between care and carelessness, and recommend clemency.

A passage appended to one of the laws of Aethelred (c. 1000) seems to represent the thought of his age in the determination of liability, and suggests that the Anglo-Saxon system of preordained payments was more flexible than would appear on the surface. It reads thus:

No doubt this is homiletic in tone, and perhaps even in origin, but the mere fact that it insists on principles seems to show that practice had already admitted the possibility of discretion in assessing liability, and was feeling the need of principles in exercising it. A few years later, the passage we have just quoted was embodied in the laws of Canute,4 almost verbatim, and so we may conclude that it was certainly more than mere moralising by an unpractical cleric. As we have just seen, the author of the Leges Henrici Primi is equally emphatic, a century later, on the possibility of discretion. Moreover, the Church had long ago prepared the way, and the Penitentials of the seventh and eighth centuries were already abandoning the idea of fixed tariffs as a measure of human responsibility.1

This view of Anglo-Saxon practice in fixing liability is all the more attractive since it coincides with the results obtained from investigating German as well as English legal history.2

It may very well be that the history of tort liability has run the same course as the history of homicide which we have outlined in a previous chapter,3 that is to say, a simple and severe legal rule, to which discretionary exceptions could be made by competent authorities, is typical of the first stage; the second stage is represented by the recognition by the law itself of those exceptions. Looking merely at the history of the formal rules, we thus gain the impression of an absolute liability which is in course of reduction to more rational limits; if, on the other hand, we take into account the discretionary tempering of strict law with mercy which the sources frequently allude to, the change seems to be one of form rather than of substance.

TRESPASS IN THE EARLY PLEA ROLLS

It is naturally to trespass that we first look for the later history of the onerous standard of liability just discussed. Here we have to recognise that the scope of trespass has considerably changed in the course of the centuries. Our earliest examples seem all to be cases of undoubted violence with a strong criminal element. The plaintiff has been beaten, wounded, chained, imprisoned, starved, carried away to a foreign country, and has suffered many “enormities”.4 In later times it is agreed that many of these expressions are just traditional forms without much meaning; but there clearly was a time when they accurately represented the plaintiff’s case. Defences to trespass in its earliest form therefore take one of two lines, a denial of the facts by a plea of not guilty, or a plea in justification such as self-defence, lawful authority, or the like.

LIABILITY IN TRESPASS

This was certainly the original nature of trespass, and as long as it was confined to cases which involved acts which must have been deliberate, there was little room for questions of liability to arise. A momentous departure was made when the common law began to admit what we may call constructive trespasses, and to remedy them by an action which hitherto had been confined to deliberate acts of violence in breach of the peace. The date of this revolution has not been ascertained, but it is very desirable that it should be, for we are clearly in the presence of a turning-point in the history of tort liability. The use of traditional formulae naturally tends to obscure the change. The beating, wounding, evil entreating, and other enormities continue to be alleged, but as words of court with purely artificial meanings. The persistence of the pleading rule that a defence of “not guilty” puts the facts in issue (and nothing else), and its corollary that proof of the facts is sufficient to condemn the defendant, must finally have raised the whole problem of liability. Such a change would hardly have been sudden, nor would purely technical trespasses have appeared immediately; we should expect, on the contrary, a gradual transition from the deliberate assault, through the accidental injury, and thence to the merely technical assault. Consequently, the problem of liability would only present itself gradually and in fragmentary fashion. Such cases become prominent when firearms are in general use;1 how much earlier they are to be found seems at present unknown.

If we turn to trespass to land, the same stages of development are discernible. The action of trespass in its original form was concerned with violent invasions by marauders, accompanied in most cases by serious assaults on the owner and his servants, and the forcible removal of cattle and stock. Such a state of affairs was common enough in the time of the barons’ wars, the period of the ordainers, and the Wars of the Roses. The admission of the plea that the close was not the plaintiff’s freehold but the defendant’s, introduced a technical element, however, by laying emphasis on the right of the plaintiff rather than on the tort of the defendant. Considerations of title thus became closely associated with trespass quare clausum fregit, and may be the explanation for the growth of highly technical trespasses to land. An early and very important example is the case in 1466 which is frequently cited all through the later discussions of liability.2 The defendant clipped a thorn hedge, the clippings fell on the land of an adjoining landowner, and the defendant entered and removed them. The question was, whether this entry was an actionable trespass (the falling of the clippings was not laid as a trespass in the pleadings, it seems, although it was discussed in the argument). Upon demurrer, a remarkable debate took place.

For the plaintiff it was urged that “if a man does something, even something lawful, and in doing it tort and damage are caused against his will to another, yet he shall be punished if by any means he could have prevented the damage”, or, as another serjeant put it, “if a man does something, he is bound to do it in such wise that no prejudice or damage thereby ensues to others”. The defendant seems to have set up the view that the trespass was justifiable, and that he could enter to remove the clippings, just as he could enter if his cattle had strayed from the highway to drive them out. This proposition was denied by Littleton, J., who declared that “the law is the same in small matters as in great”, only the damages might be slight in some cases. Choke, J., suggested that if the defendant had pleaded that the wind blew the clippings on to the plaintiff’s land, then the defendant would have been justified in entering to remove them. Among other points touched upon, a clear distinction was drawn between criminal and civil liability. Malice prepense was essential to felony, it was said, and an accidental wounding could be trespass, even if it were not felony.

Such was the discussion; Mr Justice Holmes said that judgment was given for the plaintiff, but the Year Book says nothing of judgment either way. The case is hardly authority for any view of liability for it contains no decision; the preponderance of opinion seemed to be on the side of those who urged that the defendant was liable, but the most significant thing of all is the way in which it was argued. It seems clearly to have been a new point, and although imaginary cases were put (and disputed) there seems no confident appeal to any settled rule. However, the numerous dicta in this case were repeated some years later and gained force in the repetition. Particularly, the remark about an accidental wounding while shooting at butts was repeated with approval1 and stands at the head of a long line of cases arising out of shooting accidents. A later age, therefore, concluded from this case of 1466 that the better opinion was that put forward for the plaintiff, and that liability attached for all harm done in the nature of a trespass, however involuntary, if it was “in any way” avoidable.

NEGLIGENCE AND TRESPASS

It is largely a matter of terminology how this standard of liability is described. It may be called “absolute” in that it is unconnected with the defendant’s intention, and it might be argued that the exception of inevitable happenings is tantamount to saying that the defendant did not act voluntarily. On the other hand, it has appeared possible to some to regard this exception as the source from which the idea of negligence entered into these discussions, especially since in modern times the test of inevitability has varied. Thus, if we regard results as inevitable if no reasonable care would have prevented them, then the “absolute” liability will be reduced to liability for negligence only. It is quite conceivable that such a transition took place, although the case of 1466 is perfectly clear in describing the plaintiff’s demand that liability attached if the defendant “by any means could have prevented the damage”. There is language in cases around the year 1800 which lends colour to this view;2 it may be that it helped, together with the procedural changes which Professor Winfield regards as being primarily responsible, in spreading the idea of negligence throughout the field of trespass.1

It seems, however, rather too high an estimate of this possible transition in the measure of inevitability to say that “there has never been a time in English law, since (say) the early 1500’s, when the defendant in an action of trespass was not allowed to appeal to some test or standard of moral blame or fault in addition to and beyond the mere question of his act having been voluntary”.2 Professor Winfield has collected a line of cases from the early seventeenth century where the defence of accident or misadventure was rejected as inadmissible.3 These seem to indicate clearly that the fifteenth-century standard of inevitability was still maintained.

If we look back we shall see that the flexibility of Anglo-Saxon law seems to have vanished with the advent of the common law. The early Year-Book period apparently contains no authority on liability for accident in trespass (although it was settled that no criminal liability attached). When we do find dicta, late in the fifteenth century, they state a rule which seems severe and inflexible, and in the time of Coke this is embodied in emphatic decisions. (At that very moment, as we shall see later, the liability of bailees was also greatly augmented.) The early seventeenth century seems therefore the age of greatest severity—and it is well to recall Holmes’ remark that if there ever was a period of “absolute” liability it was “in that period of dry precedent which is so often to be found midway between a creative epoch and a period of solvent philosophical reaction”.4

If we look forward, we see no great development in trespass until the early nineteenth century. The old principle, enshrined in rules of pleading, was maintained. As we have indicated, there may have been a tendency for a moment to reduce liability by changing the standard of inevitability; but much more important were certain fairly old rules about cattle trespassing from the highway into adjoining land, for they were used as a guide in the multitude of traffic cases which are so prominent at the present time. Equally crucial are the procedural considerations which have led plaintiffs to abandon an action of trespass and bring case instead. We must now turn to the action on the case, therefore, and trace the principles of liability applicable to it.

NEGLIGENCE AND CASE

We have already suggested that the violent trespasses were the first varieties of quare action to acquire an independent existence. Of the large and varied collection which remained, some seem to have fallen out of use, others became independent actions in their turn, and the rest survived and were classified eventually as “actions on the case”. For a long time, case must have been an immense “miscellanea” in the classification of forms of action, and particular topics must have been put there because they would not fit in anywhere else, rather than because they had any logical connection with one another. Repulsion from trespass is therefore the main test, as soon as tests are thought to be desirable, and so we get the positive principle that direct assault to the person, and violation of the possession of chattels or land, constitute trespass; damage less direct, or damage caused by means less personal, will therefore be classified perforce as “case”. This view helped considerably when the damage was caused by the defendant’s omission. Thus if A “maliciously” breaks his own pool so that the water floods his neighbour’s land, trespass lies,1 but if A fails in his duty to clean his ditch or to repair his banks, and so his neighbour’s land is flooded, case will lie.2 Here we have an important admission that some sorts of inactivity which cause damage are actionable. There are, in fact, grounds for believing that the word “negligence” was first used in this sense: the defendant “neglected” to do something, and thus caused the damage.3

The primitive conditions which are seen in violent trespasses and thefts were perpetuated in the principle that trespass, like larceny, was a violation of possession; consequently a bailee could not “steal” the chattels delivered to him,4 and if he damaged them trespass would not lie either.5 He had not violated the plaintiff’s possession. The only remedy (apart from detinue) was case.6 Closely connected with this notion was the feeling that if I ask someone to do work on my chattel, or even to operate surgically or medically upon my person, trespass will not lie if ill betides. Indeed, it would seem that no action lay of any sort, for the plaintiff himself invited trouble. This position was turned by the development of assumpsit; the defendant will not be liable unless he “undertook” to produce a particular result. If he gave this undertaking and failed to carry it out, then the plaintiff can frame his case in the nature of deceit. The earliest example was one in 1348. The report is brief:

The case has some of the features of a new experiment. It was heard by bill while the King’s Bench happened to be at York, and so the record is less technical than it would have been on an original writ. The nature of the action is obscure. The bill seems merely to have stated the facts. Richmond’s objection seems to be that those facts prima facie might sustain an action of covenant, or an action of trespass; but since it alleges no covenant under seal, nor any use of force and arms, it does neither, and so the bill must fail as disclosing no cause of action. This dilemma between tort and contract henceforth appears with monotonous regularity in later cases, but its effectiveness as a dialectic device depends on the assumptions (which Richmond evidently had in his mind) that “tort” means only those wrongs which were actionable by trespass vi et armis, and covenant means only a covenant under seal. Baukwell was prepared to regard the facts as constituting a “trespass”—whether vi et armis or not, we are not told. According to the report the plaintiff alleged an assumpsit, but as we have seen, the judge declared that the action really was trespass.

The record, on the other hand, does not contain the word assumpsit although it does say that the defendant “ferryman” had “received the mare to carry safely in his ship”. The verdict further says that the boat was loaded “against the will of the plaintiff”. This seems to foreshadow the action of case against bailees, while the omission from the record of an express assumpsit, coupled with the description of the defendant as a ferryman, resembles the form used against those in common callings. All these indications of case are difficult to reconcile with the Year Book’s statement that Baukwell, J., held that it was trespass. Luckily the report is amply confirmed on this point by the record which shows that capias issued against the vanquished defendant. Now capias (which may lead to outlawry) was possible in trespass, but impossible in case.1 The report is therefore correct, and the bill was treated by the court as a bill of trespass, although from the point of view of later lawyers, it seemed an example of case on assumpsit.2

In the farrier’s case3 we get a stage further. The writ was brought “on the case” and did not allege force and arms, nor that the defendant acted maliciously but was upheld in spite of these objections. There was, however, no mention of an assumpsit, for the farrier’s is a common calling.

Other cases might also be considered, but their general effect seems to be that just after the middle of the fourteenth century it was not considered vital to distinguish the three forms of trespass, case, and assumpsit. That task was left for the reign of Richard II, and more particularly to the fifteenth century, which seems to have felt a special vocation for establishing logical distinctions. As a result of that development, assumpsit became in effect contractual;4 and so we are left with trespass on the case.

Assumpsit left its mark, even on some of those types of trespass on the case which did not continue to allege it. When brought against physicians and horse-doctors, in particular, there was a tendency to insert in the writ and the declaration an allegation that the defendant had acted “negligently and recklessly” or similar words.5 At first these words seem to be merely an example of that solemn abuse of the defendant which we expect in mediaeval pleadings,6 but gradually they acquire a meaning; moreover, they seem to profit by an ambiguity, for by this time case was available where the defendant had “neglected” to do a duty (such as enclose, or repair, his property). Hence the combination of negligent action and passive inaction covers a fairly large part of the ground included in “case”. The trees were familiar to English lawyers long before they formed an idea of the wood, and not until 1762 did it occur to the compiler of an abridgment to collect material under the heading “action on the case for negligence”. As Professor Winfield remarks, “Comyns was not writing the law of torts; he was trying to classify remedies”.7

By 1800 “case for negligence” was a common expression, and it began to be said that the action was actually based upon negligence.8 Thenceforward it became possible to argue that negligence was an independent tort.

VICARIOUS LIABILITY

So far, we have been concerned with the liability of a man for his own acts, intentional or unintentional. We now have to consider the liability which he may incur for the acts of others.

