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Chapter 7 Hermeneutics, History, and the Delegitimation ofCensorship Charity doth always interpret doubtful things favorably. -Richard Hooker Mitior sensus and the Medicine of Cherries From the mid-sixteenth to the mid-seventeenth century English defamation law operated with the hermeneutic rule known as mitior sensus (literally, the milder sense). The rule stipulated that if a statement can be construed in both a defamatory and an innocent sense, the latter should be considered the true meaning, for, Coke explains, "where the words are general or ambiguous , the more favorable reading should take precedence."1 Thus, to take a standard textbook case, to accuse someone of having the French pox (syphilis) was actionable, but since "pox," taken alone, could refer either to the French pox or smallpox, if a person were charged with defamation for having called someone a "poxy knave;' the court would dismiss the charge by interpreting "poxy" in mitiori sensu as a reference to smallpox, which was not an actionable insult.2 The rule, which seems to date from the fourteenth century , became a standard principle in continental defamation law, as well as English. Thus in his Disputatio juridica, Tybius denies that words having an innocent as well as defamatory sense count as iniuria on the grounds that "things should be interpreted in the better sense [interpretationem in bonam partem faciendam esse] ."3 Tudor-Stuart jurists, however, explained the rule in two rather different ways, without really distinguishing between them. In Lord Cromwell's Case (1578-81), the vicar of Northlinham, charged at King's Bench with scandalum magnatum for having accused Cromwell of favoring those "that 184 Chapter7 maintain sedition against the Queen's proceedings:' defended himself by showing that his words had not (falsely) accused the nobleman of supporting armed rebellion-the ordinary sense of "sedition"-but clearly referred to Cromwell's hiring unlicensed preachers to denounce the Book of Common Prayer from the defendant's own pulpit. In its verdict against Cromwell, the court held that "in case of slander by words, the sense of the words ought to be taken, and the sense of them appears by the cause and occasion of speaking them ... and it was said, God forbid that a man's words should be by such strict and grammatical construction taken by parcels against the manifest intent of the party upon consideration of all the words ... quia quae ad unum finem locuta sunt, non debent ad alium detorqueri [things spoken to one end ought not be twisted to another] ."4 Here mitior sensus approaches equitable interpretation: the determination of a person's intended meaning by taking into account the full context of the speech act. As Coke puts it in his summary of Brittridge's Case (1602), "the office of judges is upon consideration of all the words to collect the true scope and intention of him who speaks them."5 Mitior sensus could also, however, authorize what would seem to be the radically different interpretive strategy of creative hyperliteralism-as in the courts' implausible distinction between "pox" and "French pox." To rebut a defamation charge, defendants often found it sufficient to show that their words, strictly construed, could have had an innocent sense, regardless of what the context indicated the speaker's meaning must have been.6 The most notorious (and oft-cited) example concerned one Astgrigg's allegation that "Sir Thomas Holt struck his cook on the head with a cleaver, and cleaved his head; the one part lay on the one shoulder and the other on the other." Holt sued in King's Bench, but the judges decided for the defendant on the grounds that Astgrigg had not said that the cook died, and since he had not accused Holt of killing his cook, just of chopping his head in half, the words were not actionable.? However implausible the verdict in this instance, it rested on legal principles of far-reaching importance. These had been spelled out a few years earlier in the verdict of a similar case, which held that for the law to consider words defamatory "two things are requisite: (1) that the person who is scandalized is certain; (2) that the scandal is apparent from the words themselves." Conversely, if the words did not unambiguously refer to specific persons or did not explicitly allege an actionable offense, they "shall be taken in mitiori sensu."8 Cowell's Institutiones reaffirms these hermeneutic ground rules: "Neither words that refer broadly to a whole class of things nor those...

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