As we stated previously, the Speech, as an organ, is given absolute protection in the Laws of Aethrlbirht, the first King of the English to receive baptism. In the days of Augustine, Aethelbirht decreed, in his laws that
If the speech be injured, XII shillings. (Laws of Aethelbirht, s. 52)
Further on, in the same collection of laws, we find that
If the belly be wounded, let ‘bot’ be made with XII shillings. (ibid., s. 61)
In this law, therefore, we find that an injury to the speech is taken to be equivalent to a serious wounding of the belly. And further on,
If a thigh be broken, let ‘bot’ be made with XII shillings. (ibid, s. 65)
Clearly, the protection afforded to the speech against ‘injury’, and note the use of the word ‘injury’, not ‘wound’ nor ‘break’ but ‘injury’, is absolute, and certainly fixed as of the date of the making of these laws. The speech may be injured in any number of ways, and, indeed, any attempt to restrict it in a manner more burdensome than that on the date of this law of Aethelbirht constitutes the injury, an injury on par in severity of punishment with those of breaking someone’s thigh or wounding someone’s stomach. There is in this law no mention of feelings or dignity. In fact, in reading this statute, feelings and dignity are later inventions that have given a pseudolegal justification to the destruction of our ancient customary protection of the speech.
The speech may be injured by what I will call the ablative injury. The ablative injury is when the speech organ itself is physically worn down, and, in an extended sense, if it is mutilated or otherwise rendered materially inoperative. This sort of injury may be macroscopic, to the speech itself, or microscopic, to the nervous system and tissues which control the voluntary operation of the speech. For when the law protects the speech from injury, in contemplation it must also protect all of the parts of the body which drive the speech, including the nerves, brain and other tissues required for their support, like the heart, lungs and liver.
The ablative injury to speech may also be accomplished via agreement, as, for example, if, as a condition of employment, I agree to not say the phrase “snow is white.” This would be interpreted as a voluntary injury to speech, in both the sense that I would be deprived of speaking, but, more importantly, I would be deprived of my power of speaking truly, as snow is white. It is questionable whether one may consent to being injured.
Thus we see that the ablative injury is constituted whenever an inhibition is put upon an individual, unless sanctioned by right, that is, by law. The However, statutes must be construed according to prior enactments, if they speak to a topic. As stated above, any injury to the speech is an injury on a par with a broken leg or a wounded stomach. These are not trifles, as, for example,
For every nail, a shilling (ibid, s. 55)
And so any statute that would, but for the statute require conduct that injures the speech must be read as requiring a restraining of bodily liberty, and infringing the liberty interest, a restriction that is grave and perilous. The clear reason for Aethelbirht’s discussion of the value of various injuries is to establish a framework of just compensation for injuries to the body parts mentioned in the laws. In this sense, it sets the penalty for various criminal injuries that would be acknowledge to exist by custom. Thus there is a good argument that any attempt to injure speech is in fact a breach of the criminal law, much as it would be a breach of the criminal law to injure someone’s thigh bone or stomach.
We must read Aethelbirht’s law not as creating these injuries, but as fixing the penalties for acts that, by their inclusion in his laws, must be taken to have been considered unlawful and criminal by custom. Certainly this is not a list of mere civil actions, we are dealing with woundings which, prior to the advent of antibiotics and blood transfusions, were often fatal. Certainly a broken thigh could be fatal, as the femoral artery runs through it. We must therefore, in determining the relative weight of injuries, remember that any restriction on speech is a corporal restraint and is in fact an injury on par with a broken leg.
It therefore is untenable to give much weight to the psuedolegal claims of injury that are brought before many administrative and corporate tribunals, concerning “dignity”, “feelings”, “emotions” and other pseudolegal concepts that we do not find mentioned in our ancient law. Certainly, it is difficult to fathom that the injury of one’s speech is at all proportional to hurt feelings—it is a punishment as violent and damaging as breaking of the thigh. And we must point out that all such restrictions, but for pseudolegal justifications supporting clearly unconstitutional statutes, would be clear injuries and violations of our ancient laws.