particular cases; and, even when a particular statute was applicable, the Star Chamber could often deal with the offence more effectually than the common law courts. A large number of such cases therefore came before it; and we can see that its treatment of them was giving rise to some of the principles of our modern law. Thus we get the principle that there must be at least three persons present to constitute these offences.2 We get almost the modern definitions of these offences stated both by Hudson and Coke; and it is reasonably clear from the definitions given by Hudson, and from the fact that Coke can cite no authorities from the Year Books, that these definitions originated with the Star Chamber. Hudson says of a riot, "it is called a riot when three or above assemble themselves together to do an unlawful thing and do it ;" of a rout that it is "when they only assemble themselves together to do an unlawful thing and do it not; " of an unlawful assembly that it is "when two or more assemble themselves together to do some unlawful thing.' From the point of view of our modern law these definitions are too wide. But Hudson probably meant in each case to say that the unlawful act in question must be an act of violent wrongdoing, as the section in which he thus defines them deals wholly with this kind of wrongdoing. If this view as to his meaning be accepted, his definitions agree in substance with those given by Coke, and with our modern law." It is true that his definition of a rout is loosely worded; but it would seem, from the explanation which he gives a little later,7 that, here again, he intended to lay down much the same rule as Coke, who defined it, in substance, as an assembly which does any act towards the carrying out of their purpose of committing


1 For some specimen cases see Select Cases in the Star Chamber (S.S.) i 237253 (1507); Reportes del Cases 103, 139, 140; Balfield v. Poppleton and others (1625) Rushworth, Pt. II. vol. ii App. I.; in any selection of cases those in which some sort of riotous conduct is alleged are much the most common.

2 Hudson, op. cit. 82; Coke, Third Instit. c. 79; Les Reportes del Cases 157. 3 Hudson, op. cit. 82; Coke, Third Instit. c. 79. 4 Op. cit. 82. 5 Riot, "in the common law signifieth, when three or more do any unlawful act, as to beat any man, or to hunt in his park chase or warren, or to enter or take possession of another man's land, or to cut or destroy his corn grass or other profit "all the illustrations are of forcible wrongdoing, though the fact that the wrongdoing must be forcible is not specifically stated; Rout "signifieth when three or more do any unlawful act for their own or the common quarrel, as when commoners break down hedges or pales"; "An unlawful assembly is when three or more assemble themselves together to commit a riot or rout and do it not," Coke, Third Instit. c. 79.

Kenny, Criminal Law, 280-284.

7" For routs, they are for the most part dangerous, for that they arise upon public grievances, as inclosing of commons, making of May games, as it was in the Earl of Lincoln's case. And I have heard Henry Earl of Lincoln in a private discourse say, that the Earl of Essex's insurrection in London was but a rout, but he dared not but find it treason. But by the statute of 7 R. II. c. 8 they were declared traitors; it should be 5 Richard II. st. 1. c. 6, vol. ii. 450 n. 2.

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some crime by force. His description of unlawful assembly would seem to include both the elements of purpose to commit forcible crime, and terror thereby caused to peaceable persons;1 and, according to the best opinion, these are the two essential elements of this offence in our modern law.*

Of the other offences enumerated by Hudson some were sufficiently dealt with by the common law; and the influence of the Star Chamber was directed to the enforcement of the existing law, rather than to the creation of any new rules. Instances of offences of this kind are forcible entry, forcible taking of goods, and aggravated assaults. Also, like other courts, it dealt severely with those who assaulted its members or those practising before it. 4 The only other form of violent wrongdoing in which it made a considerable addition to the law was in respect of the law as to duelling.5

To substitute the rule of law for the rule of force is the first object of the law. "Revenge," " as Coke said, "belongeth unto the magistrate." But, down almost to our own times, the law did not succeed completely in suppressing this particular manifestation of the rule of force. A false sentiment of honour prevented a recourse to law, and was supposed both to justify and to necessitate a recourse to arms. And, as this sentiment was prevalent chiefly among the governing classes, upon whose sense of honour the government largely relied, it is not surprising that the law was unable to suppress this particular result of a perverted sense of honour. It has not been and cannot be suppressed till the sentiment of honour upon which it was based is recognized to be false.


The attitude of the common law was from the first quite clear. Unless the duel was fought in hot blood on a sudden falling out, the man who killed his opponent was guilty of murder; and his second, and probably the second of the murdered man, were accessories before the fact. If a third person intervened to stop the fight and was killed by the combatants, both were guilty of murder.10 If two persons fought, and neither was killed, both

1" And it seemeth by Keble 3 H. 7 that an assembly of men is not punishable, if nothing be done, unless the assembly be in terrorem populi," Hudson, op. cit. 85 ; the reference is to Y.B. 3 Hy. VII. Hil. pl. I, but the dictum is the court's not Keble's.

