‘A certain false,malicious,scandalous and famous libel’: Sir Henry Morgan’s legal action against a London publisher of Alexandre Exquemelin,1685

Introduction

Sir Henry Morgan (1635?–1688) gained fame and amassed a fortune raiding Spanish holdings in the Americas on behalf of the English colony of Jamaica. His operations in the Caribbean and West Indies between 1668 and 1671 helped preserve England’s tenuous hold on Jamaica, then key to its holdings in the hemisphere. They also degraded and destabilized the rival colonial infrastructure of Spain. Indeed, Morgan’s 1668 raid on Portobello netted so many Spanish coins that they ‘became legal tender in Jamaica’. ¹

However, the character and legality of Morgan’s actions against the Spanish, some notable for brutality against prisoners and civilians, were questioned at the time and remain open to debate. Morgan led campaigns under Jamaican commission during periods of regional tension, but also at times when the mother countries of Spain and England were technically at peace. His 1670–1671 operation to take Panamá, for example, even though it earned official thanks from the Jamaican government, proved politically embarrassing enough for London to recall both Morgan and Governor Sir Thomas Modyford to face charges. ² Morgan ultimately returned exonerated, with a knighthood and a commission as lieutenant governor.

Some of these old controversies re-emerged in 1684, when London printers William Crooke and Thomas Malthus published competing English translations of a book, originally published in Dutch in 1678, by Alexandre Olivier Exquemelin. The latter had served under Morgan’s command with the Caribbean buccaneers on several campaigns. He produced a vivid memoir that depicted Morgan at times in an unflattering light, and broadly classified his activities as piratical. Its appearance in English brought Exquemelin’s book to the attention of Morgan, at a time when partisanship and his own indiscretions had helped remove Morgan from Jamaican government. Morgan’s attorney, John Greene, in early 1685 brought legal action against Malthus, and seems to have at least threatened Crooke with similar action. Crooke apparently settled quickly; the effort against Malthus ended in an easy victory for Greene’s client.

Yet when mentioned in writings on Morgan, the libel episode has been ‘repeatedly mischaracterized’, according to modern scholar Richard Frohock, whose work includes close literary analyses of Exquemelin’s early appearances in English. Principal problems include the chronology of events, the conflation of separate disputes over Exquemelin’s depiction of Morgan, and the apologies the printers involved did, or did not, make. ³

The substance of the libel complaints themselves is also frequently overlooked. They came at an interesting time in English legal and press history, when the country’s pre-publication licensing requirements had been allowed to lapse. While this reduced bureaucratic censorship, some printers seem to have felt it had the less desired effect of leaving them vulnerable should the contents of their work overstep the libel laws and other press regulations. That said, licensing does not seem to have ever been tested as a defence to a defamation claim; as noted below, it was rejected as a defence in a seventeenth-century seditious libel prosecution. There is also the relevant issue of whether Morgan’s complaints against Exquemelin had factual merit. This is murky territory, of course, and as will be seen the case that went to court was essentially settled by default. But Morgan’s 1685 complaints against the London publishers of Exquemelin can be seen as marking the first step in what has been an ongoing critical appraisal of the buccaneer-turned-author’s veracity.

Only one document appears to have survived in the UK National Archives from this episode. A hand-written plea roll (an official record of pleadings in royal courts of common law), it details how Greene challenged the version of Exquemelin’s book printed by Thomas Malthus, which had been translated from a Dutch edition. The approximately 2500-word long plea roll is in Latin, but retains English forms of the controversial volume’s title and excerpts. It shows Greene depicting Morgan as fearing for his life because of Exquemelin’s characterization of his activities as piratical, and distancing his client from the buccaneers in general to emphasize his activities as legitimate privateering. Though not always clear as to what Morgan considered libellous, it shows Greene built his case around passages indicating Morgan had come to Jamaica as an indentured servant; associating him with buccaneers such as Captain Edward Mansfeildt (the name has also been rendered as Mansvelt or Mansfield) and their activities; and portraying episodes occurring at the capture of Puerto del Principe (modern Camagüey, Cuba) in 1668 and the castle of San Lorenzo de Chagre in 1671. ⁴ The plea roll’s contents do not directly address Exquemelin’s most explicit statements about the conduct of the buccaneers led by Morgan.

While the document involves only the case against Malthus, the areas of complaint it cites probably echo those Morgan raised against the version of Exquemelin that printer William Crooke had published, translated from a Spanish edition. Contemporary correspondence and journalism indicates that Morgan initiated a suit against Crooke, who settled out of court, printing an apology and apparently also making a payment to Morgan. No legal documents have yet been found from this episode. ⁵ It is possible Greene merely threatened Crooke with a suit. Crooke’s fast settlement, coupled with the case against Malthus proceeding to court, may have led others to interpret this as the actual bringing of action against Crooke.

