Actions on the case for defamation

Abstract

The orthodoxy before 1500 was that the only remedy for defamatory words was a prosecution in the ecclesiastical courts. But it was a hard to deny a remedy if untrue words caused temporal damage, since damages could not be recovered in those courts. This chapter shows how actions on the case came to be available for causing temporal loss by words, and how indeed they became so common in the sixteenth century that the judges tried to discourage them by construing apparently defamatory words in a milder sense (‘in mitiori sensu’). Objections that such actions should not lie in respect of spiritual subject-matter, such as heresy or fornication, were overruled where temporal damage resulted. The final cases in the chapter show that the distinction between libel and slander was not the same, in its consequences, as that which became settled in later times.