Even criminal law occasionally visited the sins of the fathers upon the children. The traitor’s and the felon’s issue were disinherited, and the wife and children of a juryman convicted by attaint were to be thrust out of their homes. Indeed, the converse has also been maintained, and Dean Wigmore has argued that parents and masters were liable for the crimes of their children and servants. There certainly was some liability for the crimes of a slave, one passage suggesting that it could be discharged by the noxal surrender of the slave or his redemption at a fixed price.1 The institution of slavery, however, has left little mark on our law, and most of what we find in earlier sources on masters’ liability is rather of a police nature; the master must produce any members of his household in court if they are wanted. If he fails, the master may be pecuniarily liable.2

The liability of husband for wife, parent for child, and master for servant is a broader question, and needs a little comment. Dean Wigmore has collected a typical sample of the material.3 From it he concludes that “there certainly was a time when the master bore full responsibility for the harmful acts of his serf or his domestic”,4 although by the Norman period there was an “idea that it made a difference whether the master consented to or commanded the harm done by the servant or other member of his household”.5 It made so much difference that it seems more natural to state the law in the converse, i.e. the master (like everyone else) is liable for acts he commanded, or subsequently ratified. If he proves that he did neither the one nor the other, he is quit. But (and this is important) he is very frequently put to his proof, for the thirteenth century in its wordly wisdom gravely suspected the master of complicity in the servant’s misdeeds; so gravely, in fact, that it often imposed upon him the burden of proving his innocence. Such a suspicion, based upon a shrewd knowledge of contemporary society, is quite different, however, from a rule of law making the master criminally or civilly liable. Such cases are fairly common in local courts, but are hardly to be found in the King’s Court. Indictment before the King’s justices was a more serious and risky proceeding than a presentment or a plaint in a leet, and so we need not expect to find the King’s Court systematically applying a presumption of the master’s complicity whenever a servant is before the court. If the master is to be reached, it must be on a clear charge of being a principal or an accessory, and this later became the view even in local courts.

The attitude of the King’s Court is well illustrated by the picturesque case of Bogo de Clare in Parliament in 1290. Having a suit in an ecclesiastical court against the Earl of Cornwall, Bogo obtained a citation which was served on the earl as he was walking up Westminster Hall to Council. This was to the manifest contempt of the King, who laid his damages at ten thousand pounds.1 Bogo had hardly got out of this dangerous situation when one of his own adversaries tried to serve a citation in Bogo’s own house. Bogo had just learned that citations were distasteful to the King, and his lackeys promptly made the apparitor eat his process, parchment, wax and all.2 Bogo had not realised that circumstances alter cases, and found himself defending an action of trespass in Parliament.3 His defence is an important text for our purpose, for he took the line that he was not liable for a wrong that his servants had done, and demurred. The plaintiff was examined and admitted that Bogo himself neither committed nor ordered the threspass, and so Bogo had judgment. He still had to answer the King for the breach of Parliament’s and the King’s peace by men in his mainpast. He mustered all his retinue, but the authors of the outrage had fled, and the others swore that Bogo knew nothing of it and never commanded it, and so the affair died down, as nothing could be done to Bogo criminally until the principals had been convicted.4

One who had others in his mainpast was under an obligation to secure their attendance if a charge was brought against them. In some places it certainly was a custom to exact a payment from the mainpast if there was a conviction.5 But it is equally clear that the mainpast could defend a criminal charge by proving that he neither commanded nor condoned the offence.6 The King’s Court did not tolerate these notions. In 1302 it held that fining the mainpast was illegal,7 and in 1313 Staunton, J., declared “let those who have done wrong come and answer for their own misdeeds”.8

We therefore do not feel justified in saying that a master was criminally liable for his servant’s acts, save in the obvious case where he commanded them or approved them. Was he civilly liable? There is only one passage in the borough custumals on the point, and that comes from Waterford, where there was a rule that a citizen was liable for damage done by his apprentice, just as for his son who is of age (i.e. able to count twelve pence).1 This is very meagre evidence for the proposition that mercantile custom held masters liable for their servants’ torts. Hardly more illuminating is an oft-quoted passage in the statute of staples, which according to one view “states the general principle applicable to the master’s liability for the torts of his servants”, by abolishing liability formerly imposed by mercantile custom.2 The statute says:

The master’s liability here mentioned can only mean such liability as that of the master of a ship for the acts of his crew, which was being laid down at this moment in maritime jurisdictions.4 But the most common case of the loss of goods which the statute remedies is of quite a different nature. The Crown was constantly straining the law of forfeiture, and had obtained decisions that if a bailee incurs a forfeiture, the goods bailed to him are liable to it and the merchandise in his hands goes to the Crown.5 So, too, a thief on conviction forfeited the stolen goods to the Crown.6 Some boroughs had succeeded in maintaining a custom that the rule should not apply to them, and others got charters exempting them from its operation.7 It was this indefensible rule which the statute finally abrogated for the whole country. As often happens,8 the statute did not deal with the whole question, but only with one particular case—that of a servant. The Cinque Ports alone at this time had a general rule that bailed goods are not forfeit by the felony of the bailee.9 One thing is clear, and that is that the object of the statute was not to change the law of liability (mercantile or common law), but to relieve merchants from a strained application of the law of forfeiture.1

Down to the close of the middle ages, therefore, the common law had stuck to its simple principle. A man is liable for his own voluntary acts, but he is not liable for his servant’s acts unless they have become his own, by reason of his previous command or subsequent ratification. There were few exceptions. The innkeeper was liable for the harm done by his servants, but that is only incident to a still wider liability; so too, there was the liability of a householder for a fire started by his servant; the liability of a shipmaster for his crew belongs, on the other hand, to a completely different line of history.

RESPONDEAT SUPERIOR

In its best days, the common law has always been willing to moderate its rules where public policy requires, and the establishment of the principle of respondeat superior is a good example. A long line of statutes deals with the problem of the oppressive official—sheriff, under-sheriff, escheator, gaoler, bailiff, etc. The sheriffs themselves were not above reproach, but their underlings bore a thoroughly bad reputation in the middle ages. It was useless to make them civilly liable to injured members of the public because in many cases the underlings were themselves men of little substance, and if a defendant had no considerable land within the county there was little prospect of enforcing a judgment for damages against him. The legislature therefore set up the rule that if the underling of certain public officials was insufficient to satisfy a judgment, then his superior should answer.2 This liability is therefore only applicable to public officials3 and not to employers generally, and it is only a secondary liability which comes into play when the original defendant is unable to satisfy judgment.

GROWTH OF THE MODERN RULE OF EMPLOYER’S LIABILITY

As late as 1685 the courts were clinging to the mediaeval rule that if a master orders his servant to do something that is lawful, and the servant “misbehave himself, or do more”, the master is not liable in trespass.4 With the advent of Lord Holt, the mercantile law (with which he was specially familiar) began to exert through him a considerable amount of influence on the common law’s doctrine. In a shipping case, Holt took the opportunity of laying down a general rule—“whoever employs another is answerable for him, and undertakes for his care to all that make use of him”.1 As a principle, the rule was clearly maritime (and eventually Roman); but the introduction of a strange rule can hardly take place unless plausible arguments can be produced tending to show that it is conformable to some things already established in the common law, and fortunately those excuses were easily found in certain rules about common callings, liability for fire, the respondeat superior rule, and the ratification which could be inferred if the master profited by the servant’s tort. Holt was willing to place the development on the broadest basis of convenience and public policy; others took refuge in various technicalities according to their taste or learning, and even Blackstone preferred to base an employer’s liability on a variety of separate considerations rather than on the general policy of social duty.2

Even in the middle ages there were a few special situations in which the general rules of liability were modified, and a few words about them will illustrate the policy of the common law.

THE BAILEE’S LIABILITY

This subject has been much controverted, and has several features of special interest.3 Before the time of Bracton it is difficult to deduce any settled rule out of the few cases available.4 It is clear that a bailee could bring the appeal of larceny against a thief; this is a natural development, for, as we have seen, the appeal was a procedure which grew up as a result of the normal actions of persons who have lost chattels. The bailee who discovers that the chattels bailed are missing, will, of course, begin to look for them, follow the trail, raise the neighbours, and consequently challenge the thief and claim the chattels. Similarly, if need be, he can replevy them. This perfectly natural procedure has been translated into terms of legal theory by saying that “the bailee, because he was possessor, had the rights of an owner as against all the world except his bailor”.5 This is certainly true, but confusion crept in at an early date, for some of the cases show the bailee supporting his appeal (perhaps unnecessarily) by the further statement that he had paid (or ought to pay) compensation to his bailor for the loss.6 It seems a little hazardous, however, to make the further deduction that “the bailor, by reason of the bailment, had lost his real right to the chattel, and could only assert his better right by a personal action [sc. detinue] against the bailee”,1 for we find a case2 where the bailor seems to bring the appeal against the thief, offering to prove by the body of the bailee from whom the goods were stolen, and who was bound to repay them to the owner.

It has likewise been maintained that the liability of the bailee was absolute, both before and after the time of Bracton. There is singularly little evidence for this proposition,3 which must be regarded at present as conjectural.

When we come to Bracton we find a difficulty which is so typical that it deserves mention, not only as part of the history of bailees’ liability, but also as illustrating the Bractonian problem in general. Bracton has an elaborate classification of bailments and says that in some cases the bailee is liable for fraud and negligence only.4 What are we to conclude from this? Is Bracton stating Roman law on a point where English law had not yet reached a decision, or is Bracton stating real English law, although in Roman terms? No amount of study of Bracton will settle this, for until we have independent evidence of the English law of Bracton’s day, we must remain uncertain of how far we can take Bracton as stating current law and not merely his own Romanesque speculations. The principal situation which would raise the question is when the goods have been stolen from the bailee without his connivance and without his negligence. There is one early case where the bailee’s defence was that the goods had been stolen when his house was burnt, but unfortunately judgment was given on default without discussing the point.5

The pre-Bracton law of bailment is very obscure. It is easier to speak of the two centuries following Bracton, and they seem to contain clear evidence that the bailee’s liability was not absolute. Britton states as law that the borrower of a chattel is not liable for fire, flood or theft unless they were due to his fault or negligence.6 Such a defence was actually allowed7 in 1299. Another case in 1315, once obscure, but now clarified by the printing of the record by the Selden Society,8 shows conclusively that theft without the default of the bailee was a good defence. Further cases in 1339,1 13552 and 14313 confirm this, and in view of such a line of authority it seems difficult to maintain that “these attempts thus to modify the liability of the bailee never materialised”.4 The evidence seems rather to support the view that the attempts were successful for nearly two centuries after Bracton.

Unfortunately, the peculiar nature of the Bractonian problem prevents us from saying whether there is clear continuity from the pre-Bracton period, for there is still, perhaps, the unanswered question whether Bracton was truthfully stating the law of his own day. If this was not the case, then there might be the possibility that the post-Bracton cases were in fact decided on the strength of his Romanesque exposition of the subject. A further element of ambiguity is suggested in the Harvard manuscript of Brevia Placitata, where it is alleged that a distrainor may be legally liable for accident, and yet escape by taking the general issue and trusting the jury to be lenient in the matter of damages.5 It is, of course, very rarely that an experienced and crafty practitioner affords us so fascinating a glimpse of mediaeval law in action.

Be this as it may, it seems clear that from Britton down to 1431 it was familiar doctrine that a bailee was liable for fraud and negligence only. Just after the middle of the fifteenth century the discussion took a different turn. It had been settled for centuries that a bailee could sue a thief or a trespasser, and from time to time it had been suggested that this right to sue was perhaps based, not on his possession, but on the fact that he was liable to the bailor.6 This view was argued in the famous Marshal’s Case7 in 1455. It was agreed that the marshal of a prison was in the position of a bailee, and was liable as a bailee to the party on whose process the prisoner had been committed. In this case, the plaintiff sued the marshal of the King’s Bench prison for damages on the escape of a prisoner. The defence was that a multitude of the King’s enemies8 broke the prison and allowed the prisoners to escape. The argument which is reported shows one point clearly—that the bailee is not liable for the act of God or of the King’s foreign enemies. Apart from that everything is obscure; the debate is fragmentarily reported, the Year Book gives no decision, and the record shows that none was reached, although the case was several times adjourned. The Marshal’s Case, therefore, contains few dicta, and no judgment, and consequently is historically worthless. The one dictum of interest was a converse form of the liability-over theory. As Danby put it, the bailee was liable because he had a right of action against a thief or trespasser, and therefore he was liable for everything except act of God or the King’s enemies, in both of which cases he obviously had no action and therefore no liability.

The stream of dicta continues during the reign of Henry VII and through the sixteenth century until Southcote’s Case in 1601. As Dr Fletcher remarks,1 “it is significant that before that case there is no actual decision holding an ordinary bailee liable for loss, such as theft, occasioned without any fault or negligence on his part”. There are several reports,2 which is fortunate, for Coke’s seems to have been somewhat embroidered. It seems that the only authority relied on was the Marshal’s Case, which the court apparently regarded as having been decided for the plaintiff. The facts were simple. To detinue, the defendant pleaded that the goods had been stolen. The plaintiff replied that the thief was in fact the defendant’s servant, but no stress seems to have been placed on that aspect of the case, and in fact the replication alleging it was held by the court to be “idle and vain”. Judgment was given on the plea, and for the plaintiff. Absolute liability was at last recognised in unequivocal terms by the court of King’s Bench, and at a moment (as we have seen) when liability in other directions was being increased.3

The classifications of bailments attempted by Glanvill and Bracton did not commend themselves to the common law courts, and so for a long time we had but one rule applicable to all bailments. One apparent exception—servants and factors, who were excluded from the category of bailees—was due to a procedural accident, for in the action of account those who were accountable were not liable if the goods entrusted to them were stolen without their default.4

As a result of the rule in Southcote’s Case, prudent bailees made express stipulations limiting their liability, as Coke in his note appended to the case recommended them. This in itself compelled some rough classification of bailments such as was familiar to the learned from Bracton, and to all from Doctor and Student,5 whose author went even to the Summa Rosella for neat examples. This ferment of new ideas and new practices soon began to unsettle the law of Southcote’s Case; the replacement of detinue by assumpsit, moreover, threw emphasis on negligence (and later on contract). Consequently, in spite of the apparent finality of Southcote’s Case, Lord Holt had the opportunity in the case of Coggs v. Bernard6 of treating the entire question as open, and of mapping out the whole field of bailment in the light of Bracton’s learning, which was thus tardily received into the common law. His historical investigation showed that there was no authority for the decision in Southcote’s Case, and for its single rigid rule of absolute liability he substituted several rules requiring standards of care suitable to the different sorts of bailment.