The plea roll from the Malthus trial has been cited only occasionally as a source. The earliest example may be a 1922 book by Francis Russell Hart, Admirals of the Caribbean, whose chapter on Morgan includes, among other things, a short translation of part of its opening Latin content. The substance of the actual complaint is only briefly summarized: ‘The specific libels were enumerated and substantial damages claimed’. ⁶ Frohock observed that while Hart’s work ‘offers the most extensive information about Morgan’s libel suit’ among contemporary treatments, unfortunately its handling of the disputes and their resolutions ‘may have been the origin of key confusions perpetuated in later scholarship’. ⁷ It helped inform, for example, chapters on the episode in two subsequent Morgan biographies that would both be influential themselves: W. Adolphe Roberts’s colourful Sir Henry Morgan (1933), and E. A. Cruikshank’s drier Life of Sir Henry Morgan (1935). Roberts’s work, which cited Hart in its bibliography, included in an appendix a translation/transcription of the full archival document, rendering its contemporary English spellings in modern form. Entertainingly written, its chapter on the libel suit is often vague about sources and employs apparent artistic license and conjecture. ⁸ Cruikshank’s more reserved book cites Hart as a source for its chapter on the libel action. Like Hart, it touches only briefly on the basis of the complaint. ⁹

Under any circumstances, revisiting the original National Archives plea roll seems appropriate. Working with a new translation/transcription of it, courtesy of UK researcher and scholar Duncan Harrington, this article will examine what it yields about the substance of the libel complaint. It presents this in the context of Morgan-related sources, amid some observations about contemporary English libel law. The translation/transcription of the plea roll, with period English spellings intact, is reproduced in the Appendix.

Exquemelin and the boucaniers

Trying to unravel the tangled story of Morgan’s 1685 libel suits begins with the 1678 publication, by Amsterdam bookseller Jan ten Hoorn, of Exquemelin’s original volume, De Americaenshe Zee-Roovers. Central to its contents were the author’s apparently eyewitness accounts of Morgan-led operations involving Jamaica-based buccaneers that included attacks on Puerto del Principe and Portobello in 1668, Maracaibo in 1669 and Panamá in 1671.

Almost three-and-a-half centuries later, Exquemelin remains perhaps the best-known contemporary source for these episodes. Others do exist, however. Morgan’s own report to London about the Panamá campaign appeared in a 1683 omnibus published, ironically, by the same Thomas Malthus who Morgan would later sue over his edition of Exquemelin. ¹⁰ An English translation of the corresponding report of the President of Panamá, Juan Pérez de Guzmán, was published in 1684, although it has been faulted. ¹¹ Other relevant English-language sources can be found in, among other places, published collections of government documents. ¹² Spanish materials have also been utilized, to varying degrees, in works in English on Morgan and his era. ¹³

Yet nothing has rivalled Exquemelin’s memoir for its vibrant, sometimes lurid, detail on the men – the buccaneers – Morgan led against the Spanish on Jamaica’s behalf, and with whom Morgan remains commonly associated. They are characters that, as historian Peter Earle admitted, ‘one never really knows whether to admire or despise…’. ¹⁴ Their name comes from boucanier, a term describing their origins as hunter-traders, boucan being a Carib word meaning both the place and the process whereby meat was smoked. ¹⁵ Diverse, but mostly of Dutch, English and French extraction, they drifted into raiding and privateering, and by the mid-1600s several buccaneer colonies thrived in the Caribbean despite general Spanish opposition to their presence. By Morgan’s era those based on English-held Jamaica had evolved into an ostensible privateer fleet, protecting the island after English warships went home. In reality, the buccaneers tended to operate against Spain regardless of whatever political and legal reality existed an ocean away in Europe. Certainly Jamaica’s governors, and their French and Dutch counterparts in the Caribbean, tended to overlook their excesses. ¹⁶ And Morgan, operating with official Jamaican support, would ultimately lead this multi-national force as an extension of English power on operations against Spanish holdings.

Exquemelin was not the first to write about the boucaniers. An earlier chronicler, for example, was Jesuit missionary and author Jean Baptiste Du Tertre, who mentions the boucaniers and similar characters in parts of his four-volume Histoire Generale des Ant-Isles, published in Paris in 1667–1671. ¹⁷ Exquemelin, who acknowledged having ‘read various descriptions of America’, may have known of Du Tertre’s work. ¹⁸ Regardless, Exquemelin’s 1678 tome would transcend it and other contemporary sources in readership and influence.

