Category Archives: defamation

Defamation with a Welsh accent?

‘Oh my country, my country! Her Majesty’s Commissioners say we are a drunken, lying and dishonest race – men without honour, women without chastity …’[i]

 

One of the projects I want to take off the back-burner in the next year deals with defamation in relation to Welsh, and the Welsh people. My initial interest was in the early period of common law actions on the case for defamation – which come to prominence, and show rapid development, in the sixteenth and seventeenth centuries, at a most interesting period for both Welsh governance and the Welsh language, and, as far as I am aware, there has not yet been a full consideration of the way in which actions on the case for defamation dealt with the bilingual reality of Wales. This is something of a stretch for me, in that this is not a period in which I would claim any great expertise, and there may be a need for a bit of hand-holding from those who know it better, but I am not sure that any individual has all of the various skills and knowledge relevant to this, so it does not seem totally out of order for me to have a go at it. At the moment, of course, it is difficult to make any progress, given the inaccessibility of archives. I decided to do a little exploration of such sources as are available to me, and am currently searching through the excellent Welsh Newspapers Online – Home (library.wales). This is proving interesting both in terms of what I have thought of as the ‘core’ of the project – the doctrinal development of defamation law in relation to Wales, Welsh and the Welsh – and also in terms of wider ways in which defamation might have had a distinct role, a distinct accent, for the Welsh, over a much longer period.

I had imagined that my main questions for the doctrinal core would be:

  • in what ways might calling somebody Welsh (alone, or in combination with something else) be defamatory?
  • when might an insult in Welsh be actionable?
  • how would such an insult be evaluated?

I have found some good material on some of these points in the archive in the past, and today turned up a nice quote relevant to the last point, from a letter in a newspaper in 1821:

‘ In cases of libel or defamation, which originated in the Welsh, and are now brought into Court to be tried in the English language, the parties are frequently foiled, and the ends of justice defeated. No language will admit of a literal translation, or is always capable of giving every word its full force and meaning in another.  The Judges are totally ignorant of the Welsh, the Barristers equally so, and the Attornies, not uncommonly without any knowledge of it. The issue of the whole matter then rests on the fidelity of the Interpreter, who is not, at all times, the most competent for his office. And how, I would ask, can justice and equity be administered in such a case?’[ii]

After starting to look at the newspaper archive, however, I have an additional question: how would it be ascertained whether a person alleged to have uttered an insult in Welsh could in fact speak Welsh? This came up in a report of 1808 from North Wales.[iii] The case was Williams (an infant) v. Read and his wife. How much of an ‘infant’ Williams was is not clear – and nor, sadly, though unsurprisingly, are the words, the nature of the alleged insult is not set out. We are told that Mrs Read tried to plead justification, and failed, and that then there was the issue of whether she could have said the words in question (those pleas seem rather contradictory to me, but perhaps I am missing something!). The point was made that Mrs Read came from Cheshire, and that, despite living for 30 years in what was a seriously Welsh-speaking part of the country she had not learned any Welsh, or at least not enough to speak the words in question (were they particularly challenging to a non-native speaker? Lots of Ll and Ch? Had she allegedly described young Williams as the worst thief in Llanfairpwllgwyngyllgogerychwyrndrobwllllantysiliogogogoch?). The jury didn’t accept this anyway, and Mrs Read was found to have defamed the infant Williams. (I am definitely going to have a poke about to see if there are other, more informative, reports: nothing so far!)

There are a number of leads like this to follow up, but also some wider contexts and trends to consider. I do wonder whether there is a particular vehemence to the condemnation of defamation in a community condemned in the way suggested by the quote at the head of this post, but which emphasises, in one of its central cultural institutions, the Eisteddfod, its own heroically truthful tradition: Y Gwir yn Erbyn y Byd (‘[The duty to uphold] the truth against the world’). It is interesting to note how regularly the Welsh language papers seem to leave ‘defamation of character’ in English – a nasty Saxon practice? Also, my superficial perusing has me musing (going a little bardic there?) about the regular mentioning of slander and defamation in relation to the bitter fighting over the position of the Anglican church, and native dissent, in the later nineteenth century and early twentieth century. From a modern, secular, viewpoint, this sometimes looks like a battle over trivial differences, but the feelings were very deep and real, and accusing the Tory/high church powers of defamation against the Welsh in general, and their dissenting churches and their ministers in particular, was a complaint which seems to have been something of a rallying cry.  One example gives a flavour – ‘The Church Times has out-Heroded HEROD in its superfluity of libellous traducement. We have occasinally noticed the sluice of persistent slander against the Welsh people which this High Church paper keeps continually open’.[iv]

Much to ponder, and to investigate further, when it becomes possible. I am encouraged, though, that there is something here. It just might be less the one painless article I had looked forward to, after more or less escaping the long pressure of the Women and the Medieval Common Law book, and more a set of linked pieces of a rather amorphous blobby nature. Ah well – Wales, Welsh and the Welsh never have been straightforward. Croeso i Gymru.

