The Rise of the Action on the Case
| Autor | Víctor Saucedo |
| Páginas | 192-276 |
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The rise of the action on the case in the nature of conspiracy, or malicious prosecution as it would be later called, is a central event in the development of the concept of modern conspiracy for reasons that would become apparent later. Methodologically speaking, most scholars separate both developments as if there were no connections between modern criminal conspiracy and action on the case, other than the fact that both are somehow related to the medieval conspiracy. This is due partly to a lack of understanding of the process by which the action on the case in the nature of conspiracy itself came into being.
There is a general agreement that the very irst reported case where the action on the case was “becoming better known,”1was the case of Fuller v Cook (1584) 3 Leon 100, 74 ER 567, but that the action had been known for a while before that case.2There also is a view that in the earlier cases it was apparent that “the writ of conspiracy had provided inspiration for the action on the Case for malicious prosecution,” though later its form slowly departed from that of the writ.3Furthermore, a relationship with the action for words or slander has also been suggested.4Indeed, as Baker puts it, in the period the action of malicious prosecution was born “there are no clear lines to draw between the three,” meaning between the former and the action for words, and the writ of conspiracy.5Beyond these suggestions, nothing else in the way of explanation is offered. Baker seems to think that the action of malicious prosecution derived from the action from slander, and that, nevertheless, it bore some connection with the writ. By contrast, both Winield and Kiralfy derive the action from the writ of conspiracy, though they point out that there
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was also some connection to slander in the early cases. The question remains as to whether the action of malicious prosecution derived from either of them, and if so, how.
What follows is an attempt to explain the rise of the action of malicious prosecution both in terms of the action for words, and the writ of conspiracy. As it happens to be, the solution to the problem lies in an understanding of the way new concepts are created by the process of conceptual blending, and how meaning is constructed dynamically in discourse. Only in this way do we come to realize that after the emergence of the action for words, lawyers began to draw analogies between the new action and the well-known writ of conspiracy, probably due to practical reasons. Out of that mapping between action for words and writ of conspiracy, a blended space with elements from both frames emerged. Indeed, we can identify this new space as the form of the writ of conspiracy understood in terms of the action for words. At the very beginning, this blended form licensed the construction of alternative interpretations anchored to the input spaces. That is, lawyers, in their arguments, placed themselves in either the action for words or the writ space. But as such arguments were made, and because of them, the distinction was gradually made between the blended space and the input spaces so that the boundaries of a new concept or frame began to emerge. The consequence of this process is that the whole domain of conspiracy was rearranged.
To describe this process, I should irst briely talk about how the action for words emerged as a response to ecclesiastical defamation. I will then show how the action for words and the writ of conspiracy began to blend.
As we will later see in this chapter, the concept of modern conspiracy was a consequence of the rearrangement of the law of defamation, which in turn resulted from the transformations that its structure underwent due to jurisdictional changes. But before we engage with the law of defamation, at least regarding that form which consisted in imputing someone a criminal behavior, we should take notice of the broader cultural and social framework within which the law of defamation was conceptually embedded. In other words, we should refer to the concepts and social patterns the law of defamation frequently presupposes but does not render explicit. I am referring here to the concept of honor, and to the problem of an increasingly litigious society that frequently
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entrenched its disputes by bringing them to court instead of restoring harmony by settling them out of court. The law of defamation was an alternative to the culture of honor, and also a brake on unnecessary prosecution.
Maybe because of the noticeable surge in litigation that manifested itself during this period, Early Modern lawyers had the perception that there was a parallel and unprecedented increase in legal abuses, and particularly a perversion of criminal justice. Hudson bemoaned that the Star Chamber was troubled with “many vexatious suits… and many frivolous bills put in” and that “this great offense of conspiracy, rarely heard of in former times, but in our age grown frequent and familiar.”6Regarding criminal justice, this was facilitated by the existing accusatory system that was set in motion with private prosecutions, frequently the alleged victims of crime. It is true that for real victims of crime prosecution was many a time burdensome and probably an undesirable course compared to some sort of settlement with the offender. However, abusers had the possibility of imprisoning, vexing and damaging the reputations of their enemies.7And there was no lack of reasons for using this tool. Pure revenge was the most obvious motivation,8but it was not the only one. Resorting to the threat of prosecution had become part of the strategy adopted by the parties to business disputes.9This is the motivation that moved a group of creditors to encourage false charges against Stone in the landmark Poulterers’ Case (1611) 9 Co Rep 55b, 73 ER 813. Likewise, another of the leading case of false accusation at the time had originated in an unsuccessful attempt to claim rights in the land.10Furthermore, in disputes over land, the possibility of es-cheat to the landlord after conviction of felony was always hovering in cases of conspiracy.11
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In the Roman Law tradition, infamia was the bad reputation arising from wrongful behavior and disqualifying from holding public duties.12The importance of such ill reputation lies in that when it was well spread it was a cause for suspicion, and therefore a good reason to put a man to answer a charge, and for this to undergo legal proceedings in order to clear himself.13It was natural for the law to take notice of the danger that such ill-intended people may have on innocents by spreading false rumors against them. It was the ecclesiastical jurisdiction that irst conceptualized the problem with a consti-tution enacted by the Council of Oxford (1222), which went by the name of Auctoritate dei patris:
By the authority of Almighty God, We excommunicate all those who, for the sake of hatred, proit, or favour, or for whatsoever other cause, maliciously impute a crime to any other person who is not of ill fame among good and substantial persons, by reason of which purgation at the least is awarded against him, or he is harmed in some other manner.14The law of defamation in England developed from this statute in the form of the interpretation of the courts and by the doctrine of the jurists. For instance, the constitution said nothing of the proceedings, and consequently, both ex oficio prosecution and private actions were allowed in ecclesiastical courts. The scope of defamation was limited to imputations of crime, thus excluding mere insults and imputations of professional incompetence.15How-ever, there were hard cases that fell between the line that separated the imputation of a crime from mere insult.16The crimes attributed could be both ecclesiastical offenses and felonies.17There was no distinction between gen-eral and speciic imputations, nor between imputations in the course of legal
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proceedings and imputations in the country. As to the words constituting the insult, there was no clear rule as to whether they should be strictly constructed or not, and the general rule was that they should be interpreted in their most natural sense.18As to the subjective elements, there had to be malice (understood as an intent to cause harm) on the part of the person uttering the words, but malice was implied from them, and consequently, the burden of proof lay on the defendant who would have to allege and prove lack of malice. Among the defenses that would defeat implied malice, there was qualiied privilege, that is, privileged situations where actionable words were allowed as when the words had been uttered in the course of criminal judicial proceedings because it was a matter of public interest.19The issue of whether the truth of the imputation or justiication was a good defense was subject to judicial discretion, and in those cases in which it was allowed it seems that it was rather a reason to mitigate the punishment than a defense.20Finally, Auctoritate dei patris required that some form of harm had been caused, namely to the plaintiff’s reputation, but there was no requirement of allegation of speciic damage as physical harm or monetary loss as a consequence of the defamation, though plaintiffs frequently added...
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