courts ecclesiastical, and which continued certainly until after the reign of the first James of England.

$56. Since, then, we can obtain no positive information on the subject of our inquiry, we are driven to hypothesis. Our unwritten law is based on the so-called common law of England, and whatever the number of sources which contributed to make up that complex, vaguely understood and imperfectly ascertained set of legal ideas denominated the common law of England, it is certain that so much of it as pertains to the rights of persons is mainly derived from the Anglo-Saxon and Roman civil laws. Of both of those systems of laws history furnishes us ample details. We know that Rome held possession of Britain from about the end of the first half century of the Christian era to about the middle of the fifth century (say from A. D. 45 to A. D. 448), and during this period Roman civil law was administered in England. When the Romans abandoned Britain, the Saxons became its masters, and, alternately with the Danes, so continued until the Norman conquest (A. D. 1066). The Saxons introduced their own system of laws. The controlling idea of those laws was the maintenance of the peace and protecting the person and property. They did not, nor does the law at this day, give directly any remedy for outraged feelings or sentiments.' With few exceptions, these

1 See Tilley v. Hudson R. R. Co. 23 How. Pr. R. 370; Green v. Hudson R. R. Co. 32 Barb. 25; Lehman v. City of Brooklyn, 29 Barb. 234; Flemington v. Smithers, 2 C. & P. (N. P.) 292; Terwilliger v. Wands, 17 N. Y. 54; Wilson v. Goit, 17 N. Y. 442; Bedell v. Powell, 13 Barb. 183; Samuels v. Evening Mail Asso. 13 Sup. Ct. Rep. (6 Hun), 5; the cases to the contrary were overruled. Mence, commenting on the statement of Holt, that the few actions for slander to be found in the earlier law reports was creditable to the people of those times, remarks that the credit was not due to the good manners but to the fact that "the common law took cognizance only of injuries to the person and property." (1 Mence on Libel, 333.) Perhaps among the reasons why there were so few actions for slander, one may be that the parties themselves undertook to redress the injury without resorting to the law. When King Harold required of Reidar, the Icelander, a blood fine for killing one of his (Harold's) followers, Reidar refused to pay it, because the man brought his

laws designed to remedy every wrong by a pecuniary mulct or fine (were) proportioned and adjusted to the kind and degree of the wrong committed. In that form of trial which corresponded to our present jury trial, the question in Saxon times was only the guilt or innocence of the accused. The penalty (the damages) was fixed by the codes. At a later period, after the Norman invasion, and when the Anglo-Saxon codes had been lost by desuetude, the courts fixed the amount of damages; this power, when jury trials assumed their present phase, appears to have been transferred by the court to the jury— the court, however, retaining its power to regulate the damages. For ages the courts always revised the allow

3

death upon himself, by behaving rudely to him. See Den Danske Erobring of England og Normandict; Copenhagen, 1863. In Baker v. Pierce (2 Ld. Raym. 960), Holt, Ch. J,, said he remembered a story told by Mr. Justice Twisden, of a man who had brought an action for slander, who, on judgment being given against him, said if he had thought he should not have recovered he would have cut the defendant's throat. The Jesuits sanctioned killing for slander, particularly for slander of one in religious orders, but they held that the killing should be secret, and not open, to create scandal. (Pascal Letters, xiii.) In the "Ethica Christiana," by Father Benedict Stattler, published in 1789, it is stated, paragraphs 1889, 1891 and 1892, that a Christian may, to prevent a contumelia gravis certo provisa * * * * murder the "injusti aggresoris aut calumniatoris." Father Stattler's book was published cum permissu superiorum," and is said to be still in

aut calumnia

use as a manual for ecclesiastics.

* * *

The necessity of protecting character by law could not obtrude itself till society had begun to assume a complicated form. (Borthwick on Libel, 1.) The coarseness of language indulged in formerly must strike every student of history. Henry III (A. D. 1248) spoke of the Aldermen of London as "London boors," applied a like epithet to the Bishop of Ely, and dismissed Bishop Aymer by telling him to go to the devil. See Miracles of Simon de Montfort and works of Roger Bacon.