At one time, Exquemelin was thought to have been a pseudonym for another writer, but later research refuted this theory. ¹⁹ While little is known for certain about Exquemelin, he has attracted intelligent conjecture. C. H. Haring deduced that ‘he was probably a Fleming or a Hollander, for the first edition of his work was written in the Dutch language’. ²⁰ Jack Beeching ‘hazarded’ the following about Exquemelin:

He was born about 1645, and must have died after 1707. In 1666 he went (a Frenchman? A Breton? Flemish? Dutch?) to Tortuga, as an engagé of the French West India Company. He served there three years and then enlisted with the buccaneers, this being at a time in Tortuga when, though retaining much of their independence, they had begun on occasion to serve French interests at sea. He served until 1674, presumably as barber-surgeon, and then returned to Europe. In the [French] attack on Cartagena in 1697 [during the War of the Grand Alliance], which was the buccaneers’ swan-song, he makes an appearance on the muster-roll as a surgeon. ²¹

Historians have increasingly handled Exquemelin’s work with caution, which does not, of course, render Morgan’s behaviour stainless. The author of a 1915 work on Jamaica observed that some critics considered Exquemelin’s book ‘a libel on Morgan, and that he was not nearly so black as he has been painted’. ²² Roberts in 1933 noted that ‘regrettably, he [Exquemelin] has been the sole authority consulted for the many brief sketches of Sir Henry Morgan which appear in books on piracy, [and] the dozen or so novels in which Morgan is fictionized’. ²³ Two years later, Cruikshank labelled Exquemelin’s history ‘untrustworthy’. ²⁴ Among later observers, Frohock acknowledged that Exquemelin has often ‘been criticized for his apparent fabrications and exaggerations’. ²⁵ Earle, who employed Spanish sources in writing about Morgan’s operations, contended that Exquemelin deliberately portrayed his former commander inaccurately: ‘The motive for this is quite clear. Exquemelin, like many of the privateers, thought that he had been cheated by Morgan after Panamá [when the loot was divided], and the book is a very good way of getting his own back’. ²⁶ Morgan’s 1685 legal actions against Exquemelin’s English-language publishers may be seen as the starting point for this progressively critical assessment.

The English editions

By the early 1680s, Exquemelin’s narrative had become a best seller in several continental languages. Jan ten Hoorn’s 1678 edition of De Americaenshe Zee-Roovers sold well enough for a German version to follow a year later, published at Nuremberg. A Spanish translation attributed to a doctor named Alonso de Buena-Maison, Piratas de la America, appeared in Cologne in 1681; a pair of expanded editions followed in 1682. The same year saw ten Hoorn reprint a similarly expanded version of De Americaenshe Zee-Roovers in Amsterdam. The Spanish and Dutch editions of 1681 and 1682 respectively seem to have been largely consistent, though the former was modified to better suit Exquemelin’s work to a Spanish readership that could have been expected to be critical of Morgan’s actions. ²⁷ Piratas de la America’s front matter includes, for example, a reference to Morgan as an ‘Anglo arrogante’. ²⁸

It was an English translation of Buena-Maison’s Piratas de la America that London bookseller William Crooke printed in 1684. Crooke entered printing as an apprentice in 1655, and began work as a bookseller about a decade later. He was known for publishing Thomas Hobbes, but otherwise offered a range of works. ²⁹ He entitled his 1684 edition of Exquemelin’s work Bucaniers of America, and adjusted the author’s name to ‘John Esquemeling’. ³⁰ His first edition, according to Frohock, ‘must have sold robustly because Crooke published a second within a few months’. ³¹ At some point after Crooke’s first edition appeared, a rival London printer, Thomas Malthus, brought out his own English version of the work by ‘J. Esquemeling, one of the Bucaniers’. His was based on the Dutch original, and in his preface Malthus criticized Crooke’s effort derived from Buena-Maison, noting that his own edition’s readers ‘will quickly find how much more it is to be valued than a slavish, a superstitious draft of so Erroneous a Translation as that of the Spanish…’. ³² Malthus, whose own press’s output was as diverse as Crooke’s, offered his version for sale under the title The History of the Bucaniers. ³³