It having been now made clear that there was no absolute liability of bailee to bailor, the suggestion which was frequently made, especially in the seventeenth century, that the bailee’s right to sue was based on that liability over, presented difficulties. That doctrine was still adhered to in 1892, but in 1902 the Court of Appeal held that the ultimate historical basis was the bailee’s possession, as Holmes had long ago demonstrated, and abandoned the alternative which had tempted lawyers for over six hundred years.1

COMMON CALLINGS

It is characteristic of our mediaeval law that although it did not classify bailments, it did classify bailees, and imposed special liabilities upon people who had a special status by reason of their occupation. Carriers, innkeepers and farriers are well-known examples. The legal explanation of their onerous liability has exercised many minds, and one of the greatest of modern common lawyers urged that it was merely a survival of the absolute liability which once lay upon all bailees.2 Simple and attractive, this theory has nevertheless been criticised by several scholars, notably Professor Beale.3 One branch of this argument we have already examined, with the results that we gravely doubt whether absolute liability was a part of our earliest law, that we are fairly sure that it did not prevail in the fourteenth and fifteenth centuries, and that its first absolutely clear appearance is in 1601.

Now the special liability of those engaged in common callings begins to appear at a time when our evidence is clearest that the bailee’s liability was only for fraud and negligence.4 We have already mentioned the action of assumpsit which lay against one who was entrusted with a chattel to do work on it, and whose faulty workmanship resulted in loss or damage.5 This action was available against all bailees, whether professionally or only casually engaged in work of that kind. As we have seen, it was based on the assumpsit—the express undertaking to employ proper skill and care and to obtain a particular result. Gradually a modification in the form of the writ indicated a somewhat different attitude. Instead of counting on an assumpsit, the plaintiff counts on “the custom of the realm” which he chooses as the basis of his action. The defendant’s undertaking (or the absence of an undertaking) is therefore immaterial, and it is to the “custom of the realm” that we must look for his liability. A very early case1 was against an innkeeper, thus:

It will be noticed that it is a writ of trespass, but “he had a writ on all the matter according to his case”. In short, it comes at the moment when case is being distinguished from trespass. The discussion as to whether capias should issue shows the anomalous use of the words “guilt” and “tort” at this moment. It will also be noticed that the count alleges negligence in the form of “default of keeping”. In time it becomes clear that the allegation of negligence means less than it would seem. The early distinction is clearly that one in a common calling is liable without an assumpsit. Later there was the question of the extent of his liability. In the case of the innkeeper it was early established that his liability exceeded that of the contemporary bailee, but the similar case of the common carrier was not settled until much later. It may be doubted whether transport by land was a regular trade in the middle ages. Surviving family names indicate the commonest trades of the middle ages, but although we have numerous families of Bakers, Taylors and the like, we seem to have no Carriers.1 The Carter was a manorial tenant, and the Porter probably had an even narrower range of activity. As for carriage by sea, merchants still generally travelled with their cargo and supervised the handling of it.

The first mention of the common carrier as being in a peculiar legal position seems to be in Doctor and Student, where his liability is equated with that of other tradesmen who are liable for negligence.2 In the seventeenth century the cases show that his liability is stricter, and that he must answer for theft even if he has not been negligent.3 The influence of Southcote’s Case may well be suspected here. In admiralty, the carrier was not liable for theft except by the crew,4 but the common law was capturing admiralty jurisdiction and soon treated sea carriers as common carriers subject to the custom of the realm.5

It was in Coggs v. Bernard that the carrier’s liability received fullest and most reasoned treatment. The negligence alleged in the count was now clearly otiose and had lost its original meaning; the limits set by Lord Holt are the mercantile exceptions “act of God and the King’s enemies”. In Holt’s day these exceptions were construed liberally, and seem to have meant “inevitable accident”. Nearly a century later, a serious change was made in the interpretation of the ancient, but unfortunate phrase “act of God”, by Lord Mansfield. In Forward v. Pittard6 he treated the words literally (as he conceived it), confined them to a few rare meteorological phenomena, and held a carrier liable for what was certainly an inevitable accident. More than that, he used a striking phrase which has ever since been quoted as marking this, the high-water mark, of carrier’s liability: “a carrier is in the nature of an insurer”.

CHAPTER 5

DEFAMATION

There are few chapters in our legal history which illustrate so many different aspects of historical development as does the history of defamation. Germanic elements, Roman elements, the rise and fall of courts, constitutional conflicts, mechanised printing, and later still mechanised distribution of printed matter, have all played their part in producing the body of law which historical accident has divided into the two categories of libel and slander.

SLANDER IN ANGLO-SAXON LAW

In common with most of the Germanic systems, Anglo-Saxon law was particularly concerned with insulting words addressed by one person to another. This was an offence which it punished with severity, sometimes with the excision of the tongue.1Bot and wite were due for certain terms of abuse before the Conquest, and long after the Conquest local courts frequently entertained cases of insult; such jurisdiction was naturally left to the local courts, for they alone could secure amends before the same community that had witnessed the affront. Such amends were a fine, and sometimes a humiliating confession. Thus at Preston, in England, as well as in Normandy, the offender must hold his nose and call himself a liar.2

SLANDER IN CHURCH COURTS

The Church exercised criminal jurisdiction over many matters which modern law has relinquished to the forum internum. A great deal of scandalous gossip about the private life of one’s neighbours, and a good many obscene and abusive expressions, were therefore in a special category, for they might have the effect of putting a person upon his trial before an ecclesiastical court.1 The Church no doubt regarded defamation of this character as dangerous, mainly because it led inevitably to the abuse of her criminal procedure.2 Indeed, the very word “defamation” is a technical term in church law, signifying that evil reputation which is sufficiently notorious to put a man on his trial. Mere rumour is not sufficient.3 The diffamatus is thus a person whose reputation is so bad that it serves as an accusation; but if as a result of the trial he is acquitted, then clearly his ill-fame was unfounded, and those who spread the calumny have themselves committed a crime: “furthermore, we excommunicate all those who for lucre, hate, favour, or any other cause maliciously impute a crime whereby anyone is defamed among good and grave persons in such wise that he has been put to his purgation at least, or otherwise aggrieved”4 —thus Stephen Langton enacted in 1222 at the council of Oxford, and we have already seen traces of the application by the Church of this principle to members of a grand jury whose indictments were not followed by conviction.5

SLANDER IN LOCAL COURTS

Gradually it becomes apparent that local courts are giving remedy for words which are not merely insults addressed to the plaintiff, but rather statements to his prejudice addressed to other persons. The remedy also takes the form of a civil action for damages rather than that of a prosecution for a petty misdemeanour.6 Thus in the manorial court of King’s Ripton, a plaintiff alleged that the defendant uttered defamatory words about him to a third party, and also sent a defamatory letter concerning him to another, with the result that he suffered general damage of 20s. and special damage of 30s. in respect of a lease which was not renewed.7 Still more interesting is a case in 1333 where the county court of Bedford tried an action in which the plaintiff alleged that the defendant called him a false and faithless fellow, whereby he was prevented from raising a loan which was being negotiated.1

SLANDER IN THE KING’S COURT

For serious matters, the church courts were the most practicable jurisdiction.2 The King’s courts were prepared to admit this—up to a point. In 1285 the writ called Circumspecte Agatis (which soon was reputed a statute) confirmed the principle that the punishment of defamation as a sin (i.e. by the Church’s criminal procedure) was not subject to prohibition from the temporal courts; an exception was made, however, if “money is demanded” (i.e. in the civil proceedings for damages), and in that case prohibition presumably would lie.3

Ten years later a lively dispute in the King’s Court in Ireland which (against all the rules of pleading) finally developed into an appeal of treason was called to England and the process quashed because it had begun as a complaint of defamation, “and in this realm it is not the practice to plead pleas of defamation in the King’s Court”.4 This statement in fact needs qualification. No doubt it is true that the King’s Court would not follow the example of local courts, and when A. and B. have exchanged abuse, settle the damages due for each epithet, and determine the balance on account which remained to be paid.5 But the King, like other lords, could not stand by while someone was saying that “there is no justice in the lord’s court”,6 nor could he tolerate similar statements about his principal officers. In 1275 we therefore find the beginning of a line of statutes creating the offence of scandalum magnatum, the slander of magnates.7

THE SLANDER OF MAGNATES: SCANDALUM MAGNATUM

The course of a statutory remedy or offence may sometimes be quite unexpected. Thus scandalum magnatum begins with a statute of 1275 which enacted that one who publishes false news or scandal tending to produce discord between the King and his people or the magnates shall be kept in prison until he produces in court the originator of the tale.1 The statute was therefore essentially political in its nature, and succeeding legislation retained this characteristic. In 1378 the hundred-year-old statute was re-enacted, the word “magnates” being glossed as peers, prelates, justices and various named officials.2 The moment was one of restless intrigue, much of it centring round John of Gaunt, and three years later came the Peasants’ Revolt (1381), in the course of which (it is said) a demand was made for the repeal of the statute.3 This would suggest that the statute was not a dead letter; it was in fact re-enacted shortly afterwards, in 1388,4 with a very important additional clause that offenders may be punished “by the advice of the council”.

The statutes, therefore, are still political in scope, and criminal in nature. There is very little evidence of the working of these statutes during the middle ages, but cases begin to appear in the common law courts under Elizabeth. This is perhaps connected with the fact that the statutes on scandalum magnatum were once more re-enacted5 in 1554 and again6 in 1559, but with additional clauses on “seditious words”; justices of the peace were given jurisdiction, and the punishment was loss of ears for words, and of the right hand for writings. Towards the middle of the sixteenth century scandalum magnatum came under the influence of the doctrine that if a statute prescribes a punishment for acts which cause harm to others, then the injured party can have a civil action for damages in respect of breaches of the statute, even though the statute makes no provision for a civil remedy. It was the civil side of scandalum magnatum which the common law courts developed, and in doing so they established several harsh rules. Thus, words which were too vague and general to support an action for slander at common law would support an action on the statute; consequently vague criticisms or expressions of dislike or disrespect, although they did not make any definite imputation, were actionable if spoken of a “magnate”. Moreover, the defendant could not justify by pleading that the words were true, in spite of the fact that the statute only penalises “false news and horrible lies”. The young Mr Coke, a few months after his call, did indeed hold a brief—his first in the King’s Bench—for a neighbour in which he succeeded in getting the court to allow a sort of explanation to be put in, tending to show that the words were susceptible of another meaning,1 but the position of defendants was very little strengthened by the concession.

The common law courts were therefore slow to apply the statutes relating to scandalum magnatum, and when they did do so they were most interested in the civil action based upon it.2 The criminal aspect of the matter, as the statute of 1388 makes clear, was pre-eminently the province of the council, and it is unlikely that the justices of the peace would be allowed much scope for the independent exercise of their statutory powers under the act of 1559. The throne of Elizabeth was too unsteady, and the political situation much too dangerous for the council to resign the trial of political offences into the hand of the country justices. The council, therefore, and more particularly the Star Chamber, employed themselves in dealing with the slander of peers and seditious words and writings. It is well known that the Star Chamber made frequent use of the cruel punishments of mutilation for these offences, but it should be remembered that there was some statutory sanction for them. If this fact is often forgotten, it is because the Star Chamber itself was loth to rely upon legislation. This policy was particularly evident under James I and Charles I, when on several occasions an exercise of the prerogative which was quite defensible on strictly legal grounds was in fact defended on the much more debatable grounds of “absolute power”. Bate’s Case is a well-known example;3 another is the case De Libellis Famosis,4 which Coke prosecuted as Attorney-General and subsequently reported. It was clearly within the definition of scandalum magnatum, yet this offence is not expressly mentioned; the court also referred to the possibility of mutilation, but avoided mentioning the statutes of 1554 and 1559. Instead, the Star Chamber laid down some general propositions on libel, private and public, which were evidently based on civilian learning. Rather than rely on statute, the court laid it down that “libelling and calumniation is an offence against the law of God”, and sought their legal basis in Exodus and Leviticus. Roman law had distinguished between the defamation which could be remedied by a civil action, and the libelius famosus which it visited with extraordinary punishment. The Star Chamber apparently used this latter conception to extend, far beyond the bounds of the statutes, our native scandalum magnatum.

THE BEGINNINGS OF LIBEL

Coke himself is credited with the rapid increase of libel cases in the Star Chamber while he was Attorney-General,1 and it is clear that he was deeply interested in both branches of defamation.2

Looking back from the year 1605 we can see that the law has not yet advanced very far. The distinction between libel and slander has not yet settled at the place where it now rests, and it is hardly clear where it will ultimately lie. At this moment, libel is obviously a crime, and, as we shall see a little later, slander was obviously a tort. The crime was punished principally in the Star Chamber; the tort was actionable mainly in the courts of common law. For the origins of libel we have to go to the obscure mediaeval offence of scandalum magnatum which had definitely political origins. The events of the Barons’ Wars left a sufficient crop of rumours and scandals (of which we have a surviving example3 ) to make the first statute of 1275 desirable. The feverish years of Richard II, with their mischievous tales of financial corruption, called for the re-enactment and extension of the offence and its association with the council—which is perhaps the reason why the ordinary sources for legal history tell us so little of scandalum magnatum during the middle ages. The troubles of the Reformation made it necessary for Mary to reaffirm the old legislation with the significant addition of a clause dealing with seditious words. Elizabeth, immediately on her accession, re-enacted Mary’s statute, but later in her reign there took place a rapid development of a curious sort: the common law courts gave a civil action for damages on scandalum magnatum, but the Star Chamber concentrated mainly on the crime, preserved the spirit of the statutes (although abandoning the letter), and borrowed the name, and some of the principles, of Roman law, thus creating the crime of libel, which it henceforward will develop in a logical fashion.

THE SOURCES OF THE LAW OF LIBEL

The sources from which libel sprang are therefore very diverse. On the one hand we have the ancient Germanic insistence upon personal prestige, which gives us the punishment of insults in local courts, and which, in the crime of scandalum magnatum, left a very definite mark in the fact that words derogatory or disrespectful were actionable (or criminal) if spoken of a peer, although they were not otherwise defamatory. This irresistibly reminds us of the fact that there was once a tendency for ordinary persons to treat almost any tort as a personal affront: the abbot of Bury will complain in the King’s Court that the bishop of Ely infringed his liberty “so that the abbot would not have the shame which the bishop did him for £100, nor the damage for 100 marks”,1 and in local courts such allegations of shame are very common.2

The ecclesiastical element is discernible in the early law of libel, but its influence was greatest (as we shall see) in the law of slander. The Star Chamber pleadings in print show that as early as 1493 that court entertained complaints of defamation of private persons,3 and it is curious to note how constantly defendants plead that the plaintiff’s bill is “seditious and slanderous”;4 malicious prosecutions and complaints before the prerogative courts were very frequently alleged as an argument against the jurisdiction which they exercised, and it may be that these courts were led to take notice of defamation of private persons in consequence of their suspicions that their procedure was particularly liable to be misused. As we have seen, malicious prosecution and defamation were closely connected in the church courts.