1

Damages correspond to the Anglo-Saxon were: 1 Palgrave's Rise, &c., Eng. Commonwealth, 205; Bosworth's Anglo-Saxon Dict. tit. Were and Wite; 2 Lappenburg's History of England (Thorp's Translation), 336.

* As to the origin of trial by jury, &c., see Forsyth's Hist. of Trial by Jury, and Stephen's Pl. Appendix, note 40; 2 Reeves' Hist. 270; Fortescue de Laudibus Legum Angliæ, ch. xxv, xxvi, xxvii, and notes to the edition by Amos; 2 Hallam's Middle Ages, 388-406, note, 11th edit.; Palgrave's English Commonwealth, 272.

* See Viner's Abr. tit. Damages, J, K, L, M, as to powers of courts to increase or mitigate damages. The right was denied in an action for slander, because there is in such an action nothing apparent for the judgment of the court to act upon. (Id. K.) See Cassin v. Delaney, 38 N. Y. 178; but in Gostling v. Brooks, 2 F. & F.

ance by the jury of damages, and the power is still held and exercised by the courts, although at the present time it is customary to make the revision by granting a new trial. Even now the courts not unfrequently order a reduction of damages, or a new trial, at the election of the party to whom damages have been awarded. The Anglo-Saxon codes provide for offenses occasioned by language, but they are all offenses which amount to public wrongs or crimes, sedition, or treason, rather than private wrongs or torts. These codes are in fact barren of any provision of a pecuniary fine or penalty for a private injury by language. While the Saxons were yet dominant in Britain, Christianity, which had been early introduced into England and become extinct, was reintroduced through the Church of Rome-say A. D. 596. The introduction of Christianity did not abrogate the Saxon laws, but it at least supplemented upon them many precepts of Christianity, and, beyond a doubt, laid the foundation for the dictum that Christianity is part of the common law of England.

The clergy rose to great power

76, the court in bank upheld the verdict for the plaintiff, but reduced the amount of damages. The damages increased for giving plaintiff bad food to eat. (1 Rolle, 89.) And in cases of mayhem. (See Jacobs' Law Dict. tit. Mayhem; Rolle Abr. tit. Damages; 2 Sharswood's Blackstone's Com. 121, note.)

1 Sir Francis Palgrave, in his "History of Normandy and of England," which unhappily he was not spared to complete, objects to the term Anglo-Saxon as a designation of the English of the ante-Norman period. He denies there was any AngloSaxon people or language, properly so called, and says: If you had asked Alfred what he had in his hand, he would have answered it was an Englisc-boc. * *. * The name of our nation then, as now, was English." (Vol. III, p. 631, edit. 1864.) Mr. Palgrave himself employs the term Anglo-Saxon in his earlier works.

We do not intend to assert that Christianity is parcel of the English common law. Sir Matthew Hale, in Rex v. Taylor (Ventris, 293; 3 Keble, 621; Tremayne's Pleas of the Crown, 226), following Lord Coke, uttered a dictum that "Christianity is part of the laws of England." That dictum has been repeated in subsequent cases. See, among others, Rex v. Webster, Fitzg. 64; 2 Str. 834; Reg. v. Gathercole, 2 Lewin C. C. 237; Reg. v. Hetherington, 5 Jur. 529, Q. B.; Rex v. Paine, 1 East P. C. 5; Lindenmuller v. The People, 33 Barb. 548; Bedford Charity, 2 Swans. 527; Da Costa v. Paz, 2 Swans. 420, note; Atty. Gen. v. Pearson, 3 Mer. 399; Andrew v. N. Y. Bible & Prayer Book Soc. 4 Sandf. 157; 1 Bish. Cr. Law, $$ 945, 947;

in the State, they sat in the courts of justice, and took part in the decision of all judicial controversies, and they claimed and exercised a sole jurisdiction over all questions involving considerations of moral right and wrong (sins), rather than considerations of legal rights or rights of property; those rights in fact which were provided for by the letter of the laws. The jurisdiction thus claimed and exercised included heresy, adultery, perjury, and defamation. This jurisdiction was assumed and exercised with the avowed design not of compensating the injured party, but for the reformation of the offender. Reparation in damages was made only in the cases and for the offenses provided for in the codes. In the exercise of their powers the clergy adopted at least to some extent the forms of procedure in use in the Roman law.