Both printers registered their upcoming books with the Stationers’ Company, an act regularly undertaken ‘with the object of avoiding disputes as to ownership…’. Malthus registered his edition on 29 March 1684; a record seems to exist only for Crooke’s second edition, registered on 6 October 1684. ³⁴ At this point in English legal history, neither Crooke nor Malthus would have needed licenses to publish their works. Such would have been required under the 1662 Printing Act, but as it lapsed in 1679, and Parliament did not renew it until 1685, in 1684 there was no systematic licensing statute in place. The legal potential still remained for pre-publication suppression of seditious materials, and there was a running dispute in 1679–1681 over the king’s attempts to re-establish licensing controls. Printers of controversial tracts might suffer raids, official or otherwise. One such action caused a printer in 1680 to release a work in unfinished form. ³⁵ Some printers, late in 1684, even asked to have the licensing system reinstated to help them avoid publishing tracts for which they might subsequently be held legally responsible. ³⁶ However, whether a work being licensed would have been a defence to a libel suit never seems to have been tested. It was not a defence in a 1634 seditious libel trial involving Puritan lawyer William Prynne’s Histrio-Mastix, a book-length attack on the theatre. Though (in the words of a modern text) ‘duly authorized’, it ultimately earned its author the charge of ‘scandalizing the Queen and suggesting that it was “lawful to lay violent hands upon a prince”’. ³⁷

While most contemporary press restrictions were aimed at controlling sedition such as that charged to Prynne, the libelling of a private individual, which Morgan’s attorney would characterize Exquemelin’s book as constituting, was by now treated as a tort to be resolved by lawsuit. In this regard, neither Crooke nor Malthus seems to have been concerned over the contents of their versions of Exquemelin’s volume. Both, after all, generally praised Morgan’s exploits. That said, Frohock, in his literary analysis of early Exquemelin versions, felt that Crooke (perhaps warily) ‘attempted to offset the candour of the main narrative with a strong interpretative frame which boldly, if implausibly, casts the English buccaneers in the language of epic heroism’. ³⁸ As for Malthus, he had in the previous year published Morgan’s own report of the Panamá affair. As Baer observed: ‘Having supported Morgan’s claim to innocence in 1683 [by printing his report], Malthus probably intended nothing more than profit from the translation of Americaensche Zee-Rovers …’. ³⁹ However, Frohock sensed in the translation published by Malthus a deliberate ironic mocking of Morgan. ⁴⁰

Regardless of motive or intent, at some point after one or both volumes appeared in 1684 representatives of the old admiral’s camp presumably began to complain about how Exquemelin had characterized Morgan. Henry Morgan’s cousin and brother-in-law Charles Morgan was in England in 1684, at least into June. ⁴¹ Perhaps through Charles Morgan, word of the books reached Jamaica.

Ayres’ critique

That trouble was looming can be inferred from the work of a third London printer, Philip Ayres, coming out in 1684 after the appearance of Crooke’s first edition of Exquemelin. Ayres’ book was an omnibus called The Voyages and Adventures of Capt. Barth. Sharp and others in the South Seas. It included a version of Morgan’s report of the Panamá campaign, as well as the corresponding one of the president of Panamá. The latter document, Ayres wrote in his preface, ‘was intercepted, going for Spain, and confirms (if need were), the Credit of the precedent Relation’. The reason for including such materials, Ayres added, concerned Exquemelin’s depiction of Morgan, with the edition at issue being based on a Spanish original, i.e. Crooke’s. Ayres acknowledged his own ambition to ‘in some measure rescue the Honour of that incomparable Souldier and Seaman, from the Hands of such as would load him with the blackest infamy’. Toward that end, Ayres spent much ink condemning the ‘innumerable Falsities’ that had appeared under Exquemelin’s name. ⁴² His list of Exquemelin’s alleged failings can be summarized as follows:

The Panamá campaign may be illustrative. Modyford indeed issued a commission to Morgan on 22 July 1670 to take action in Jamaica’s defence. ⁵⁷ Though sent to Jamaica with orders to restrain the buccaneers and seek to ease tensions with Spain, eventually he obtained formal authority to issue privateering commissions as needed. Modyford held that the distance between Jamaica and Whitehall required him to have wide discretion, and he and his council ultimately contended that privateers were not only needed to defend the island, but that their practice brought significant economic benefits. Taking away their Jamaican letters of marque was also likely to send them into similar employment elsewhere. His decision-making seems to have gone largely unchallenged until the sacking of Panamá finally pushed London into action. ⁵⁸

Further muddying the waters is the fact that in late 1670, after the effort to take Panamá was enthusiastically under way, Modyford tried to get word of the peace treaty to Morgan. As Baer remarked, when it came to determining ‘what Morgan knew and when he knew it … [a] full investigation might have answered that question, but [English King] Charles II’s ministry did not want such an investigation or trials of Modyford and Morgan’. ⁵⁹ As noted above, Morgan’s surgeon, Richard Browne, felt buccaneer lust for gold fed the regional conflict. He even claimed that reports of Spanish preparations to invade Jamaica came from prisoners tortured into making statements to justify an English attack. ⁶⁰ Nonetheless Morgan retained supporters in Jamaica even after being sent home, under arrest, on the frigate Welcome in early 1672. One letter writer described Morgan as having received ‘a very high and honorable applause for his noble service therein’. He called Morgan ‘a very well deserving person, and one of great courage and conduct, who may, with his Majesty’s pleasure, perform good public service at home or be very advantageous to this island if war should again break forth with the Spaniard’. ⁶¹