The greatest element in the formation of libel law, however, was political. Down to 1605 the main thread is the obscure history of scandalum magnatum. The statutory changes in this crime were apt to occur at moments when treason also was being extended, and the statutes of Mary and Elizabeth treated the crimes of “public libel” (scandalum magnatum), “private libel” and sedition as being substantially the same, or at least closely related.

The Roman element appeared at a critical moment. Libel having become primarily a political offence, it immediately became involved in the early Stuart mysticism of the Crown, and for centuries there had been a temptation to turn to Roman law when the arcana of government were under discussion. Naturally it was in the Star Chamber that the experimental work took place, but the eagerness of the common law courts to share in it is worthy of notice. In 1606 Coke asserted that libel could be prosecuted on indictment as well as in the Star Chamber, and already the common lawyers had extracted from the statute a civil remedy for the slander of nobles.

THE LAW OF LIBEL, 1605-1641

The generation between De Libellis Famosis and the abolition of the Star Chamber was the period during which the foundations of the modern law were laid down. The old distinction between public and private libels, even more than the distinction drawn in the statutes, helped to separate seditious from other libels. The vague authority of the law of God is gradually replaced by the alternative theory that libels are punishable because they disturb the State (if directed against magnates and magistrates), or because they provoke a breach of the peace (if directed against private individuals). This was by no means a fictitious or merely technical justification; the great vogue of the fashion of duelling at this moment seems to have given cause for great concern to the government. Already, too, it was settled that truth was not a defence. This was a break with Roman authority, and also with the construction which would seem required by the English statutes; the excuse given for the rule is that a grievance should be redressed by law, and not by the party himself using force, or circulating extra-judicial accusations. As this period progresses, there are signs of the modifications of this rule. Hudson (writing before 1635) states that spoken words (even against a magnate) can be justified by showing their truth, but written words are punishable in respect of the very fact that they were written.1 Here we seem to see the influence of certain ordinances against writings and printed books which we shall mention later. The theory seems to regard writing as so deliberate an act that writing defamatory matter was criminal; words, on the other hand, were felt to be more spontaneous and irresponsible, and so justification could be pleaded. The rule as stated by Hudson is, of course, chiefly noteworthy as being an early sign of the different treatment of spoken and written defamation.

We are not yet at the point when libel and slander were distinguished along modern lines. Words still could be treated as libels,2 and writings were actionable at common law as slander.3 The distinction as yet is primarily one of courts and procedure. Action on the case for slander was clear and definite; it was in the Star Chamber that the newer and vaguer body of law was developed under the heads of scandalum magnatum, libel and seditious libel, which in the end coalesced into the law of libel. Hudson’s distinction is certainly one indication that the rules of libel apply particularly to written defamation, and it may be that the distinction is itself a reflection of the fact that slander at common law had a different rule which in practice was generally (although not always) concerned with spoken words. Hudson’s distinction may therefore be the result of common law example influencing the Star Chamber.

One other point calls for notice. The Star Chamber was not confined altogether to its criminal jurisdiction, and in cases of libel the court sometimes gave damages to the injured party as well as imposing a fine on the offender.

ACTION ON THE CASE FOR WORDS

So far, we have traced those elements which contributed to the formation of a law of libel. It is now time to examine the other line of development which culminated in slander.

At the beginning of this chapter we gave some examples from local courts. They are of two distinct orders. In some of the cases the plaintiff is complaining of words which he regards as affronts and insults; in others, the plaintiff asserts that he has suffered in loss of money rather than loss of pride. Hence we find that defamatory statements which result in the breaking-off of business negotiations could be made the subject of an action for damages in the manorial or the county court. When the common law courts began to entertain actions for slander, they made provision for both types, but only slowly did they devise special rules for each.

The early cases are all of them interesting from different points of view. Thus, the first reported case1 on defamation in the Year Books arose because one Lucy called Seton, J., a justice of the common pleas, who was entering the exchequer for a council, “traitor, felon and robber”. Seton proceeded against her by bill demanding £1000 damages. A jury of attorneys found her guilty but reduced the damages to 100 marks. The court, however, reserved the question whether the damages should be arrested. Several cases late in the fifteenth century allege that the defendant defamed the plaintiff by calling him his villein. In 1462, for example, a plaintiff counted that the defendant “contriving to prejudice the plaintiff’s name and fame and to get his goods and lands, published and affirmed that he was the defendant’s villein” and lay in wait to catch him, whereby the plaintiff was prevented from going about his business.2 It seems to have been agreed by all that the action would not have been good unless the plaintiff said that he had been impeded in his business. Whether this means that the defamation is only actionable if special damage is pleaded, or that the defamation is not itself actionable unless accompanied by another tort, was left conveniently obscure.

Later in the reign the matter was raised again in a case which lasted several years. In 1475 a plaintiff3 used exactly the same sort of count as we saw in 1462. The defendant had difficulty in framing a plea,4 but eventually issue was joined on the plaintiff’s status, and a jury found that he was free. Judgment for damages therefore followed. Two years later the case came up to the King’s Bench on a writ of error.1 After long debate, Billing, C.J., and Needham, J., both agreed that “there are divers cases in our law where one may have damnum sine injuria; thus the defamation by calling a man thief or traitor is a damage to him in our law, but no tort”. Even so, the court reserved its judgment, “for as much as this is the first time this matter has been argued”. Nothing further is reported. The general trend of the argument in the King’s Bench seems to be that the defamation may aggravate a trespass, but is not a cause of action in itself; in this particular case, the principal trespass alleged consisted merely of threats, preparation and intention. Even admitting that the plaintiff was consequently unwilling to go out of doors, there was great doubt whether an action lay.2

Meanwhile, the common law courts looked with jealous eyes upon the jurisdiction of the church courts over defamation. Prohibitions were issued freely in the reign of Edward IV, and in one case3 we have the interesting remark that “if a man has robbed me, and I afterwards tell it in the hearing of other people, and he then would sue me [for defamation] in court christian, I shall have a prohibition, for I might have had an appeal”. This seems to be the first indication that the King’s Court will prohibit defamation suits in church courts where the imputation was a crime cognisable in common law courts. If once this position was established, then it would soon become necessary for the common law courts to give remedy for those defamations which they forbade the church to deal with. The development therefore follows the line that (a) an imputation of a crime cognisable in the common law courts ought not to be treated by the church as defamatory, for the church might thereby impede the right of prosecuting at common law;4 it was soon afterwards observed (b) that even in cases which did not involve defamation a defendant might try to justify a trespass, for example, by alleging matter of a spiritual nature,5 and cases of this sort gave a great deal of trouble, but their ultimate effect was to make it clear (for a time at least) that a court could not usefully meddle with matters if it had no jurisdiction to try those issues which must inevitably be raised; it was therefore admitted (c) that an imputation of purely spiritual crimes was clearly outside the jurisdiction of the royal courts, and was not subject to prohibition.

The stages by which the common law finally overcame these difficulties are no longer ascertainable, but a case of 1497 contains an emphatic dictum1 that “defamation is a purely spiritual offence which can only be punished there”, although by 1535 it seems assumed that if the imputation is one of an offence triable at common law, then the common law courts will treat it as an actionable defamation.2 From that date onwards, slander has a continuous history in the common law courts, and little more than a century later it was possible to write a little book on the subject.3

It will be noticed that the first type of slander to be actionable in the common law courts was the sort which imputed a common law crime (as distinguished from an ecclesiastical crime). The royal courts were probably forced to assume this jurisdiction because they had already prevented the church from exercising it. At the same time, they were well aware that this type of slander was commonly associated with acts which constituted a trespass to the person—indeed, it was almost common form when counting on an assault and battery to add allegations of insult too. Hence slanders of this type retained as a relic of their early association with trespass the rule that the damages were at large, and this in spite of the fact that actions on the case were normally actions for special damages. As the law became more closely classified, such slanders were said to be actionable per se.

The list of slanders actionable per se was steadily lengthened during the seventeenth century, sometimes for reasons of policy frankly stated, and sometimes as a result of argumentation of an artificial kind. An immense chapter was added when imputations against holders of offices and members of professions and trades were treated as actionable per se; the number of cases brought by justices of the peace and clergymen would almost suggest that the innovation was due to the fact that they needed the same protection as scandalum magnatum afforded to the highest ranks of the church and the law.

SPIRITUAL SLANDER AND SPECIAL DAMAGE

As we have seen, a slander may be regarded either as an insult, or as a cause of pecuniary damage. Both aspects were known in the local courts during the middle ages, and as we have just seen, the former type was recognised in the royal courts in the sixteenth century and onwards. The latter type seems first to appear in a case1 of 1593. Here words were used which the court chose to regard as not imputing any offence cognisable in the lay courts.2 Nevertheless, the plaintiff recovered her special damage, viz. the loss of a marriage which was prevented as a result of the scandalous statements. Originally it was felt necessary to defend this innovation against the church. It was still the theory that general jurisdiction over defamation belonged to the church (subject to prohibition in certain cases). The new rule annexed the whole of the church’s remaining jurisdiction if the plaintiff proved special damage; as the lay courts put it, defamation may be a “spiritual” crime, but the damage it causes is temporal.

The old dilemma between spiritual and temporal crimes which used to decide whether the action should be brought in a church court or in a lay court, henceforward will decide in many cases whether special damage need or need not be pleaded before the lay court. The results were far from satisfactory.

THE LAW OF SLANDER DOWN TO 1641

Having already surveyed the progress made by the law of libel down to the date of the abolition of the Court of Star Chamber, it now remains to ascertain the content of the law of slander at the same date.

The continued existence of the ecclesiastical courts on the one hand, and of the Star Chamber on the other, was sufficient reason for the failure of the common law to develop the criminal side of defamation which was more adequately dealt with elsewhere. They therefore concentrated upon the action for damages, and had already distinguished the two familiar categories of the modern law. Slanders actionable per se were originally imputations of temporal crimes, but by the close of this period reflections on fitness for office, skill in trade or profession, and imputations of certain diseases were added to the list.3 These exceptions from the general nature of actions on the case show a clear understanding of the problem, and leave no doubt that the common law had the will and the skill to create a saisfactory law of defamation as long as it had a clear field before it. The fact that it did not complete the scheme is due to the difficulties created by the ecclesiastical jurisdiction. There is every reason to believe that those difficulties were real at this moment; the church courts were still powerful, and the Reformation and the royal supremacy had surprisingly little effect on the relation of church and state judicatures. For a time there must have been great force in the argument that it was useless to entertain an action where a “spiritual” offence was imputed, unless the court had the means of trying the truth of the imputation, which would most commonly be put in issue by the defence.

Real as this difficulty was, the common law courts were ready to circumvent it. They had by this time resolved to entertain actions where the imputation was one of merely spiritual offences,1 if special damage was proved, and were apparently ready to deal in their own way with an issue on a plea of justification. The formal reason for the distinction between the two classes of slander therefore became fictitious rather than real. The distinction unfortunately persisted, and we may well ask why the common law, which was making such energetic advances in the law of slander, should have stopped short at this point.

The answer most probably lies in the fact that the common law courts were dismayed at the mass of slander cases which came before it. This almost certainly was a new phenomenon; lawyers do not generally complain of too much business, and as a rule we have seen courts competing keenly for business. They realised, however, that there was some sort of social problem involved in defamation. The Star Chamber seems to have felt that severity was the proper remedy; the common law preferred to discourage such litigation, hoping, perhaps, that the effervescence of the Shakespearean age would soon subside.2 Now the requirement of special damage was an admirable means of excluding a large class of cases which might plausibly be regarded as frivolous, and so the retention, and indeed the increased emphasis on this distinction, may well be attributed to the policy of discouraging actions for defamation.

They even went further, and deliberately debased the quality of the law in order to stem the demand. In this period, and in the eighteenth century also, much ingenuity was spent in arguing that words be taken in mitiori sensu, and should not be construed as defamatory unless no other meaning could be read into them. Great pains were necessary in pleading to escape this rule. Thus, in one well-known case, it was held not actionable to say that “Sir Thomas Holt struck his cook on the head with a cleaver and cleaved his head; the one part lay on one shoulder and another part on the other”, for it does not appear that the cook was dead, and so the imputation may be only of a trespass; as the court observed, a little ambiguously, “slander ought to be direct”.3 So too if a married woman says: “A. stole my turkeys”, the words are not actionable, for a married woman could have no property in chattels;4 a few years earlier, however, this rather fine point had been rejected.5

The law regarding publication was already receiving attention, although it had not yet reached a satisfactory position. Publication to a third party was clearly necessary, for in no other way could damage result; but a curious doctrine—perhaps imitated from the statute De Scandalis Magnatum—was sanctioned by the dicta in the Earl of Northampton Case1 that one can justify a slander if it is merely a repetition of what someone else said. Thus if A. says that B. said something defamatory of C., then A. could justify by proving that B. did in fact use those words.

Somewhat in a class by itself was slander of title. This consisted in false statements by a third party to an intending purchaser of land throwing doubt upon the vendor’s title, in consequence of which the negotiations for the sale are broken off. Examples occur from 1585 onwards, and one of the earliest cases2 had already made it clear that the action would not lie where the third person himself pretended, rightly or wrongly, to be entitled.

The state of the law of slander at this period is quickly seen from an examination of any old abridgment, when it will be clear that a vast mass of case law was accumulating at such a pace that lawyers had to compile dictionaries, as it were, of abusive and obscene expressions (including slang) in order to ascertain how particular language had been treated in previous cases. It will also be apparent that many highly damaging expressions were held to be not defamatory at all, or only with special damage, while others, seemingly less serious, fell under the ban. As Sir William Holdsworth remarked,3 perhaps the worst kind of case law is that which grows up around the interpretation of words, deeds, wills—and we may add, statutes.

