Slander and Defamation Case Studies
Total Page：16
File Type：pdf, Size：1020Kb
142. Chapter V Witchcraft as Words : Slander and Defamation Case Studies. For Richard F. Suggett.1 The majority of witchcraft cases which came before the courts in early modern Wales were witchcraft as words cases: cases in which a woman took another person to court for having said, before witnesses, that the woman was a witch. In the Courts of Great Sessions such cases were termed "slander". Some witchcraft as words cases were located in quarter sessions files but it was the Courts of Great Sessions which heard most of these cases. In the ecclesiastical courts in early modern Wales, witchcraft as words was termed "defamation", although the two should not be confused or approached, from an analytical persepctive, in the same way. Whilst the subject matter of the cases appears to be similar, the two types of court treated the case lodged before them in a very different manner as the motives of the participants presenting the case in the court of their choice were not similar. Before 1500, the secular courts did not use the term "defamation" and the temporal courts did not use the term "slander". Cases lodged in the secular courts were for a specific sum of money, the financial compensation which the slandered person was seeking from the slanderer. In the ecclesiastical courts, the defamed was seeking an acknowledgement of the defamation from the defamer and was lodging the case to seek punishment of whatever spiritual nature the court deemed sufficient punishment for the defamer. Ecclesiastical courts could not punish the defamer by setting an amount of financial compensation.2 The procedure in a slander case began with a declaration which opened the pleading in a 1 This chapter acknowledges the unpublished work of Richard F. Suggett. I would like to thank Richard for his permission to access this work in 1994, for his encouragement and comments concerning slander and defamation in early modern Wales and for his profound generosity in sharing his intellectual property. His work entitled "An Analysis and Calendar of Early Modern Welsh Defamation Suits." in two volumes was the result of a Social SCience Research Council (E.S.R.C.) project (HR 1679) and copies of the Final Reports were lodged with The Department of Manuscripts, National Library of Wales at Aberystwyth and The Department of Dialects, Museum of Welsh Life, st. Fagans, Cardiff. The NLW catalogue details are: NLW FACS 721. This work was available from the Department of Manuscripts with written permission from the author in 1994 but had been withdrawn from access by Richard Suggett in 199B. 2 Witchcraft as words cases for early modern Wales are located in NLW, Great Sessions 13; NLW, Great Sessions P ; and NLW, Great Sessions 28, all of which are the extant records of the prothonotary papers. Prothonotary papers relate to civil cases and all pre-1660 witchcraft as words cases are located in Great Sessions 13. Post-1660 cases were located in Great Sessions P although those cases relating to Carmarthen were dispersed into Great Sessions p until 1732, and thereafter were located in Great Sessions 28 . ( See Glyn Parry , A Guide to the Records of Great Sessions in Wales, The National Library of Wales, Aberystwyth, 1995, Preface, p. xcvi.) Richard Suggett's work is an Index of Welsh Defamation Suits and is one of the few indexing works for the Courts of Great Sessions. Glyn Parry has stated that the records are underutilised by historians and one of the reasons, I would suggest, is because little indexing work has been done. This means that the researcher must wade through every Courts of Great Sessions record in order to find cases related to hisiher research area. See Glyn Parry ,op. cit., p. i. 143. civil action and the plaintiff's attorney handed the complaint over at the prothonotary's office where it was filed.This was important because the declaration is the only record of the substance of those actions which were not enrolled in the plea rolls and "declarations and original writs are the only record of initial pleadings, irrespective of whether issue had been reached or not, in those instances where the plea rolls are missing." 