 

GS

7/2/2021

 

 

[i] North Wales Chronicle and Advertiser for the Principality, 22nd February, 1848, p.2. Letter from ‘A Loyal Welshman’.

[ii] D.W., The Cambrian, 16th June, 1821, Letter, ‘The Welsh Language’, p.3,

[iii] North Wales Gazette, 24th November, 1808, p. 3, dealing with proceedings in ‘Carnarvonshire’ County Court.

[iv] South Wales Daily News, 22nd December, 1896, p. 4.

Early modern attitudes: was ‘hermaphrodite’ defamatory?

I am preparing a lecture on the history of common law ‘tortious’ defamation, and have, once again, come across references to the case of Wetherhead v Armitage (1678) 2 Lev 233; 1 Freeman 277; 2 Show KB 18. According to the accounts in the English Reports, this was a case in the King’s Bench in Michaelmas 30 Charles II (= 1678 – we pass over the whole Commonwealth business without counting those years). It was an ‘action on the case’ (i.e. a ‘tort’ claim for compensation) in respect of words. There are some variations in reports and discussions of the case. All agree that the plaintiff was a dancing teacher to ‘young gentlewomen’, and she had, apparently been insulted by the defendant, but his words are given in slightly different forms. He may have said “she is no more a woman than I am; [or possibly ‘she is as much a man as I am’]’ and ‘she had a bastard on J. S. [or possibly ‘she got JS with child’’. There is agreement that he rounded off with ‘she is an hermaphrodite [or a hermaphrodite].” The plaintiff claimed that the words had caused her to lose some of her students, causing her £40 of loss.

There may have been mistakes in the way P’s case was pleaded – reports suggest that perhaps it should have been more exact about when P had been a dancing-mistress, and about which students left as the result of D’s words. What is intriguing to me, however, is what the case could tell us about contemporary attitudes to ‘hermaphrodites’ (which must be taken to be a rough, if problematic, equivalent to ‘intersex person’). There are statements to the effect that this does not count as necessarily defamatory in itself, and that the statement as a whole does not obviously damage a dancing-mistress in her profession ‘for young women are taught to dance more frequently by men than women‘. In one version (2 Show. 19), counsel for D, Mr. Levinz and Mr. Saunders moved … ‘that “hermaphrodite” is no word of turpitude or crime, but only an imbecility’. The last term may seem insulting today, but should be seen as akin to ‘weakness’ – so, somewhat milder, if still troubling.

A slightly different view of the matter was apparently taken by Wylde J, who seemed to doubt the idea of ‘hermaphroditism’, and insisted, presumably following Coke, Bracton and older sources, that one sex must predominate. He is also reported as seeing ‘the matter’ (but which part!) as ‘scandalous’ in and of itself. But the agreed ratio of the case seems to be that ‘hermaphrodite’ was not actionable without special damage (2 Lev. 233).

The case is referred to in later works as authority for the proposition that calling a school-mistress or dancing-mistress an hermaphrodite is not actionable without pleading by P of particular damage. The bit about being a man and having fathered an illegitimate child is sometimes left out, making a simpler story, and there seems a little doubt about what the case actually decided.

Assuming that the ‘not necessarily defamatory and actionable’ view is correct, it does seem interesting that, while P clearly regarded it as insulting to be so designated, being a ‘hermaphrodite’ is not clearly treated by the court as if it would obviously damage the reputation of somebody dependent on public acceptance for her livelihood. Would we expect people of the seventeenth century to blame the ‘hermaphrodite’ for being so? I can’t claim an expertise in 17th C attitudes in this area, but it is worth bearing in mind that the common law did treat allegations of certain physical conditions (syphillis, leprosy…) as being obviously defamatory. (I also like thinking through the logic of the ‘insult’: if P is ‘as much of a man’ as D, and P is an hermaphrodite … what does that say about D?)

Because of the murkiness around the decision and also just because I would very much like to know a bit more about the people involved, it would be excellent to find the KB record for this one, and see what more can be gleaned from it.