THE RESULTS OF THE FALL OF THE STAR CHAMBER

With the abolition of the Star Chamber as from August 1, 1641, a new situation was created. For twenty years confusion was inevitable. Cromwell’s Council of State had to continue the more questionable practices of the Star Chamber, and at the Restoration it was clear that much useful work done by the Star Chamber would have to be continued by constitutional means. It was therefore tacitly assumed that the Court of King’s Bench succeeded to as much of the Star Chamber’s jurisdiction as was consistent with current constitutional thought. Consequently the Star Chamber’s law of libel was henceforth to be administered by the same court as had developed the common law of slander; inevitably the two bodies of law were bound to influence each other, and tended to become more coherently combined into something approaching a systematic law of defamation.

As we have seen, the law of slander operated very capriciously, and it is natural that more enlightened judges should try to amend it, or, failing that, to use their new jurisdiction in “libel” to mitigate its defects. Holt, Hale and Twisden tried to establish a rational rule that “words should stand on their own feet” and be deemed to have the meaning which bystanders would naturally give them, but were unsuccessful.1 Partial relief came from the fact that the law of libel was not encumbered with the mitior sensus rule, and was also free from the requirement of special damage. It therefore only remained to find some way which would bring cases out of the category of common law slander into the category of libel. As early as 1670 Hale allowed an action on words which were too vague to be a common law slander, because in this case the words were written.2 He took the view that many defamatory words spoken in heat could be safely ignored, but if they were written, then the obvious presence of malice would make them actionable, and actionable without special damage. The law of libel was thus used to supplement the law of slander. But as in so many other cases, the law was ready to admit a novelty, but reluctant to abolish an anachronism. The newer and more rational law of libel was welcomed gladly in cases of written defamation, but the mitior sensus rule and the rules about words actionable per se, and words actionable on special damage, remained in force if the defamation was by speech only. The distinction between spoken and written defamation therefore became vital, and has proved to be permanent.

The Star Chamber generally treated libel as a crime, although occasionally the award of damages shows that it might be considered also as a tort. But it is clear that the Star Chamber did not take any pains to distinguish the criminal from the tortious aspect of defamation, for there was no particular need for it. In the common law courts, however, the line between crime and tort was fairly clear, and highly important. Hence the Star Chamber rule that truth is no defence had to be reconsidered when libel came into the common law courts. They naturally retained their own rule about justification when dealing with libel as a tort (thus keeping it parallel with slander), and followed the Star Chamber rule for criminal libels.

The Star Chamber had little law on privilege as a defence, although there is some indication that it recognised statements made in the course of judicial proceedings as being to some extent privileged. The common law began to recognise privilege3 as early as 1569, and by 1606 held that the privilege could be lost if malice was present.4 These beginnings, however, did not develop to any great extent until the time of Lord Mansfield.

The law of slander has undergone very little substantial change in England since the close of the seventeenth century. The distinction between slanders actionable per se and those actionable only for special damage has undergone very little change. One exceptionally hard case, however, has been remedied by the legislature. The imputation of unchastity in a woman was not generally an imputation of a temporal crime, and so was not actionable per se. A few local jurisdictions, notably London, claimed a custom of carting “whores”. The city courts, therefore, treated the use of this expression as actionable per se, and after some hesitation extended the rule to a few other terms of similar import, but it is doubtful whether the common law courts would recognise the custom.1 Not until 1891 did the Slander of Women Act make imputations of unchastity actionable per se.2 In America, many states have enlarged the class of slanders actionable per se, and some states have gone so far as to abolish the requirement of special damage.

LIBEL AND THE PRESS

The invention of printing was not at first put to the ephemeral although dangerous use of political controversy, but as soon as the reduction of costs permitted this new development, governments throughout Europe had to deal with the problem of the press.

A long line of proclamations and statutes dealt with the new menace. According to one enactment, printing might constitute a statutory treason,3 and succeeding statutes settled a policy of treating printing as an overt action of treason.4 Still more numerous were the proclamations which regulated the book trade. As early as 1538 a proclamation required a licence from the Privy Council or a bishop before any English book could be printed,5 and for a century and a half there is a steady stream of proclamations directed against unlicensed printing, and heretical and seditious literature. The system of licensing plays was regulated by proclamation6 in 1661, although it was in fact a century old by this time, and many statutes from 1543 onwards7 punished profane interludes and plays. Statutory in its origin, the control of the stage was finally appropriated as part of the prerogative after the Restoration. A proclamation of 1668 tried to prevent the hawking of newspapers in the streets,8 and in 1688 the peddling of books was forbidden,9 after a vain attempt to license the pedlars.1 Meanwhile the legitimate book trade, like other trades in the middle ages, was put under the regulation of a city company, the stationers,2 while enforcement lay with the Privy Council, the Star Chamber, and (for theological matters) the High Commission, who took the view that all printing, however innocent, was a crime unless the work had been previously licensed. Conversely, the government would sometimes give monopoly rights of printing works which it considered meritorious or useful, and in this way the beginnings of copyright appear.

Amid such a vast mass of regulation, there was little need for the law of libel, as far as the press was concerned. The abolition of the Star Chamber and the Court of High Commission, however, left a void which the common law was later called upon to fill. The fall of these courts, moreover, removed the notion that press offences were peculiarly matters of the royal prerogative, and so legislation became increasingly important. Now as long as the Star Chamber and High Commission lasted, legislation on the press had been almost entirely by proclamation.3 The events of 1641, therefore, created the utmost confusion, and the stationers’ company put in a powerful memorial to the victorious Parliament showing that public safety depended on the continued control of the press, that the economic position of printers, publishers and authors had come to depend on the existence of copyright, and that the practical working of copyright depended on the company, which in effect kept a register of copyrights. They further argued that copyrights were property, that they ought to be as assignable as other forms of property, and that their destruction was unthinkable.4

The Parliaments of the interregnum, therefore, maintained the system and set up boards of licensers. At the Restoration the system was continued intermittently by statute until 1692, when the current act came to an end. A pamphlet controversy ensued, the act was renewed until 1694, when it was finally allowed to expire.

Once again a large mass of press law came to a sudden end. After a prolonged controversy, the Copyright Act5 of 1709 retrieved the results of nearly two centuries of effort to establish literary property, while the common law courts had to rely on the law of treason, sedition and libel to carry out whatever control of the press might be needed.

It was no longer possible to say that printing was criminal merely because it was unauthorised, and so some positive ingredients of press offences had to be sought. Holt thought that “it is very necessary for all governments that the people should have a good opinion of it”1 and from this it seemed to follow that any publication which reflected upon the Government was criminal. The same idea was applied to libels against private persons which brought them into hatred, ridicule or contempt. The Star Chamber, moreover, had permitted much strong language by plaintiffs against defendants, of which “maliciously” in the description of publication was characteristic. As long as libels were normally the outcome of reckless sedition and factiousness the term was appropriate, but under changed conditions it caused much trouble later on.

LIBEL AND JURY TRIAL

The law of libel had little contact with juries in its early days, and when that contact finally occurred, there was much controversy as to the position of the jury. The earliest cases seem to run on the principle that the jury should find the facts, and that the court should determine whether the matter published constituted a libel. A remarkable exception was the trial of the Seven Bishops, which, as several writers have observed, was altogether so anomalous that no argument, legal or historical, can be based on it.2 In the eighteenth century the absence of a licensing system thrust the whole burden of surveillance over the press upon the courts, and trials for seditious libel grew steadily more frequent. The nature of malice and the question of intent were much discussed, and there arose an opinion that the jury were entitled to give a general verdict of guilty or not guilty according to their own opinion whether the writing constituted a libel. It required all Erskine’s eloquence to make this look plausible in the face of the mass of authority which was against him; indeed, the basis of his view was not legal, but political, and his famous argument in the Dean of St. Asaph’s Case3 was delivered more in the hope of stimulating Parliament to change the law, than of convincing Mansfield that the law was in his favour. He failed in the latter, but succeeded in the former object, and in 1792 Fox’s Libel Act4 was passed, in spite of the unanimous opinion given by the judges at the demand of the House of Lords.5 In form declaratory, it was in substance a momentous change in the law of libel. Until 1792 the strict legal theory has been accurately summed up in these words: “a seditious libel means written censure upon any public man whatever for any conduct whatever, or upon any law or institution whatever”.6 The crime consisted in the publication of matter of a particular sort, and not in the publisher’s intention. The obscurity of a proviso robbed the act for a time of some of its effect,1 but inevitably there followed the result that juries would not regard the expression of reasonable political dissent as being criminal; criminality therefore shifted from the nature of the words to the intention of the writer. It is a curious reflection that the unnecessarily picturesque language of indictments, even before the act, loaded the defendant with abuse which was technically superfluous, although it had the effect of seeming to put the defendant’s intention in issue. Thus the Dean of St. Asaph was indicted as “being a person of wicked and turbulent disposition, and maliciously designing and intending to excite and diffuse among the subjects of this realm discontents, jealousies and suspicions of our lord the King and his Government, and disaffection and disloyalty . . . and to raise very dangerous seditions and tumults”—with much more irrelevant matter as to the defendant’s intent.2

Before the act, criticism, because it was criticism, rendered those who published it guilty of libel. After the act the application of this rule of law was left to the jury, and they quite naturally would not regard as criminal expressions whose offensiveness consisted merely in being distasteful to the authorities. It took many years, however, before a new definition of seditious libel was reached. This was probably due to the fact that the revolutionary wars soon began, and for some time juries found themselves on the side of the government rather than of its critics: they certainly felt, too, that expressions might become dangerous at moments of intense political excitement although in normal circumstances they would do no harm. The likelihood that the publication would produce tumult or disorder was, therefore, frequently considered as the principal factor in deciding whether a publication was criminal or not.

LIBEL AND NEWSPAPERS

Seditious libel became rarer after the Reform Act of 1832 and the cessation of the war had relieved some, at least, of the tension in political affairs. The rise of newspapers, however, created special problems in connection with libels on private persons.

In the course of the eighteenth century it was gradually being settled that although truth was not an absolute defence in libel, yet it could be proved in order to reduce damages or mitigate punishment.3 Lord Campbell’s Act4 introduced another mitigating circumstance, namely that a prompt and suitable apology had been published, while in civil cases a newspaper owner might further show that the libel was inserted without malice and without negligence. In criminal cases the act made truth a defence (thus reversing an age-old doctrine) if it could be shown that publication was for the public benefit. In 1881 elaborate arrangements were made for the registration of newspapers with the object of enabling the public to ascertain whom to sue,1 and in 1888 the legislature dealt with the common difficulty when a newspaper published a report of a public meeting in the course of which defamatory matter was spoken and reported. In such cases the act conferred a qualified privilege, which may be lost if there was malice, or if the report was unfair or inaccurate.2

[1]Glanvill, i. 1.

[2]But see below, p. 422 n. 1.

[3]Stephen, History of Criminal Law, ii. 198; he has neglected the technical distinction between fine and amercement, however; see Fox, Contempt of Court, 118 ff.

[1]Pollock and Maitland, i. 199 n. 1. There is the important possibility of early rolls being wrongly classified.

[2]Ibid., ii. 449.

[3]Jeudwine, Tort, Crime and Police, 83.

[1]See generally, Winfield, Province of the Law of Tort, 190 ff. In 1292 the king’s bench regarded a “civil” action as one which tried proprietary rights as distinct from an actio iniuriarum (Sayles, King’s Bench, ii. 134), although in another case in the same term it held that an action was civil and not criminal because it laid damages, notwithstanding the fact that the crown was plaintiff (ibid., 136). Then, too, an assize of novel disseisin may contain talk of robbery: Eyre Rolls (Selden Society, vol. lix), no. 232 (1221).

[2]This rule could be transgressed unwittingly when a statute imposing penalties acquired an artificial date and so became in fact retrospective. On the ascription of fictitious dates to statutes, see Plucknett, Legal Chronology (Handbook of Dates, ed. C. R. Cheney), Sir Cecil Carr, The Citation of Statutes (Cambridge Legal Essays) and Calendar-Year Statutes, Law Quarterly Review, lvi. 459.

[3]On this, see Ernst Levy, West Roman Vulgar Law, 103; Jerome Hall, Nulla Poena sine Lege Yale Law Journal, xlvii. 165; Marc Ancel, in Annales de l’Institute de Droit comparé de l’Université de Paris, ii. 245-272; Paul Weidenbaum, Liberal Thought and Undefined Crimes, Journal of Comparative Legislation [1937], 91. A few further references are in Alipio Silveira, Interpretación de las Leyes, 17.

[1]Above, p. 9.

[2]Cf. the remark that, in compositions, it is the Christian rather than the Germanic spirit which is at work: Fustel de Coulanges, La monarchie franque, 483.

[3]II Edmund, 1. 7 (941-946).

[4]I Canute, 5 a (2 b). The date is 1020.

[5]Leges Henrici Primi, 83 (6).

[6]Similarly, the kinsman of a convicted thief could secure his posthumous rehabilitation by himself undergoing the ordeal; if this was successful, the remains of the deceased were exhumed and reinterred in consecrated ground: III Aethelred, 7 (c. 997). For late survivals in a civilised community, see C. Petit-Dutaillis, Droit de vengeance dans les Pays-Bas au quinzième siècle (Paris, 1908).

[1]Alfred, 42.

[2]Pollock and Maitland, i. 48.

[3]II Canute, 12-15.

[4]Details in Pollock and Maitland, ii. 454-457 (but cf. Goebel, Felony and Misdemeanour, 402 ff.).

[5]Glanvill, i. 2.

[1]For pleas of the sword, and Norman criminal law in general, there is a convenient summary in Le Foyer, Exposé du droit pénal normand au XIII^e siècle (Paris, 1931). Cf. Ernest Perrot, Les Cas royaux (Paris, 1910).

[2]Borough Customs (ed. Bateson, Selden Society), vol. i; Law Quarterly Review, lv. 182.

[3]The rules, as between English and Norman, were settled in Willelmes asetnysse (in Robertson, Laws of the English Kings, 233).

[4]Cf. above, p. 121. Appeals of breach of the peace occur occasionally. For valuable details see Sayles, King’s Bench, ii. p. lxxxi. For appeals of trespass in local courts tried by wager of law, see Court Baron (Selden Society), 76.

[1]For an appeal of mayhem in the King’s Bench when the appellant had judgment for damages, see Attorney-General v. Hunston (1488), Bayne, Cases in Council of Henry VII (Selden Society), 62, 64-67.