On the Norman accession, William introduced the feudal system, but professed to respect and continue in force the Saxon laws. He separated the courts into courts of different jurisdictions, the clergy no longer sat in the temporal courts, but apart in courts Christian or 2 Id. § 87. Jefferson, in a letter to Major Cartwright, controverts the dictum that Christianity is a part of the common law. This letter is commented upon in the Inaugural Discourse delivered by Joseph Story on taking the chair of Dane Professor at Harvard University, and in an article in 9 American Jurist; and see Life and Letters of Joseph Story, vol. I, pp. 430-434; vol. II, pp. 8, 462, 463; and on this subject see the arguments of Webster and Sergeant in the Girard will case; and Lewis on Authority in Matters of Opinion. Holt says Alfred made Christianity part and parcel of the common law. (Holt on Libel, 32.) See strictures on this dictum, I Mence on Libel, 303; 13 Albany Law Journal, 366; 2 How. U. S. 127; 8 Johns. 290; 1 Bancroft's Hist. of U. S. 243.

The Dome-Book of Alfred, said by Blackstone to have been extant so late as the reign of King Edward the Fourth, and to have been lost, was supposed by both Hallam and Turner never to have existed. It has since been published by the Record Commissioners, vol. I, pp. 55–101. It commences with the ten commandments, followed by many Mosaic precepts. After quoting the canons of the Apostolical council at Jerusalem, Alfred refers to the command, "As ye would that men should do unto you, do ye also to them;" adding, “from this one doom, a man may remember that he judge every one righteously, he need heed no other doom book."

The Puritan Colony of New England resolved at a "General Court, October 25th, 1639, * * * The worde of God shall be the onely rule to be attended vnto in ordering the affayres of government in this plantatio."

ecclesiastical. It would seem they were debarred the exercise of any jurisdiction in controversies in which money damages were claimed. The line of demarcation between the jurisdiction of the temporal and ecclesiastical courts appears to have been that, where compensation was sought, resort was to be had to the temporal courts; and where the reformation of the offender only was desired, then resort was to be had to the ecclesiastical courts. And where the ecclesiastical courts entertained jurisdiction of suits in which money might be demanded, the temporal courts restrained them from proceeding therein by the writ of prohibition. As there is now, so there must ever have been, a distinction between language occasioning pecuniary or temporal injury, and language insulting and provoking and harrowing to the feelings, without occasioning pecuniary or temporal injury. This distinction seems to have been clearly recognized by the statute circumspecte agatis,' and leads almost irresistibly to the conclusion that the gist of the action of trespass on the case for words, was the pecuniary loss, and not for the in

1 The statute thus styled was passed 13 Edward I, stat. 4, ch. i, A. D. 1285. The King to his justices sendeth greeting: "Use yourselves circumspectly (circumspecte agatis) in all matters concerning the Bishop of Norwich and his clergy, not punishing them if they hold pleas in courts Christian of such things as be meer spiritual * * * and for laying violent hands on a clerk, and in canons of defamation it hath been granted already that it shall be tried in a spiritual court when money is not demanded but a thing done for punishment of sin." By this it appears, said Lord Coke, that the cognizance of defamation was granted by act of Parliament. (2 Inst. 492.) See Appendix D, No. 11, to Ecclesiastical Com'rs Report, Feb. 27, 1832; and Stephens' Ecclesiastical Statutes, pp. 26-34. The statute 9 Edward II, stat. I, ch. iv, A. D. 1315, enacted: "In defamation, prelates shall correct also in manner above said, the King's prohibition notwithstanding."

It seems of those defamations by which the party is damnified the spiritual court cannot hold plea. (Vin. Abr. tit. Prohibition, D, 5.) In Bacon's Abr. tit. Courts Ecclesiastical, D, it is said: "No suit can be instituted in an ecclesiastical court for defamatory words in writing, because they may be the subject of an action at law." (Comb. 71.) This, however, appears not to be correct. In Ware v. Johnson, 2 Sir Geo. Lee's Cas. in Eccl. Cts. 103 (A. D. 1755), the words, "He keeps a whore in his house," were held to be defamation, and that whether the language was in writing or by parol. And see 2 Phil. Eccl. Cas, 106.