The Case of the Piglet’s Paternity. Jon C. Blue
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“to know if he would clear his brother, for he said he feared he had hard thoughts of his brother concerning the gun.” Thomas Pell, who had apparently acted as Medcalfe’s physician, confirmed this testimony. Pell added that Medcalfe’s medical expenses amounted to ten pounds.
The court considered this testimony and ordered Francis Linley to pay Medcalfe twenty pounds in damages.2 It based the size of this award on the loss of Medcalfe’s eye, the loss of his time, and “the great charge of the cure.”
While the Case of the Piglet’s Paternity shows the New Haven court at its medieval worst, the Case of the Exploding Gun shows the court as, at least in some ways, a surprisingly modern institution. It is true that neither jurors or attorneys are anywhere to be seen. But the court went to great pains to hear both the parties and all the relevant witnesses and delivered a judgment that seems reasonable and compassionate, given the limited information we have about the extent of Medcalfe’s injuries.
The procedure used by the parties in this case was miles away from the centuries-old system of common-law pleading used in English (and most American) courts until well into the nineteenth century. Had Medcalfe brought his case in England, he would have had to employ an attorney to draft an exceptionally complicated written pleading setting forth all of the facts legally relevant to his cause of action. A failure to do this correctly would be fatal to his cause. Similarly, his opponent would have had to hire an attorney to attempt to find fault with the first pleading and to draft a responsive pleading of his own. (As we’ll see in a moment, under contemporary English law, any action brought by Medcalfe would have had plenty of legal faults to find.) In some cases, the parties could keep trading replies and surreplies for quite some time, all the while arguing the technical defects of their opponents’ legal handiwork. In Medcalfe v. Linley, however, this complicated pleading process was simply skipped over. It looks as if there was some rudimentary form of pretrial discovery, since Magistrate Gregson had examined Francis Linley prior to the trial. But the parties were not judged on their pleadings. They could simply appear before the court and tell their sides of the story.
The trial was also surprisingly modern in terms of substantive law. Perhaps because this was a civil case, there was no citation to the Old Testament. The court may have attempted to act in a Solomonic way, but its judgment was not burdened with either biblical or contemporaneous legal precedent.
It’s a good thing for Medcalfe that this was so. English law at the time was decisively caveat emptor (let the buyer beware). A famous English legal case at the time illustrates the point. In 1603, a man named Chandelor purchased what he thought was a precious stone from a London goldsmith. The goldsmith told Chandelor the stone was a “bezar-stone,”3 and Chandelor paid the enormous sum of one hundred pounds to buy it. In reality, the stone was a fake. Chandelor sued the goldsmith and won an award in an English trial court. The goldsmith took an appeal, however, and succeeded in overturning the verdict. The justices held that there could be no cause of action against the goldsmith for “the bare affirmation” that it was a bezar-stone. This was the case even if the goldsmith actually knew it wasn’t a bezar-stone all along. The court reasoned that “everyone in selling his wares will affirm that his wares are good, or the horse which he sells is sound.” A cause of action only exists if the seller “warrants” that the goods are what they purport to be.4
Francis Linley hadn’t “warranted” his gun to be safe. If Medcalfe had brought his case before an English court, with an attorney and the right to jury trial, he would have been out of luck. From a modern point of view, the Solomonic decision of the General Court was infinitely more fair.
4
THE “BILLINGSGATE SLUT”
On the same day (December 3, 1645) that the General Court heard the Case of the Exploding Gun, it heard an action of a different sort brought by Hannah Marsh.1 Marsh’s case was what we would now call a defamation case, although, unlike the modern lawsuit, it was not an action for damages. As we’ll see, the court addressed the matter with the outward procedure of a lawsuit but, true to the court’s religious character, ended up resolving the matter as an internal church affair.
Marsh complained to the court that Francis Brewster had called her a “Billingsgate slut”2 and had additionally said that she had been “sent for on shipboard to play the slut.”
Brewster did not contest using the words complained of. In fact, he added a few more of his own for good measure, saying, “He hoped she would dance about the whipping post.” His defense was that the words were justified. He had been “much provoked and disquieted” by Marsh’s “frowardness and brawling on shipboard.”3 Brewster affirmed that one Mrs. Norton of Charlestown told him that “a seaman was speaking filthy words” to Marsh and asked her to go on shipboard “to play the slut.”
Brewster’s defense was corroborated by the testimony of other witnesses. George Walker testified that he had also heard Mrs. Norton’s remarks. Two maids, one employed by Brewster and another employed by a member of the court named George Lamberton, testified that Marsh “was very froward and contentious and a cause of much contention and unquietness amongst them as they came from the Bay.”
Governor Theophilus Eaton, presiding over the court, stated what he understood to be the ordinary meaning of the term “Billingsgate slut.” “Some that were so called,” he told the court, “were convicted scolds and punished at the cucking stool for it, and some of them charged with incontinency.”4
Given this helpful definition, Brewster responded that he “had sufficiently proved the one true and he would not acquit her in the other.” When asked his ground for this “implicit charge,” he said that he relied solely on Mrs. Norton’s words.
The court had heard enough. In its view, both parties had engaged in deplorable behavior. The court told Brewster that “he ought to acknowledge his failing and so repair her reputation as much as he may.” Brewster acknowledged that he was to blame in the matter and said that he was sorry he had spoken so rashly and that “he intended no such charge against her.”
The court then turned to Marsh and reproved her “for her froward disposition,” reminding her that “meekness is a choice ornament for women and wished her to take it as a rebuke from God and to keep a better watch over her spirit hereafter, lest the Lord proceed to manifest his displeasure further against her.”
Marsh acknowledged “it had been some trouble to her that she had been so froward and contentious to the disquieting of others and hoped it should be a warning to her for time to come.”
The “Billingsgate Slut” Case says much about the expected deportment of women in the New Haven Colony (and how expected deportment may have differed from actual deportment), but it also gives us a valuable insight into the General Court’s view of the proper handling of defamation cases. As mentioned, the court seems to have handled the case as an internal church matter. Both parties were reprimanded for their behavior—Marsh “for her froward disposition” and Brewster for maligning Marsh’s reputation. Both parties acknowledged blame and assured the court that they would try to improve their behavior in the future. A somewhat censorious pastor conducting a joint counseling session could not hope for a better result.
It doesn’t appear that Marsh wanted (or could reasonably have expected) monetary damages in the first place. She simply complained to the court about the words Brewster had used to describe her. Raymond Donovan, the secretary of labor under President Reagan, famously asked, after being acquitted of fraud, “Where do I go to get my reputation back?” Marsh, it appears, wanted her reputation back. Although the court proceeding