[2]Jocelyn de Brakelonde, Chronica (Camden Society, vol. xiii), 51-52; Henry had said, in battle, that the king was dead. Cf. Select Pleas of the Crown (Selden Society, vol. i), no. 115 (1214) for the felony of announcing the king’s death (which spread despondency and alarm). Numerous appeals of treason are listed in L. W. Vernon Harcourt, His Grace the Steward, 349 n. 1.

[3]Proceedings and Ordinances of the Privy Council (ed. Nicolas), vi. 129 ff.

[4]R. v. Toler (1700), Ld. Raym. 555.

[5](1819), 1 B. & Ald., 405; 59 Geo. III, c. 46. On the relation of acquittals on appeal and the suit of the crown, see 3 Hen. VII, c. 1, and Blackstone, Commentaries, iv. 335.

[6]Text in Stubbs, Charters; translated above, pp. 112-113.

[1]Putnam, Proceedings before Justices of the Peace (Ames Foundation); Kent Keepers of the Peace (ed. Putnam, Kent Archaeological Society).

[2]1 Edw. III, st. 2, c. 17 (1327); 8 Hen. VI, c. 12 (1429). These acts dealt with removing a genuine indictment from the file; whether the placing of a false indictment upon the file is criminal, is entertainingly discussed in a star chamber case: Y.B. 2 Richard III, Michs. no. 22, ff. 9-11.

[3]1 Hen. V, c. 5 (1413). The common law writ De Idemptitate Nominis for the relief of those whose property had been seized in error was quite inadequate; see the complaints in Rot. Parl., ii. 277 no. 20 (1363).

[1]Pollock and Maitland, ii. 662, but the examples there given must be compared with others contra. In 1290 it was held that the king’s suit could only be taken on an indictment, an appeal, or if the prisoner was found with the mainour, Sayles, King’s Bench, ii. 26 (with which compare the protest, ibid., 131).

[2]Their history will be found in Holdsworth, ix. 236-245. Many acts made provision for rewards to informers. The crown might also use exceptional procedure, e.g. when James I turned detective: Sanchar’s Case (1612), 9 Rep. 114 at 120 b.

[3]13 Edw. I (1285).

[4]It is very rare for a criminal jury to pass in the absence of the accused; see, however, Sayles, King’s Bench (Selden Society), i. 102 (1282).

[1]Eyre Rolls (Selden Society, vol. lix), no. 1005 (1221).

[2]Y.B. 2 Edward III, Hil. no. 17; 27 Ass. 41; but see also Bracton, f. 134.

[3]Bracton, f. 135-136, remarks that abjuration (in other circumstances) is as old as the Assize of Clarendon (1166).

[4]21 Hen. VIII, c. 2 (1529).

[5]Thornley, “Destruction of Sanctuary”, in Tudor Studies presented to A. F. Pollard, 182-207. See generally, N. M. Trenholme, The Right of Sanctuary in England (University of Missouri Studies, vol. 1 no. 5), 1903. For the very similar “avowrymen” of Cheshire, see R. Stewart-Brown, Avowries of Cheshire, English Historical Review, xxix. 41.

[6]32 Hen. VIII, c. 12 (1540); Numbers, xxxv. 6; they were abandoned under Edward VI (Thornley, loc. cit.).

[1]1 & 2 Phil. & Mar., c. 13 (1554). On the defendant’s examination, see Bayne’s introduction to Cases in Council of Henry VII (Selden Society), xciv ff.

[2]This is discussed by Sir James Stephen, History of Criminal Law, i. 219, 236-238.

[3]2 & 3 Phil. & Mar., c. 10 (1555).

[4]11 & 12 Vict., c. 42 (1848).

[1]Above, p. 125.

[2]Above, p. 121.

[3]Bracton, f. 143 b.

[4]Ibid., f. 143.

[5]Fortescue, De Laudibus, c. 27.

[6]History of Criminal Law, i. 301-302.

[7]Thayer, On Evidence, 124, where the method of “trying” a challenge to a juryman is described.

[8]Above, p. 127.

[9]22 Hen. VIII, c. 14.

[1]De Republica Anglorum (ed. Alston), 94 ff.

[2]Stephen, History of Criminal Law, i. 350.

[1]Authorities are cited in Holdsworth, v. 192.

[2]Stephen, op. cit., i. 357 ff.; Holdsworth, ix. 230-235.

[3]7 & 8 Will. III, c. 3 (1696).

[4]6 & 7 Will. IV, c. 114.

[5]Y.B. 28 Henry VI, Pasch. 1 (1450).

[6]Thayer, Evidence, 129.

[7]Thayer, Evidence, 120, 133; Holdsworth, iii. 638.

[1]3 Inst. 26-27; Nemo de capitalibus placitis testimonio convincatur—Leges Henrict Primi, xxxi. 5.

[2]5 Eliz., c. 9 (1563).

[3]2 & 3 Phil. & Mar., c. 10 (1555).

[4]31 Eliz., c. 4 (1589).

[5]4 Jac. I, c. 4, s. 26.

[6]1 Anne, stat. 2, c. 9 (1702). See now S. Rezneck, The Statute of 1696, Journal of Modern History, ii. 5-26.

[1]See the narrative of a case of 1542 related by G. R. Elton, Informing for Profit, Cambridge Historical Journal, xi. 149 at 159.

[2]5 & 6 Edw. VI, c. 11 (1552); 7 & 8 Will. III, c. 3 (1696). For the history of the idea, see Holdsworth, ix. 203 ff.

[3]In the Anglo-Saxon period (and later still by local customs) an accused person might sometimes obtain acquittal by swearing an oath that he was innocent; such an oath is, of course, in the nature of an ordeal, and does not support evidence of any sort.

[4]Stephen, History of Criminal Law, i. 440 ff.

[5]11 & 12 Vict., c. 42 (1848).

[6]Stephen, op. cit., i. 444.

[7]61 & 62 Vict., c. 36 (1898).

[8]On this, and on the privilege against self-incrimination, see Bayne’s introduction to Select Cases in Council of Henry VII (Selden Society), xciii ff., and E. M. Morgan, The Privilege against Self-Incrimination, Minnesota Law Review, xxxiv. 1-45.

[1]For the lengths to which this logic was pressed in Scotland, see Stephen, History of Criminal Law, i. 352.

[2]The procedure is described in Stephen, op. cit., i. 460; it consisted of an exculpatory oath by the accused, twelve compurgatory oaths, evidence for the accused, and a verdict by a jury. It is interesting to observe that centuries earlier, an accused who was “put to his purgation” with so many oath-helpers could “redeem the purgation” and so settle the matter by a money payment; Pollock and Maitland, ii. 538 n. 5. So, too, in civil matters a canonical plaintiff could prove his debt by witnesses, although in common law the defendant could make his defence by compurgation; ibid., ii. 347 n.1.

[3]2 Hen. V, stat. 1, c. 4 (1414); 8 Hen. VI, c. 4.

[4]11 Hen. VII, c. 3 (1495). Cf. above, p. 183.

[5]1 Hen. VIII, c. 6 (1510).

[1]See a full discussion by Frankfurter and Corcoran in Harvard Law Review, xxxix.

[2]See Gabel, Benefit of Clergy in England in the later Middle Ages; Stephen, History of Criminal Law, i. 459 ff.; Holdsworth, iii. 294 ff. For additional references, see A. L. Poole, Domesday Book to Magna Carta, 218 n. 4.

[3]Statute Pro Clero, 25 Edw. III, stat. 3, c. 4 (1352, not 1350 as generally stated).

[1]Y.B. 30 & 31 Edward I (Rolls Series), 530.

[2]Rot. Parl., iii. 333 no. 63.

[3]4 Hen. VII, c. 13 (1490, not 1487 as generally stated; Rot. Parl., vi. 426, 437).

[4]1 Edw. VI, c. 12, ss. 16, 14.

[5]21 Jac. I, c. 6 (1624, not 1622 as usually stated); 3 Will. & Mar., c. 9 (1691).

[6]6 Anne, c. 9 (1707, not 1705 as generally stated).

[7]18 Eliz., c. 7 (1576). Stephen, History of Criminal Law, i. 360, is in error in stating that the act abolished canonical purgation.

[1]25 Edw. III, stat. 6, c. 4.

[2]“When benefit of clergy was abolished in 1827 by 7 & 8 Geo. IV, c. 28, the Act [of Edw. VI extending it to peers] was overlooked, and on the occasion of Lord Cardigan’s trial in 1841 it was doubted whether, if he were convicted, he would not be entitled to the benefit of it, notwithstanding the Act of 1827. The question was finally set at rest by 4 & 5 Vict., c. 22” (1841): Stephen, History of Criminal Law, i. 462.

[1]1 P. & M., 304.

[1]From 1275-1285 rape was in a similar position.

[2]Conspiracy was defined by statute, 33 Edw. I (but not as a felony); for the few and unimportant statutory felonies created during the middle ages, see Stephen, History of Criminal Law, ii. 206-207.

[3]25 Edw. III, st. 5, c. 2. Cf. B. M. Putnam, Chief Justice Shareshull, University of Toronto Law Journal, v. 265.

[1]Rot. Parl., ii. 166 no. 15 (1348).

[2]11 Hen. VII, c. 1 (1495).

[3]7 & 8 Will. III, c. 3 (1696).

[4]Malice aforethought is occasionally alleged in actions of trespass: Sayles King’s Bench, i. 66 (1280).

[1]Leis Willelme, 22; Yntema, Lex Murdrorum, Harvard Law Review, xxxvi. 146-179. By custom, murdrum was not due in some counties, e.g. Cornwall (Y.B. 30 & 31 Edward I (Rolls Series), 240), and Kent (ibid., xl).

[2]52 Hen. III, c. 25; Prov. Westm. (1259), c. 22; Treharne, i. 173 n. 2.

[3]14 Edw. III, stat. 1, c. 4.

[4]By the Statute of Gloucester, 6 Edw. I, c. 9 (1278), it was enacted that there should be no need in the future to get a special writ from chancery authorising an inquest, but trial judges at gaol delivery should ask the jury if the homicide was accidental or in self-defence; “then the justices shall inform the king, and the king shall give him grace, if he pleases”.

[5]2 Edw. III, c. 2. For the effectiveness of this statute to restrain the royal prerogative see Sayles, King’s Bench, iii. p. xli.

[1]13 Rich. II, stat. 2, c. 1 (1390).

[2]12 Hen. VII, c. 7 (1497).

[3]23 Hen. VIII, c. 1 (1532).

[4]Woolmington v. Director of Public Prosecutions, [1935] A.C. 462, contains an elaborate history of certain aspects of “malice”. Marowe, De Pace (1503) in Putnam, Early Treatises, 378, speaks of manslaughter. Cf. Plucknett, “Commentary” in Putnam, Justices of the Peace (Ames Foundation), cxlvii ff.

[1]For some speculations and analogies, see Pollock and Maitland, ii. 497; as Le Foyer remarks (Droit pénal normand, 135) the story of the Spartan boy who stole a fox (told by Plutarch, Lycurgus) gives the ancient point of view.

[2]Britton, i. 56; Le Foyer, 133 n. 1.

[3]Bracton omits “lucri faciendi gratia vel ipsius rei vel etiam usus eius possessionisve”; these points are discussed in Stephen, History of Criminal Law, iii. 131 ff.

[4]The story told by a judge is in Y.B. 33 & 35 Edward I (Rolls Series) 503; the text-writer’s views are in Britton, i. 116, 138; the miracle is described in Stephen, i. 79.

[5]The averment of a man’s deceitful intention presented insuperable difficulties: Y.BB. 12 & 13 Edward III (Rolls Series), 83 (1339); “the thought of man shall not be tried, for the devil himself knoweth not the thought of man”—Brian, C.J., in Y.B. 7 Edward IV, Pasch. no. 2, f. 2 (1467). Cf. the comment “—words that might well be the motto for the early history of criminal law”: Pollock and Maitland, ii. 474-475.

[6]Abundant references will be found in Stephen, iii. 142-149.

[1]Le Foyer, Droit pénal normand, 149 ff.

[2]The control of weights and measures appears in the Anglo-Saxon laws, and in legislation during the next thousand years. For difficulties of enforcement see J. H. Thomas, Town Government in the Sixteenth Century, 69, 83.

[3]A petition that the forgery of private seals and their apposition to deeds should be punishable with life imprisonment upon indictment was rejected in 1371: Rot. Parl., ii. 308 no. 45. A forged warrant of arrest in 1497 cost only a fine of 6s. 8d. in the king’s bench: Bayne, Council of Henry VII, cliv n. 1.

[4]Bracton, f. 119 b.

[5]Ibid., f. 150 b.

[6]Mirror of Justices (ed. Whittaker, Selden Society), 25-28.

[1]Westminster II, c. 11 (1285). The less drastic remedy of Monstravit de Compoto given by the Statute of Marlborough, c. 23 (1267), was virtually suspended by the council early in the reign of Edward III: Sayles, King’s Bench, iii. p. cxix, app. l.

[2]2 Inst. 380.

[3]Long before the statute it seems to have been the practice, rightly or wrongly, for a lord to imprison in his own house a defaulting accountant: Eyre Rolls (Selden Society, vol. lix), no. 978 (1221). The point of the statute is that it requires the accountant to be confined in the royal gaol instead of in the lord’s private prison.

[4]Y.B. 13 Edw. IV, Pasch. 5 (1473). Cf. Glanvill, x. 13.

[5]The idea of “breaking bulk” occurs in a detinue case of 1315 Y.BB. Edward II (Selden Society), xvii. 136.

[6]Thus it was not larceny for a bailee to sell the chattel: Calendar of Patent Rolls, 1266-1272, 537.

[1]21 Hen. VIII, c. 7 (1529). This seems to be the earliest statute to put young offenders in a special category.

[2]The fluctuating authorities are collected in Holdsworth, iii. 364.

[3]39 Geo. III, c. 85.

[4]52 Geo. III, c. 63.

[5]7 & 8 Geo. IV, c. 29, s. 51.

[6]20 & 21 Vict., c. 54.

[7]7 & 8 Geo. IV, c. 29.

[8]24 & 25 Vict., c. 96.

[9]6 & 7 Geo. V, c. 50.

[1]Extortion by letter was made criminal by statutes of 1722 (9 Geo. I, c. 22) and onwards; the actual extortion of money by only verbal threats was held a constructive robbery in R. v. Jones (1776), 1 Leach, 139; threatening with intent to extort became a statutory felony in 1823 (4 Geo. IV, c. 54).