Crooke’s response

As has been noted, and will be further discussed, Morgan’s attorney would ultimately initiate or perhaps just threaten Crooke with legal action, which would go no further because Crooke would settle and print an apology. However, Crooke also offered a separate, printed discussion of his version of Exquemelin in terms that suggest (as Frohock observed) it was a response to criticism from Ayres and Malthus. ⁶² This appeared in the preface to a book Crooke printed in 1685, and which he marketed as a companion to his controversial edition of Exquemelin. Written by Basil Ringrose and entitled Bucaniers of America, The Second Volume, it documented the far-ranging campaign of buccaneer captain Bartholomew Sharp. In the preface, Crooke distanced himself from Exquemelin’s views of Morgan, essentially pleading ignorance: ‘For what if [Exquemelin] … did mistake himself in two or three points, relating to Sir Henry Morgan? Must, therefore the Publisher be blamed for faithfully Printing, what was most faithfully Translated?’ Regarding the burning of Panamá, ‘it was constantly so reported, and believed here in England, viz. that the English had set fire unto it’. Moreover, Crooke wrote, assuming Exquemelin tarnished Morgan because he was ‘Male-contented [sic] with his Fortune at Panama, what is that to me? What fault was that of mine?’ ⁶³

Morgan’s political troubles

It seems unclear how and exactly when Morgan, in Jamaica, learned of Exquemelin’s appearance in English. But as Baer noted, there were ‘political, literary and biographical’ reasons for Morgan to object to the book and his portrayal in it. ⁶⁴ The first was the most pressing of these. For, by 1684, Morgan had been ousted from public life in Jamaica; did the era’s partisan politics make Morgan sense especial threat in what Exquemelin wrote?

Morgan’s star had indeed risen after his exoneration over the Panamá adventure. In 1674, following some administrative confusion, he was named lieutenant governor of Jamaica. Being untitled when entering such a post, in keeping with custom he received a knighthood. Ironically, he became particularly keen at curtailing piracy. All went reasonably well for Morgan until about 1681, when partisan politics intervened in the form of a new governor, Sir Thomas Lynch, a Whig supporter of Parliament. Not long after Lynch took office in 1682, he passed on an order for Morgan, a Tory monarchist and member of the island’s planter’s faction, to surrender his titles of lieutenant governor and lieutenant colonel. Morgan remained on the island’s council, but in September 1683 came into serious disagreement with Lynch. The following month, Lynch complained to the council of riotous, drunken and disloyal behaviour by Morgan and some of his allies. This resulted in Morgan’s removal from the council and all other offices. Henry Morgan retired to a Jamaica estate, and remained suspended from the council even after Lynch died in August 1684. He would be readmitted to it shortly before his own death in 1688. ⁶⁵

Could Morgan in 1684 have had cause to fear the reopening of old controversies? As will be seen, Morgan would contend that publication of Malthus’s volume – probably Crooke’s as well – injured not only his reputation and name, but his personal relations with the monarch himself. ⁶⁶ The latter claim is presumably an exaggeration, but it was a time of plots and political tension, with some of the looming discord set to emerge in the Monmouth Rebellion of 1685.

The legal action begins

At some point in late 1684 or early 1685 Morgan’s camp must have begun, through Greene, weighing their legal options against Crooke and Malthus. Greene apparently acquired a copy of Malthus’s edition of Exquemelin early in January 1685. ⁶⁷ Greene may have warned both printers of imminent legal action, hoping for retractions or other outcomes. If so, it may be that the threat was enough to compel Crooke to seek a settlement; no complaint against him seems to have actually gone to court, or at least no paperwork appears to have survived from it. Contemporary sources hold that Crooke agreed to publish an apology in return for Morgan dropping legal action; as will be discussed below, the settlement may also have involved payment.

