Defamation in the English Ecclesiastical Courts

Back in the day (from earlier than the 1200s  until the 1800s), a number of English cases were heard by ecclesiastical courts.  These courts would address questions of church discipline, probate, marriage licenses and divorces, and certain defamation suits.

I learned about these courts and their jurisdiction over defamation suits in one of my classes, and I decided I would try to learn more.  I found R.B. Outhwaite's book, The Rise and Fall of the English Ecclesiastical Courts, 1500-1860 (Cambridge University Press, 2006), to be particularly helpful.  Adding an interesting (and opinionated perspective) was Thomas Clark's Perpetuation or Extinction of the Ecclesiastical Jurisdiction in Temporal Concerns (J&W Robins, 1840).  The title I just gave does not seem to be the full title of the book, but due to readability concerns I have reserved a full listing of the title for an addendum at the end of this post.

Outhwaite notes that only certain types of defamation claims were heard in ecclesiastical courts.  While suits arising from statements that the plaintiff is a thief or liar were typically pursued in common law courts, claims arising from statements that the plaintiff is an adulterer or prostitute were typically pursued in the church courts.

Outhwaite also points out the differences in the gender makeup of plaintiffs in the ecclesiastical courts compared to the common law courts.  While common law plaintiffs were typically male, many more plaintiffs in the church courts were female.  Many more defendants in the church cases were female (compared to common law defendants), though this difference was not as pronounced as the difference in plaintiffs' genders.

Outhwaite describes the statements that would typically give rise to a defamation suit in the church courts:

Men complained of being labelled as sexually active deviants - seducers, adulterers, fornicators, bastard-begetters, whore-masters and carriers of venereal disease - or of being the victims of the sexual deviance of others - so becoming cuckolds.  Women were similarly, though obviously not identically, labelled, but their overwhelming complaint was that they had been called a whore.

Outhwaite points out several reasons why individuals may have wished to pursue these defamation claims.  One theory is that these suits were filed to foreclose prosecution for crimes of sexual deviancy, but Outhwaite notes that this theory has met some opposition -- as a defamation suit would guarantee that the accusing statements would come to light.  Ultimately, it looks like maintaining one's reputation in a religious community was an important factor:

Taking the abuser to court was not only a way of demonstrating respectability; it was also a way of exacting recantation and retribution.  The abuser, if found guilty, had to bear legal costs and undergo a humiliating penance.  Even though only a minority of cases got as far as this, there was satisfaction to be derived from citing an abuser to appear before a court, making him or her incur some costs as a consequence, before perhaps accepting arbitration and a peaceful settlement.

Clark, writing at a time when these courts were still around, takes issue with this function of the courts.  Alluding to a particularly lengthy and costly defamation case, he writes:

By the constitution of these courts, they can give no damages through pronouncing judgments!  But ever mindful of their own interests, they can imprison the parties for nonpayment of costs and this has not unfrequently been done.  If in the instance alluded to the defendant had been pronounced guilty of the offense with which he was charged, the lady whose reputation was assailed and also her husband and their relations and friends, after enduring seven years protracted litigation and expense, to decide upon a simple fact, and the surmises and scandal of the public on the charge affecting character, could only have witnessed (if not prevented by imprisonment for non-payment of the costs of her success) the disgusting spectacle of the defamer suffering penance in a white sheet, pro salute animae - "for the good of the soul" - whilst professional men who had pocketed £1400 in the suit and appeal, might enjoy the farce, and retire to a tavern to drink "prosperity to spiritual jurisdiction and emoluments in temporal concerns."

While many of my posts focus on defamation in the digital age, I think that some perspective on the history of this cause of action can be useful. 

ADDENDUM: The full title of Clark's book is: Perpetuation or Extinction of the Ecclesiastical Jurisdiction in Temporal Concerns; Being an Analysis and Review of the Special and General Reports of the Ecclesiastical Commission, and of the Provisions of the Bill Founded Thereon. With Remarks and Citations in Reference to The High Court of Chancery and the Judicial Committee of Privy Council, and to Trial by Jury