[2]Cf. Plucknett, “Commentary” in Putnam, Justices of the Peace (Ames Foundation), cxlii ff. for the relations of burglary and house-breaking.

[3]Westminster I, c. 13; cf. c. 20.

[4]Westminster II, c. 34. On these changes, see Pollock and Maitland, ii. 490-491.

[1]For rules on the recovery of stolen goods, see the notes in Y.BB. Edward II, xxiv. 92 (c. 1319). Kindly suitors who improperly restored stolen goods to their owner might get into trouble: Eyre of Kent (Selden Society), i. 80 (1313). Even if taken with the maynor, the thief forfeited everything to the king: Joyce Godber, Supervisors of the Peace, Bedfordshire Historical Record Sociery, 65 no. G.2: the fact that he was acquitted at the king’s suit would not save the forfeiture—ibid., 67 no. G.7.

[2]See the exposition in Pollock and Maitland, ii. 166 n. 2. At common law (but not in the Cinque Ports) the thief also forfeited goods of which he was bailee; below, p. 474.

[3]21 Hen. VIII, c. 11. Long before the statute, there may have been some similar writ—see the cryptic remarks of Bereford, C.J., in Y.BB. Edward II (Selden Society), xxiv. 116 (1319).

[4]Holdsworth, v. 110-111; Case of Market Overt, 5 Rep. 83 b (1596).

[1]Assize of Clarendon, c. 12 (1166); above, p. 113.

[2]Bracton’s Note Book, no. 67.

[3]Maitland, Select Pleas of the Crown (Selden Society), no. 169; s.c. Eyre Rolls (Selden Society, vol. 59), no. 1241.

[4]Court Baron (Selden Society), 64.

[5]Sayles, King’s Bench, i. 70 (1280); ii. 53 (1291). Cf. below, p. 684 n. 1.

[6]Eyre of Kent, I. 88.

[7]Putnam, Justices of the Peace (Ames Foundation), 55.

[8]Y.B. 25 Edw. III, Pasch. 2; cf. 27 Ass. 69 (1353).

[9]See the notes to [Ellesmere], Discourse on Statutes (ed. S. E. Thorne), 116.

[10]3 Will. & Mar., c. 9 (1691).

[11]This rule seems to have been non-existent in 1221: Eyre Rolls (Selden Society, vol. lix), no. 832, but well-established by 1253: Richardson and Sayles, Proceedings without Writ (Selden Society, vol. lx), 31-32.

[12]6 Anne, c. 31.

[13]7 & 8 Geo. IV, c. 29.

[1]For a story told by Bereford, see Y.BB. Edward II (Selden Society), xi, pp. xxix-xxx. See Ullmann, Medieval Theory of Criminal Attempts, Revue d’Histoire du Droit, xvii. 17-81, F. B. Sayre, Criminal Attempts, Harvard Law Review, xli. 821-859; Plucknett, commentary in Putman, Proceedings before Justices of the Peace (Ames Foundation), cliii.

[1]Charter of Henry I (1100) c. 8 (in Stubbs, Select Charters).

[1]See the indexes of actions in Select Civil Pleas (ed. Maitland), and Bracton’s Note Book (ed. Maitland).

[2]Bracton, f. 119 b.

[3]Above, p. 371.

[1]Westminster I, c. 20.

[2]Westminster II, c. 35.

[3]Pollock and Maitland, ii. 522; Holdsworth, iii. 318, 370; Winfield, Province of the Law of Tort, 191.

[4]I am indebted for these results to Mr. C. A. F. Meekings and Mr. A. W. Mabbs both of the Public Record Office.

[1]In post-mediaeval times the scope of indictable trespass was rather narrowed: Holdsworth, xii. 514.

[2]Sayles, King’s Bench, ii. 134.

[3]Marowe, De Pace, in Putnam, Early Treatises, 375. By “trespass” Marowe evidently means “indictable trespass” (i.e. misdemeanour). For the relations of tort and felony, see Holdsworth, iii. 331.

[1]Stated in Fitzherbert, New Natura Brevium, 86 H (but see Lord Hale’s note).

[2]F.N.B., 90 A.

[3]Ibid., 88 D and E.

[4]The first edition of Fitzherbert’s Natura Brevium (not mentioned in Beale’s Bibliography) was in either 1534 or 1537 (Putnam, Early Treatises. 34 n. 4); the author died in 1538.

[5]F.N.B., 87 L.

[1]Winfield and Goodhart, Trespass and Negligence, Law Quarterly Review, xlix. 359-378.

[2]22 & 23 Car. II, c. 9, s. 136 (1670); see above, p. 174.

[3]See Winfield and Goodhart, u.s.

[4]Above, p. 174.

[5]See the material collected by Winfield, History of Negligence in Torts, Law Quarterly Review, xlii. 184, and his App. A.

[1]See now, however, Winfield’s remark in Law Quarterly Review, lv. 450-451, where he preferred to regard the situation as still a tendency, rather than an established rule of law.

[1]The articles were reprinted and revised for the Select Essays in Anglo-American Legal History, where this passage occurs at iii. 480.

[2]Holmes, Common Law, 89.

[1]The Myth of Absolute Liability, Law Quarterly Review, xlii. 37.

[2]Huebner, History of Germanic Private Law (tr. Philbrick), 528.

[3]VI Aethelred, 59 [Editor: illegible character] (tr. A. J. Robertson).

[4]II Canute, 68, 3.

[1]F. Cimetier, Les Sources du droit ecclésiastique (Paris, 1930), 32.

[2]Huebner, op. cit., 527.

[3]Above, p. 445.

[4]Like tales of violence may occur in an assize of novel disseisin: Eyre Rolls (Selden Society, vol. lix), no. 232 (1221).

[1]Winfield, Trespass and Negligence, Law Quarterly Review, xlix. 360-361.

[2]Y.B. 6 Edward IV, Michs. no. 18, f. 7; Holmes, Common Law, 85-87; Holdsworth, iii. 375.

[1]By Rede, J., in Y.B. 21 Henry VII, Trin. no. 5, f. 27 (1506). This was not an accident case, but one where a defendant was held liable for a technical trespass to chattels by putting them into the plaintiff’s barn: his kind intention did not justify him.

[2]Wigmore in Select Essays in Anglo-American Legal History, iii. 506-507.

[1]Above, pp. 460-463.

[2]Wigmore, op. cit., 506.

[3]Winfield, Trespass and Negligence, Law Quarterly Review, xlix. 360.

[4]Holmes The Common Law, 89; below, p. 479.

[1]F.N.B., 87 L.

[2]Ibid., 93 G; case for damage to realty which did not amount to an entry upon it seems to be derived from the twelfth-century assize of nuisance, whose history is very obscure.

[3]“Nonfeasance or negligence,” said Coke in Earl of Shrewsbury’s Case (1610), 9 Rep. 50 b. The criticism by Holdsworth, viii. 469 n. 3, of Blackstone, Commentaries, iii. 211, for basing liability for fire and cattle-trespass upon “negligent keeping” would be unnecessary if that phrase had retained its older sense of “neglecting to keep”. Cf. Y.BB. Edward II (Selden Society), xxiv. 98, for a termor who might have a fee, by the “negligence” of the mortgagor to redeem.

[4]Above, p. 449; Glanvill, x. 13.

[5]If the chattel were merely in the defendant’s hand for a moment, in circumstances which did not amount to a bailment, then he is liable in trespass: Y.BB. Edward II (Selden Society), xxii. 290, when the defendant defaced a charter handed to him for his inspection.

[6]Y.B. 13 Richard II (Ames Foundation), 103-104 (1390). The general proposition as above stated, is implicit in the argument of Persay in Y.B. 46 Edward III, 19 (no. 19), that a declaration in case ought to allege a bailment expressly and omit vi et armis, and that if there were no bailment, then vi et armis must be alleged. Apparently the court inferred from the facts that a farrier was a bailee of the horse.

[1]In the Vulgate text, ou; in MS. Bodley 364, f. 90 b, plus que, “rather than”; in Exeter College, Oxford, MS. 134, f. 37 b, et nemye, “and not”. (I owe these readings to the kindness of Mr Derek Hall.)

[2]22 Ass. 94 (no. 41); record in Bulletin of Institute of Historical Research (1935), xiii. 36; C. H. S. Fifoot, History and Sources: Tort and Contract (1949), 330; A. K. Kiralfy, Action on the Case (1951), 154; A. K. Kiralfy, The Humber Ferryman and the Action on the Case, Cambridge Law Journal (1953), xi. 421

[1]Until 1504; 19 Hen. VII, c. 9. It was possibly forbidden by 18 Edw. III, st. 2, c. 5 (1344). It has been stated, however, that outlawry had been possible in actions on the case throughout the reign of Edward IV: Margaret Hastings, Common Pleas in the Fifteenth Century, 170.

[2]Dr Kiralfy, Cambridge Law Journal, xi. 424, would regard it as in direct line with certain actions on the case.

[3]Y.B. 46 Edward III, 19 no. 19 (1372); above, p. 469, n. 6; Ames, Lectures on Legal History, 130; Holdsworth, iii. 430.

[4]The contractual implications of assumpsit will be considered later: below, pp. 637 ff.

[5]Y.B. 11 Richard II (ed. Thornley, Ames Foundation), 227.

[6]As Winfield has pointed out, Law Quarterly Review, xlii. 198.

[7]Winfield, in Law Quarterly Review, xlii. 195.

[8]Ibid., 199.

[1]Ine, 74.

[2]Above, p. 97; Bracton, 124 b.

[3]Select Essays in Anglo-American Legal History, iii. 498-501.

[4]Ibid., 495; cf. Court Baron (Selden Society), 79.

[5]Ibid., 497. For an example of ratification, see Rot. Parl., i. 74 a, and for command, Eyre Rolls (Selden Society, vol. lix), no. 85.

[1]Rot. Parl., i. 17.

[2]A favourite joke among the peerage. Clifford nearly lost his life through trying it on a royal messenger in 1250: Pollock and Maitland, ii. 507-508.

[3]Rot. Parl., i. 24.

[4]Cf. Bulletin of the Institute of Historical Research, v. 132; Sayles, King’s Bench, ii. 19. For an alleged conviction on similar facts, see Pollock and Maitland, ii. 485 n. 5.

[5]This amercement is clearly of a police, rather than a penal, character and need not imply criminal liability (cf. the murdrum). For a suggested origin, see Eyre of Kent (Selden Society), i. 95.

[6]Court Baron (Selden Society), nos. 13, 34.

[7]Y.B. 30 & 31 Edward I (Rolls Series), 202 (1302).

[8]Eyre of Kent (Selden Society), i. 90 (1313). For a different interpretation of these cases, see 3 Holdsworth, 383.

[1]Borough Customs (Selden Society), i. 222.

[2]Holdsworth, iii. 387.

[3]27 Edw. III, st. 2, c. 19 (1353).

[4]Select Cases in Law Merchant (Selden Society), ii. pp. xcv-xcvi (1349), which is discussed by E. G. M. Fletcher, History of Carrier’s Liability, 58-59.

[5]Fitz., Corone, 334 (1329); contrast Y.B. 12 Richard II (Ames Foundation), 4 (1388).

[6]Ibid., 317, 318, 319 (1329); the writ of restitution was created by statute 21 Henry VIII, c. 11 (1529).

[7]Haverfordwest, c. 1200 (Bateson, Borough Customs, i. 221-222); Cork, 1242 (Ballard and Tait, Borough Charters, ii. 192).

[8]The queerest example is surely 5 Edward III, c. 10 (1331), which provides imprisonment for jurors who take bribes from both parties.

[9]Borough Customs (Selden Society), i. 71-72. For the forfeiture of the stolen goods, see above, p. 452.

[1]For another view, see Wigmore in Select Essays in Anglo-American Legal History, iii. 522.

[2]Westminster II, cc. 2, 11, 43 (1285), and other statutes collected in Pollock and Maitland, ii. 533 n. 1. The superior is sometimes referred to by the ecclesiastical term “sovereign”: Y.BB. Edward II (Selden Society), xxii. 266 (1318).

[3]There is one case where it is applied to the bailiff of a lord: Westminster I c. 17 (1275). Cf. Constitutions of Clarendon, c. 13 (above, p. 17).

[4]Kingston v. Booth, Skinner, 228; for the whole of this paragraph, see Holdsworth, viii. 472 ff.

[1]Boson v. Sandford, 2 Salk. 440 (1691).

[2]Bl. Comm., i. 430 ff.; Holt’s view has been accepted as the real basis of the liability since the last hundred years.

[3]Pollock and Maitland, ii. 170; Holdsworth, iii. 340 ff.; Holdsworth, vii. 450 ff.; Holmes, Common Law, 164 ff.; E. G. M. Fletcher, Carrier’s Liability, 1-35.

[4]See, however, Alfred, 20, Alfred, Einleitung 28 (in Liebermann, i. 36) and Stenton, English Feudalism, App. 46, for a deed limiting a bailee’s liability, c. 1150.

[5]Holdsworth, vii. 450.

[6]Select Pleas of the Crown (Selden Society), no. 126; Eyre Rolls (Selden Society, vol. lix), no. 977 (1221).

[1]Holdsworth, vii. 450; the doubt we have raised only applies to the earliest period of the common law. See in general, Bordwell, Property in Chattels, Harvard Law Review, xxix. 374. The bailor’s action against strangers dates from the later fourteenth century.

[2]Curia Regis Rolls, ii. 181-182 (1203).

[3]Glanvill, x. 13, is uncorroborated.

[4]Bracton, f. 62 b, 99.

[5]Select Civil Pleas (Selden Society), no. 8 (1200).

[6]Britton (ed. Nichols), i. 157; adding that if he borrows money, and foolishly shows it among thieves, and they rob him, he is still liable to the creditor, for he ought to have been more careful. The line between debt and detinue was still rather thin. For an indenture of 1309 relieving an apprentice of liability for loss of his master’s goods by fire, water, or robbers, see Y.BB. Edward II (Selden Society), xxii. 127 (1317).

[7]Brinkburn Cartulary (Surtees Society), 105.

[8]Fitz., Detinue, 59; Y.BB. Edward II (Selden Society), xvii. 136; Beale, in Harvard Law Review, xi. 158.

[1]Y.B. 12 & 13 Edward III (Rolls Series), 246.

[2]29 Ass. 28 (a pledge stolen).

[3]Y.B. 10 Henry VI, 21 no. 69.

[4]Holdsworth, iii. 342.

[5]Brevia Placitata (Selden Society), 207.