Crooke’s rival Thomas Malthus was less compliant. So in early February 1685, Greene brought to the Court of King’s Bench his client Henry Morgan’s complaint against Malthus. The Court of King’s Bench heard all criminal felony cases (‘pleas of the crown’) and shared with the Court of Common Pleas jurisdiction over actions of trespass of all types, including defamation. Since the 1300s, it had functioned in Westminster Hall alongside the other superior English courts. A large, cloth-covered oak table, where files were placed and consulted, dominated each. In the Court of King’s Bench, royal tapestries covered the wall against which the judges sat on a long platform, with a similar one provided for clerks. Lawyers in this era worked standing next to a wooden bar, trying to speak above the noise, for the courts were not walled off from the main hall. ⁶⁸

Greene presented his case to a court sitting for the Easter term. Its head was George Jeffreys (1645–1689), soon to be ennobled as Baron Jeffreys of Wem and become James II’s Lord Chancellor. His service on the bench was notable for harsh sentences, such as those for convicted perjurer Titus Oates, and in the aftermath of the Monmouth Rebellion. ⁶⁹ Greene’s complaint was that Malthus had ‘disclosed and published’ his libellous volume on 10 January 1685 in or near St. Martin in the Fields. ⁷⁰ This probably indicates where and when Greene or his agents found it for sale. Greene characterized Exquemelin’s book as (in expanded Latin) quoddam falsum malitiosum scandalosum et famosum libellum: ‘a certain false, malicious, scandalous and famous libel’. The latter term, libel, was and remains generally understood as involving the intentional spread, via writing or publication, of defamatory words. The 1674 edition of John March’s Actions for Slaunder [sic] – its title notwithstanding, it also included a discussion of libel – set forth that libel consisted of writing or publishing about another person ‘by which his fame or dignity may be prejudiced.’ ⁷¹

Libel law and the role of truth

The development of English libel law is a complex historical thread, and its state circa 1684–1685 can only be treated very briefly here. English courts – religious, then secular ones – had a long-standing mission of adjudicating cases involving actionable words against individuals, generally with the idea of preventing disputes from escalating. By this means, the aggrieved might avoid duelling or other violent outcomes, and instead go to court to seek redress for financial or temporal loss. ⁷² By 1660, the common law had begun to differentiate between spoken defamation (slander) and written defamation (libel). ⁷³ By 1670, at least, the civil tort of written defamation or libel had been established. ⁷⁴ This would seem to have paved the way for Greene’s suit of 1685.

As will be seen, the document from Greene’s action against Malthus did not always make clear exactly why certain statements from Exquemelin’s book (sometimes quoted at length) were deemed libellous to Morgan. What is clear is that Green alleged that at least portions of these excerpts were false, and that they were produced with malice. The legal concept of malice has a complicated history, but by this era alleging defamatory words had been used with malice had become a matter of form in such a writ. ⁷⁵ As to the falseness or truthfulness of the passages, this introduces an intricate aspect of period libel law: what today would be termed a ‘truth defence’– i.e. that a true statement did not constitute libel. ⁷⁶

Elizabethan-era defendants accused of defamation could argue, in their defence, that their words were true and therefore justified. ⁷⁷ Change came with the 1605 Court of Star Chamber decision De Libellis Famosis. This, among other things, laid the foundation for later seditious libel law, because it established that libelling a magistrate or other public official was a greater offence than doing so against a private individual. ⁷⁸ This took existing criminal libel law in general in a new direction, with the emerging concept of seditious libel developing as complementary to existing criminal libel law, not separate from it. ⁷⁹ One area where De Libellis Famosis helped influence the general doctrine was in establishing that truth was irrelevant when it came to criminal libel. ⁸⁰ This concept long remained central to English criminal libel law concerning both private and public figures. ⁸¹ Indeed, from the thirteenth to the early nineteenth centuries, ‘the essence of criminal libel [was] the prevention of loss of confidence in government’. ⁸²

With that said, the conventional wisdom across many sources of legal scholarship is that the principles behind De Libellis Famosis did not apply to private lawsuits, i.e. that truth at this time could still be used as a defence in a civil libel claim, such as the one Greene brought against Malthus on Morgan’s behalf. Their number includes classic texts like those of Sir William Blackstone (Commentaries on the Laws of England), William Blake Odgers (A Digest of the Law of Slander and Libel), and Thomas Starkie (A Treatise on the Law of Slander and Libel). ⁸³ More modern ones include the UK’s Law Commission, which in a 1982 working paper held that ‘[I]n the tort [of defamation] the principle that the truth (justification) was a defence was retained for both libel and slander’. ⁸⁴ Another twentieth-century work may be worth quoting at length in this regard:

The Star Chamber generally treated libel as a crime, although occasionally the award of damages shows that it might be considered also as a tort. But it is clear that the Star Chamber did not take any pains to distinguish the criminal from the tortious aspect of defamation, for there was no particular need for it. In the common law courts, however, the line between crime and tort was fairly clear, and highly important. Hence the Star Chamber rule that truth is no defence had to be reconsidered when libel came into the common law courts. They naturally retained their own rule about justification when dealing with libel as a tort (thus keeping it parallel with slander), and followed the Star Chamber rule for criminal libels. ⁸⁵

