James Kent on "Statutes De Scandalis Magnatum"

 E Pluribus Unum

 
 

In his legal Commentaries published in 1826, James Kent offered the following explanation of the "statutes de scandalis magnatum." To read the whole of his commentary, follow the link at the bottom of this text.

The law of England, even under the Anglo-Saxon line of princes, took severe and exemplary notice of defamation, as an offence against the public peace, and in the time of Henry III., Bracton adopted the language of the Institutes of Justinian, and held slander and libellous writings to be actionable injuries. But the first private suit for slanderous words to be met with in the English law, was in the reign of Edward III., and for the high offence of charging another with a crime which endangered his life. The mischiefs of licensed abuse were felt to be so extensive, and so incompatible with the preservation of peace, that several acts of parliament, known as the statutes de scandalis magnatum, were passed to suppress and punish the propagation of false and malicious slander. They are said to have been declaratory of the common law, and actions of slander were slowly, but gradually multiplied, between the time of Edward III., and the reign of Elizabeth, when they had become frequent. The remedy was applied to a variety of cases; and in a private action of slander for damages, and even in the action of scandalum magnatum, the defendant was allowed to justify, by showing the truth of the fact charged, for if the words were true, it was then a case of damnum absque injuria, according to the just opinion of Paulus, in the civil law. But in the case of a public prosecution for a libel, it became the established principle of the English law, as declared in the Court of Star Chamber, about the beginning of the reign of James I. that the truth of the libel could not be shown by way of justification, because, whether true or false, it was equally dangerous to the public peace. The same doctrine remains in England to this day unshaken; and in the case of The King v. Burdett, it was held, that where a libel imputes to others the commission of a triable crime, the evidence of the truth of it was inadmissible, and that the intention was to be collected from the paper itself, unless explained by the mode of publication, or other circumstances, and that if the contents were likely to produce mischief, the defendant must be presumed to intend that which his act was likely to produce. "The liberty of the press," as one of the judges in that case observed, "cannot impute criminal conduct to others without violating the right of character, and that right can only be attacked in a court of justice, where the party attacked has a fair opportunity of defending himself. Where vituperation begins, the liberty of the press ends."

This passage is taken from Kent's Commentaries 2:12-22, 1826. The entire section of Kent's Commentaries from which this passage is taken is available online as Document 32 in the section of The Founders' Constitution devoted to Amendment I (Speech and Press). The Founders' Constitution site is a joint publication of the University of Chicago Press and The Liberty Fund.

 

 
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The E Pluribus Unum Project is funded by a grant from the National Endowment for the Humanities. It is co-directed by Dr. John McClymer, Professor of History, Assumption College; Dr Lucia Knoles, Professor of English, Assumption College; and Dr. Arnold Pulda, Director of Gifted and Talented student programs for the public schools in Worcester, MA. Visitors are encouraged to send inquiries or suggestions.