[6]As early as 1317 there is a suggestion that a bailee, who is answerable to another, can replevy the cattle if they are distrained: Y.BB. Edward II (Selden Society), xxii. 49.

[7]33 Henry VI, 1 no. 3; for an abstract of the record, see Fletcher, Carrier’s Liability, 253.

[8]As this was in 1450, the allusion must be to Cade’s rebellion.

[1]Fletcher, op. cit., 26; confirming Beale, Carrier’s Liability, Select Essays in Anglo-American Legal History, iii. 152. The cases are collected and discussed, Fletcher, 24 ff.

[2]Cro. Eliz. 815; 4 Rep. 83 b; a MS. report at Harvard is printed in Harvard Law Review, xiii. 46.

[3]Above, p. 468.

[4]Fletcher, Carrier’s Liability, 19.

[5]Extracts in Holdsworth, vii. 453 n. 3.

[6]2 Ld. Raym. 909 (1703); for strictures upon Holt’s handling of Roman Law, see Holmes, Misunderstandings of the Civil Law, Harvard Law Review, xlvii. 759 at 767.

[1]Claridge v. South Staffs. Tramway Co., [1892] 1 Q.B. 422; The Winkfield, [1902] P. 42; Holdsworth, vii. 454, 461-462.

[2]Holmes, The Common Law, 188 ff.

[3]History of Carrier’s Liability, Harvard Law Review, xi. 198, reprinted in Select Essays in Anglo-American Legal History, iii. 148. The latest and fullest discussion is that by Dr E. G. M. Fletcher, Carrier’s Liability (London, 1932).

[4]Above, pp. 477-478.

[5]Above, pp. 469-470.

[1]Y.B. 42 Edward III, 11 no. 13 (1368); 42 Ass. 17. Cf. Y.B. 46 Edward III, 19 (1372); above, p. 471.

[2]For elegit, see above, p. 390.

[1]The earliest example I have found is a family called “Carryer” in 1563: G. J. Turner, Hunts Feet of Fines (Cambridge Antiquarian Society, vol. xxxvii), 153 no. 29. For “common carrier” as an occupation, see Fifoot, Sources: Tort and Contract, 158 n. 25 (a deed of 1459), and Bayne, Council of Henry VII (Selden Society), 151 (a case of 1505). The only earlier mention of a carrier I have found is in 1392: Putnam, Justices of the Peace, 440.

[2]The examples given are driving at night, or by dangerous ways, or overloading a boat, Doctor and Student,ii. c. 38. Cf. Fifoot, Sources: Tort and Contract, 157.

[3]Fletcher, Carrier’s Liability, 117.

[4]Ibid., 119.

[5]Morse v. Slue, 3 Keb. 135 (1671), discussed at length by Fletcher, 134 ff.

[6]1 Term Rep. 27 (1785).

[1]III Edgar, 4 (c. 946-c. 961); II Canute, 16 (c. 1027-c. 1034).

[2]Borough Customs (Selden Society), i. 78; Pollock and Maitland, ii. 537.

[1]Indeed, mere ill-repute was enough to put him on trial not only in church courts, but also before royal justices: Eyre Rolls (Selden Society, vol. lix), no. 1239 (1221).

[2]The Church also punished insults (not within this class) as contumelia.

[3]Lyndwood, Provinciale (ed. 1679), 117 diffamati, distinguishes “fame” from “rumour”.

[4]Gibson, Codex Juris Ecclesiastici (ed. 1761), ii. 1252; Lyndwood, Provinciale (ed. 1679), 346. For a case of 1306 in a hundred court clearly illustrating the point of Stephen Langton’s constitution, see Pollock and Maitland, ii. 538 n. 5.

[5]Above, p. 127 n. 1. So, too, one who brought an appeal of felony which ended in acquittal was liable to imprisonment and to pay damages for the defamation of the appellee: stat. Westminster II, c. 12 (1285).

[6]For what may be a mingling of the two (c. 1340) see Page, Estates of Crowland Abbey, 141.

[7]Select Pleas in Manorial Courts (Selden Society), 116 (1294). Slander of goods appears in 1320; Alice Batte “defamed the lord’s corn, whereby other purchasers forebore to buy it”; Court Baron (Selden Society), 130.

[1]Text and translation in Plucknett, The County Court, Harvard Law Review, xlii. 639 at 668; the whole roll is now edited by Dr. G. H. Fowler, in Quarto Memoirs of the Bedfordshire Historical Record Society, iii. 66 no. 270, 74 no. 270.

[2]But, of course, not the only one. In 1273 a Christian sought remedy against a Jew for defamation: Jewish Exchequer (Selden Society), 70-71; in 1279 there was a plea of defamation in the King’s Bench: Sayles, King’s Bench (Selden Society), ii. p. cxxii; cf. Exchequer of Pleas (Selden Society), 103 (1280); a man falsely denounced as a “wild Irishman” released in 1401: Cases before the King’s Council (Selden Society), 85-86; Select Cases in Chancery (Selden Society), no. 113 (1413-1417).

[3]Graves, Circumspecte Agatis, English Historical Review, xliii. 1.

[4]Rotuli Parliamentorum, i. 132-134.

[5]E.g. above, p. 98.

[6]Ibid.

[7]Case for slander is a later development; below, p. 491.

[1]Westminster I (1275), c. 34.

[2]2 Richard II, stat. 1, c. 5. For a case on this statute, see Rot. Parl. iii. 169 no. 15 (1382).

[3]For the connection of John of Gaunt with this statute, see Barrington, Observations on the Statutes (1775), 314.

[4]12 Richard II, c. 11.

[5]1 & 2 Philip and Mary, c. 3. The same Parliament (c. 9) declared it treason to have prayed, or to pray in the future, that God would shorten the queen’s life, but with a curious clause modifying this retrospective operation.

[6]1 Elizabeth, c. 6.

[1]Lord Cromwell’s Case (1578-1581), 4 Rep. 12 b.

[2]The criminal cases were apt to be either seditious, or in the nature of contempt of court. The common law courts, like the Star Chamber, were at pains to avoid using the statutes, and so created the impression that seditious words were a common-law misdemeanour; cf. Holdsworth, viii. 340.

[3]Bate’s Case (1606), 2 St. Tr. 371. See extracts in Prothero, Constitutional Documents, 340; Tanner, Constitutional Documents of James I, 337-345; Holdsworth, vi. 43 ff.; G. D. G. Hall, Bate’s Case and “Lane’s” Reports: the Authenticity of a Seventeenth-Century Legal Text, Bulletin of the John Rylands Library, xxxv. 405, and Impositions and the Courts, 1554-1606, Law Quarterly Review, lxix. 200.

[4]De Libellis Famosis (1605), 5 Rep. 125.

[1]Hudson, “Star Chamber” in Collectanea Juridica, ii. 100.

[2]See the cases collected in 4 Rep. 12-20.

[3]Rot. Parl., i. 132 a (mentioned above, p. 485 n. 4).

[1]Select Civil Pleas (Selden Society), no. 183 (post 1205).

[2]Select Pleas in Manorial Courts (Selden Society), passim. Even in debt the plaintiff might recover for “shame” as well as damages: Court Baron (Selden Society), 47. In Select Cases without Writ (Selden Society), cviii ff., the editors would regard the notion as a Romanism. There is no ground for this.

[3]Select Cases in Star Chamber (Selden Society), i. 38 ff.

[4]Select Cases in Star Chamber, 20, 101, 109, 163, 166, 182 et passim.

[1]Hudson, “Star Chamber” in Hargrave’s Collectanea Juridica, ii. 104. He even applies this rule to scandalum magnatum, which Coke said could not be justified.

[2]Hudson, “Star Chamber” in Hargrave’s Collectanea Juridica, ii. 104, and cases cited in Holdsworth, v. 211, n. 2.

[3]See the cases cited in Holdsworth, v. 207, n. 4.

[1]30 Ass. 19 (1356). For the record, see Sayles, King’s Bench, iii, p. cxxxvi. The incident took place on 15 November, 1357, and so the report in 30 Ass. is misplaced. The case seems clearly an action for damages brought by bill by the injured party, rather than proceedings for contempt of court. Lucy aggravated matters by producing a papal bull excommunicating the justice; bulls were not evidence in English courts, and she was reminded that she had risked her neck in using it. Dr Kiralfy, Action on the Case, 115, has found other proceedings from which it would appear that Lucy had been Seton’s wife whom he married for her property; she later got a divorce from Rome.

[2]Y.B. 2 Edward IV, 5 (10).

[3]Y.B. 15 Edward IV, 32 (15).

[4]There was great danger that the defendant might plead to the action, with the result that the plaintiff, although a villein, would then be enfranchised since the defendant had treated him as a free man.

[1]Y.B. 17 Edward IV, 3 (2).

[2]For this point, see Y.B. 9 Henry VII (1493), 7 (4).

[3]Y.B. 22 Edward IV (1482), 20 (47), continued ibid., 29 (9). It seems that the court took advantage of a very curious state of facts in reaching this notion. An abbot of St. Albans is alleged to have enticed a married woman to his room and endeavoured to seduce her, whereupon her husband brought an action of false imprisonment. To this the abbot countered with a citation for defamation, and it was this suit that the Common Pleas prohibited. The further proceedings are equally curious; the abbot excommunicated the woman for getting the prohibition, the Court of Common Pleas ordered him to absolve her, and as he did not do so, he was attached for contempt. The truth of the allegations was apparently never tried.

[4]As in the Abbot of St. Alban’s Case in the preceding footnote.

[5]Thus, in 1486, a constable would have justified imprisoning a man by a London custom which allowed him to enter houses and arrest adulterers, though adultery was not a crime at common law and the fact was therefore not triable; Y.B. 1 Henry VII, 6 (3). That case was undecided, but a later case escaped the difficulty of adultery, for the custom pleaded in justification was merely to arrest suspicious persons found in disorderly houses; Y.B. 13 Henry VII (1497), 10 (10).

[1]Y.B. 12 Henry VII, 24.

[2]Y.B. 27 Henry VIII, 14 (4).

[3]John March, Actions for Slander: or, Collection of what Words are actionable in the Law, and what not? 1647.

[1]Davis v. Gardiner (1593), 4 Rep. 16 b.

[2]The words (that a woman had a bastard child) could also have come under the older rule, for this was an offence punishable under the poor law of 18 Eliz., c. 3.

[3]Leprosy, syphilis and perhaps plague; no satisfactory explanation for this curious list seems available. See Holdsworth, viii. 349.

[1]Davis v. Gardiner, above, p. 494 n. 1.

[2]The legislature also took steps to discourage frivolous actions of slander by enacting that if the jury in actions on slander find the damages less than forty shillings, then the plaintiff shall not be awarded more than forty shillings costs: 21 James I, c. 16 (1624); cf. p. 174, above.

[3]Holt v. Astrigg (1607), Cro. Jac. 184.

[4]Anon. (1613), 1 Roll. Abr. 74 b, pl. 1.

[5]Charnel’s Case (1592), Cro. Eliz. 279.

[1](1612) 12 Rep. 132. This rule was finally abandoned two hundred years later.

[2]Gerrard v. Dickenson (1590) 4 Rep. 18; see the references in Holdsworth, viii. 351.

[3]Holdsworth, v. 358-359.

[1]Somers v. House (1693), Holt, K.B. 39; Baker v. Pierce (1703), 6 Mod. 24; Harrison v. Thornborough (1714), 10 Mod. 198.

[2]King v. Lake (1670), Hardres, 470; Skinner, 124.

[3]Lord Beauchamp v. Croft (1569), Dyer, 285 a.

[4]Brook v. Montague (1606), Cro. Jac. 90.

[1]Treyer v. Eastwick (1767), 4 Burr. 2032.

[2]54 & 55 Vict., c. 51.

[3]25 Hen. VIII, c. 22, s. 5 (1534); Tanner, Tudor Constitutional Documents, 386.

[4]1 Edw. VI, c. 12, s. 6 (1547); Tanner, op. cit., 403. Compare 13 Eliz., c. 1 (1571); Tanner, op. cit., 414.

[5]Steele, Tudor and Stuart Proclamations, i. no. 176.

[6]Ibid., no. 3316.

[7]34 & 35 Hen. VIII, c. 1 (1543).

[8]Steele, op. cit., no. 3516.

[9]Ibid., no. 3859.

[1]Steele, Tudor and Stuart Proclamations, no. 3832.

[2]Holdsworth, vi. 362 ff., sketches their history, and the origin of copyright.

[3]See the Order in Council of 1566 in Tanner, Tudor Constitutional Documents, 245 (and in Prothero, Select Statutes and Constitutional Documents, 168), and the Star Chamber ordinance of 1586 in Tanner, op. cit., 279 (and in Prothero, op. cit., 169).

[4]From the earliest days of English printing, the Crown had issued its “privilege”: A. W. Reed, Early Tudor Drama, 176-186, 205.

[5]8 Anne, c. 19; for the great question whether copyright exists at common law or is merely statutory, see Holdsworth, vi. 377-379.

[1]R. v. Tutchin (1704), 14 S.T. 1095, at 1128.

[2]12 S.T. 183 (1688); Stephen, ii. 315; Holdsworth, vi. 344. Similar causes produced a like result in the case of Peter Zenger in New York (1734).

[3]R. v. Shipley (1783), 21 S.T. 847, at 971, discussed at length in Stephen, ii. 330-343.

[4]32 Geo. III, c. 60.

[5]22 S.T. 296.

[6]Stephen, ii. 350.

[1]As to this curious point, see Stephen, ii. 246.

[2]Stephen, ii. 353 n.

[3]The authorities (which are very obscure and conflicting) are collected in 5 Bac. Abr. 203-205.

[4]6 & 7 Vict. (1843), c. 96.

[1]44 & 45 Vict. (1881), c. 60.

[2]51 & 52 Vict. (1888), c. 64. The great constitutional case of Stockdale v. Hansard (1839), 9 Ad. & E. 1, raised the question whether privilege attached to publications authorised by the House of Commons. The Parliamentary Papers Act, 1840 (3 & 4 Vict. c. 9), conferred absolute privilege on such publications. The courts by decision accorded qualified privilege on reports of parliamentary debates in Wason v. Walter (1868), L.R., 4 Q.B. 73, which thus established the principle which was extended to public meetings by the act of 1888; documents strictly connected with legal or parliamentary proceedings, and not otherwise published, were privileged since the sixteenth and seventeenth centuries.