However, writing in the mid-nineteenth century, legal scholar John Townshend observed that:

The rule allowing truth as a defence in a civil action for libel appears to be an innovation, and of comparatively modern introduction … Until the statute of the fourth year of Queen Anne, A.D. 1706, only a single plea was permitted in a civil action, and there is no record prior to that statute of a plea of truth in an action for libel. ⁸⁶

Townshend was among the sources that led another scholar, Roy Robert Ray, writing in the 1930s, to conclude cautiously that ‘Possibly there was a time in English law when the maxim, “The greater the truth, the greater the libel”, applied to civil actions’. ⁸⁷ Because Malthus, as will be seen, ultimately defaulted on the case, and as Crooke had already offered to settle, the truth of Exquemelin’s statements was never put to the test in a courtroom, nor the possibility of truth as a defence. (How such a defence could have been conducted is another matter.)

Details of the complaint

The plea roll describes the case Greene argued on Morgan’s behalf against Malthus, and summarizes the proceedings until 1 June, when the suit was resolved with a settlement. ⁸⁸ The document states in several places that the case was heard ‘before the lord king’, but this appears to have been a legal fiction of the era. ⁸⁹ Moreover, the document refers to Greene initiating the suit ‘before the lord king’ on a date which can be computed as 7 February 1685, but this is the day after Charles II died, the monarch having suffered a stroke or seizure on 2 February and dying at noon on 6 February. ⁹⁰ If this dating is correct, the Court of King’s Bench appears to have continued working despite the death of the monarch. The plea roll does make it clear that Greene filed the complaint after Charles II’s death.

Greene’s complaint basically opened using a pattern set in an earlier era. This ‘set out the good name and law-abiding character of the plaintiff, and it proclaimed the wicked designs of the defendant to take away that good name and to subject the plaintiff to the consequences attendant upon commission of a criminal act’. ⁹¹ Perhaps surprisingly, Exquemelin’s most graphic atrocity stories do not figure directly in the plea roll. Ayres had criticized their appearance in Crooke’s edition, and Crooke would later apologize for them as part of his settlement. Barring the summary in the plea roll being incomplete, it may have been that Greene deemed it unnecessary to introduce such content explicitly in court. Regarding passages Greene is recorded as having objected to, the lawyer sought £10,000 for his client. The declaration he put forth on Morgan’s behalf may be summarized as follows:

The plea roll, describing the opening of the legal action, refers to ‘Thomas Malthus in the custody of the marshal’, which suggests Malthus was detained at the start of the trial. Possibly a Bill of Middlesex was involved. ¹⁰⁰ How long he remained in custody is unclear; he seems to have been able to secure his release. This may be presumed, because the court issued a summons for Malthus to answer Greene’s charges at a hearing scheduled for 6 May, and according to the plea roll, Malthus, for whatever reason, ‘although solemnly summoned, did not come’. ¹⁰¹

His failure to answer the summons established his liability. The sheriffs of Middlesex – Sir William Gostlin and Sir Peter Vandeputt – were then ordered to empanel a 12-member jury to assess Henry’s actual damages and legal costs, this being a routine function of English juries in the era. ¹⁰² By 27 May, Greene had, presumably in consultation with Gostlin and Vandeputt and the jury (perhaps with Malthus as well), reduced Morgan’s £10,000 claim for damages to a more modest £200. The court would eventually (on 1 June) award Malthus a total of £210, the extra amount covering legal expenses. ¹⁰³

Resolution

Resolution of Morgan’s complaints against both printers was reported in the London press at the same time, just after the Court of King’s Bench fixed the damages Malthus was to pay. The London Gazette reported:

Westminster, June 1. There having been lately Printed and Published two Books, one by William Crook, and the other by Tho. Malthus, both [sic] Intituled, The History of the Bucaniers, both which Books contained many False Scandalous and Malitious [sic] reflections on the Life and Actions of Sir Henry Morgan of Jamaica Kt. The said Sir Henry Morgan hath by Judgment had in the Kings-Bench-Court, recovered against the said Malthus for Printing and Publishing of the said Libel 200 l Damages And on the humble Sollicitation [sic] and request of William Crook hath been pleased to withdraw his Action against the said Crook and accept of his Submission and Acknowledgment in Print. ¹⁰⁴

Crooke may not have gotten away as lightly as reported. Later, Charles Hatton, in a letter to his brother Viscount Christopher Hatton, volunteered details he had learned of the episode:

About y^e yeare 1680 ther came out a history of y^e Buccaneers, printed in Flanders, in Spanish, pretended to be a translation from Dutch writ by one Esquemeling, a Dutch buccaneer, w^ch Crooke a bookseller got translated into English and printed, in w^ch Sr Henry Morgan was represented as a very barbarous pyrate. Sr Harry brought his action ag^t Crooke, proved all he did was by virtue of a commission of y^e Governor of Jamaica and y^e Kings authority, and recovered 300 ^l or 400 ^l damage from Crooke, about y^t some [sic – sum] I am sure Crook himself told me. After w^ch, his History of y^e Buccaneers wase looked upon as fabulous [i.e. fictional] and sold for noe more than wast[e] paper. ¹⁰⁵

So according to this, Crooke paid out perhaps double the base sum the Court of King’s Bench ordered Malthus to render Morgan in damages.

Despite what some histories have indicated, Frohock noted, Malthus did not produce a post-lawsuit edition of The History of the Bucaniers with an apology from his press. ¹⁰⁶ His stint as a printer ended the following year. ¹⁰⁷ Crooke did indeed publish an apology for having offended Morgan, thanking the admiral-general in passing for allowing him to settle out of court. His ‘Submission and Acknowledgment’ (as the London Gazette termed it) does not seem to have been directly included in any future edition of Exquemelin from Crook’s press. Frohock suggested it might have been in the form of a short, standalone pamphlet that perhaps some sellers or collectors inserted into copies of the disputed book. ¹⁰⁸

In his apology, Crooke explained the controversy by pleading ignorance of the facts about Morgan’s life and activities. He had been unwise to rely on a Spanish translation, though he felt the lack of pre-publication licensing also invited the problem. As Crooke’s apology itemized some of his initial edition’s controversial passages, the essence of Morgan’s objections to Crooke’s edition of Exquemelin might be generally deduced. One matching the complaint against Malthus involved Morgan’s origins, ‘for he was a Gentleman’s Son of good Quality, in the County of Monmouth, and was never a Servant unto anybody in his life, unless unto his Majesty, the late King of England’. Another assertion concerned the legality of Morgan’s actions: ‘Neither did he ever sail, but by Commission of the Governor of those Parts’. Moreover, ‘The Cruelties and barbarous Usages of the Spaniards, when at his Mercy, or his Prisoners, do manifestly reflect on the Reputation of Sir Henry Morgan, and were wholly an error in the Original Author of this History’. Thus Morgan did not (among other things):

Assuming his edition of Exquemelin was as worthless as Hatton intimated to his brother, Crooke apparently tried to recover by selling it with Ringrose’s history of Bartholomew Sharp’s campaign as a companion volume. ¹¹⁰ Crooke continued his career as bookseller until his death in 1694. ¹¹¹

Conclusion

The plea roll from Sir Henry Morgan’s 1685 private libel action against Thomas Malthus offers significant insight on a fascinating episode. It shows Morgan’s attorney John Greene depicting his client as feeling politically and even physically threatened by Exquemelin’s book. This could be an exaggeration in keeping with the standard ‘form’ of such a complaint, but Morgan, recently removed from Jamaica’s council and in an uncertain partisan atmosphere, may have felt he had cause for concern. The plea roll also identifies disputed areas of Exquemelin’s book, such as its presentation of biographical details about Morgan and his coming to Jamaica; Exquemelin’s association of Morgan with buccaneer characters and activities outside the realm of ‘legitimate’ privateering; and some aspects of his operations on Jamaica’s behalf.

Regarding the latter area, Greene’s specific areas of objection are not always clear; it is possible that the plea roll presents an incomplete version of the full complaint. According to it, Greene never raised issue with Exquemelin’s most graphic descriptions of buccaneer atrocities occurring under Morgan’s leadership, although such content would be something for which Crooke (regarding his competing edition of Exquemelin) would feel compelled to apologize.

To judge from Morgan’s later biographers, particularly those critical of Exquemelin, Greene may have raised several legitimate factual points. As neither Malthus nor his rival Crooke tried to defend himself in court, the factual basis of Exquemelin’s alleged libels was never examined, even though truth may not have been excluded as a defence in a private libel case. Presumably both printers found being accused of libelling a knight of the realm, even an aged one then out of political favor, an intimidating ordeal.

Under any circumstances, the fact remains that the controversy of 1684–1685 culminated in a legal finding that Exquemelin did indeed libel Morgan. The surviving legal document from that encounter helps mark the first steps in what has become a continuing critical appraisal of Exquemelin’s work.