3 Defamation cases could be heard in the secular court as well as the ecclesiastical court from 1500 onwards and the jurisdiction of the court was determined by the nature of the words used, for example, thief was a secular matter, whore was a spiritual matter but combinations of the two, according to the law, had to be heard in the temporal COUrts.4 The term ''witch'' must have been regarded as a secular matter as it appears frequently on its own in the slander cases located in the prothonotary files. Cases which cited the term ''witch'' in combination with ''whore,'' or words with similar implications, were equally common. However, if the defamation was considered to be of such a nature as to cause a breach of the peace, the case had to go to the temporal courts. Most importantly, "Aggrieved parties sued for damages in the temporal courts after being slandered; spiritual courts were forbidden to award cash damages."5 A writ of prohibition could remove the cases of defamation initiated in the diocesan court to the secular courts as the court was presented with a document called a suggestion in which information, not on oath, was provided which gave the grounds on which a writ of prohibition should be issued. Judges, after reading the suggestion as well as the occasional affidavit, could order that a prohibition to stay proceedings should be issued against the chancellor of the diocesan or chancery court or against the proctor who was prosecuting the case. 6 Documents relating to the defamation cases which were removed by writs of prohibition become very important in cases where the ecclesiastical court records no longer survive. Such ecclesiastical court records are no longer extant for Bangor until after 1734 and those for St. Asaph are not extant prior to 1826.7 Prothonotary papers for the Brecon circuit "also include papers relating to criminal actions until 1700. These comprise, in the main, calendars of prisoners noting the charge, plea and verdict, but not the sentence." Calendars for a third of the Brecon pre-1660 files are extant, two-thirds for pre-1660 Radnor but only six pre-1660 prothonotary files are 3 ibid., p. xcvii. 4 ibid., p. c. 5 ibid., p. c. 6 See Brian P. Levack The Civil Lawyers of England 1603·1641A Political Study, Clarendon Press, Oxford, 1973, p. 73-81. for the use of prohibitions in the Westminster courts, in particular, the full scale attack initiated by the judges of common law against the jurisdictions of the inferior courts in the 1590s. Levack goes on the examine the effects this process had on the archiepiscopal and diocesan ecclesiastical courts as well as the Admiralty Court, the Courts of Chancery, Requests, and Delegates, the High Commission and the Council of the North. 7 Glyn Parry, op. cit., p. c- ci. 144. extant for Glamorgan.8 Ascertaining the witchcraft situation for this circuit is, therefore, fraught with difficulty. English replaced Latin as the language of the court in 1732 although Parry9 mentions only the Carmarthen circuit in this statement. NLW, Great Sessions 28 contain what is known as the Black Books or ''The Docket of the Gaol" but this is only for the Brecon circuit. However, the 1726-1830 extant records are outside the timeframe of the early modern period 10 and do not contain any cases of witchcraft as words. The judicial system implemented with the Acts of Union incorporated methods of dealing with cases of slander and defamation, but such methods were also relatively new in this period of English legal history. Prior to the early modern period, two types of courts had had the responsibility for slander cases in the English system: the feudal courts had awarded compensation and apologies for defamation of character whilst the ecclesiastical courts had ordered public apologies and the payment of costs. The system had become increasingly unworkable as the feudal courts had decayed by 1500 and the Church courts were no longer able to award damages, a circumstance which necessitated a solution. 11 Action was necessary because, even though slander was in oral rather than in written form, the plaintiff both needed and deserved a remedy because of the material damage accrued. A solution was provided through the mechanism which became known as the Action on the Case: "Slander of a man's professional reputation was soon recognised as actionable without proof of damage" but, "Slander actionable on proof of special damage originated in imputations of immoral, as opposed to criminal conduct."12 The divergence arose because, if an individual suffered material loss caused by a slander, the Action on the Case was the only way to recover damages and the ecclesiastical courts were unable to use Action on the Case. 13 Throughout the processes of law, the nature of slander as an offence remained constant, "A defamation had to be a public u.tterance, and so plaintiffs now could call witnesses who had heard the words spoken publicly ... Plaintiffs who chose to prosecute with witnesses were now subject to pay court expenses if their suits failed ... " 14 The early modern Welsh witchcraft as words cases fall into this category: slander before witnesses led to a court case which sought financial recompense for the damage to individual reputation. Judicial commonality in slander and defamation cases between England and Wales did 8 ibid., p. cii. 9 ibid., p. ciii. 10 ibid., p.