2 Kenny, op. cit. 281.

3 Hudson, op. cit. 85-87, 88.

4 Ibid 88.

5 Ibid 87-88; on the whole subject see Stephen, H.C.L. iii 99-102.

6 Third Instit. 157.

7 R. v. Taverner (1617) 3 Buls. at p. 171 per Coke C.J.; Hale, P.C. i 453.

8 Third Instit. 157-158; R. v. Taverner (1617) 3 Buls. 171; Stephen, H.C.L. iii 100-101.

9 Hale, P.C. i 443, 453; Stephen, H.C.L. iii 101-102.

10 Fitz. Ab. Corone pl. 262 (22 Ed. III.)-" Deux fueront arraines de mort d'un A, et trouve fuit que ils fueront a travers et debate, et l'un voile quarelle parcusse l'auter



were guilty of an affray,1 a minor offence with which the court leet could deal,2 If either or both were wounded, either or both were guilty both of an affray and of an assault and battery. But the common law was defective in that it did not penalize the preparations for a duel-the giving or receiving or returning of a challenge, the arranging of the place and time, departing for the place at which it was arranged that the duel should take place. If a sheriff or officer did not stop an affray he might be held liable but that was the utmost extent to which the common law went. What was wanted was a law which would enable the authorities to nip the preparations in the bud, and not oblige them to wait till a crime had been committed. And the number of duels which were fought at this period made a remedy very necessary.5 This necessary remedy was applied by royal proclamation, and enforced by the Star Chamber. It punished all preparations for duels by fine and imprisonment-"all the middle acts and proceedings which tend to the duel"; and it based its interference on sound principles of public policy. "Those insolent persons," said Hobart C.J. in the Star Chamber, "take upon them to frame a law and commonwealth to themselves, as if they had power to cast off the yoke of obedience to peace and justice. And therefore they enact among themselves as an undoubted position, that a man wronged may with his sword in his hand. require satisfaction of any man, being no Privy Councillor, and with a mild word to qualifie the detestation of this kind of murther, they have made it a familiar phrase, that he was killed fairly, and he was killed in equal fight; which arrogancy and rebellion must be subdued by this Court, censuring the best. And by judges and jurors, who must not give way to this impious distinction of fair and foul killing, but must execute the law with severity upon all murtherers; for the law knows no such distinction." Possibly the practice of duelling might have been suppressed sooner if the


ove son cotel, et l'auter luy en meme la maniere, et cesty A vient parenter eux par eux departir, et parenter eux il fuit occise per que ils fueront ambideux pend par ce que chacun d'eux fuit en volonte d'avoir occiser auter; issint ne fuit dit per infortuniam."

Third Instit. 158.

2 Y.BB. 4 Hy. VI. Hil. pl. 2; 8 Ed. IV. Pasch. pl. 17. Stephen, H.C.L. iii 100.

Third Instit. 158.

5 Spedding, Letters and Life of Bacon iv 396, citing a letter of Chamberlain of

Sept. 9, 1613.

6 Tudor and Stuart Proclamations nos. 1134, 1142, 1143, 1184, 1636.

7 Hudson, op. cit. 87; see Spedding, op. cit. iv 399-409, for Bacon's speech in the case of Priest and Wright; and ibid 409-416, for the decree of the Star Chamber made in that case, which was ordered to be read at the Assizes.

8 Spedding, op. cit. iv 403: see Atty.-Gen. v. Kelly (1632) Cases in the Star Chamber and High Commission (C.S.) 112-115-an information against Kelly ore tenus for sending a challenge.

9 Lord Darcy of the North v. Gervase Markham (1616) Hob. at p. 121.

Star Chamber had continued to exercise this jurisdiction upon these principles.1

(b) Attempts to commit crimes.

It is clear that by thus dealing with duels the Star Chamber was acting on the principle that an attempt to commit a crime is a substantive offence. The court, in the case of Priest and Wright, agreed with Bacon's argument, and rested its judgment upon the general principle that, "Wheresoever an offence is capital or matter of felony if it be acted and performed, then the conspiracy, combination, or practice tending to the same offence, is punishable as a high misdemeanour, although they never were performed. And therefore that practice to impoison though it took no effect, and the like, have been punished in this court." 2 Further, the court said, it appeared from Garnon's case that "a crime of a much inferior nature, the suborning and preparing of witnesses, though they never were deposed, or deposed nothing material, was censured in court."3 Hudson cites one or two cases in which the court acted upon this principle.*

It cannot be doubted that this doctrine effected a great improvement in the criminal law. We have seen that, at one time, the want of any such doctrine had led some of the judges to lay down the very much wider rule that the mere intent was punishable, though the act was not accomplished. But we have seen that, except in the case of treason, this doctrine did not prevail. The result was that unless an attempt was itself a specific crime, e.g. an assault, it was not punishable at all. The doctrine of the court of Star Chamber was so obviously necessary to any reasonable system of criminal law that it was adopted by the common law courts."


(c) Maintenance and other offences against the administration of justice.

We have seen that in the Middle Ages maintenance and champerty were crimes which endangered the peace of the state, and that in consequence almost any interference in a lawsuit rendered the party so interfering liable to the penalties for maintenance.8 In Henry VII.'s reign maintenance is given

1 For proclamations against the practice in the latter part of the seventeenth century see Tudor and Stuart Proclamations nos. 3245, 3710; and for a bill of 1668, which proposed to penalize heavily preparations for duels, and to give the earl Marshal and his deputies jurisdiction over the quarrels which gave rise to duels, see Hist. MSS. Com. 8th Rep. App. Pt. I. 122, no. 168; vol. i 579.

2 Spedding, Letters and Life of Bacon iv 412.

3 Ibid.

4 Op. cit. 108.

6 Stephen, H.C.L. ii 223-224.

8 Vol. i 335; vol. ii 459; vol. iii 394-400.

5 Vol. iii 373 and n. 4.

7 Ibid.

the first place in that list of crimes which the statute Pro Camera Stellata1 was passed to suppress. This statute, and the vigorous administration of Henry VII. and his son, effectually stopped the kind of maintenance which endangered the peace of the state; and as Stephen points out, this fact is clearly shown by the later statute of 1540.3 "The whole turn of the statute shows that the type of the crime had changed. Instead of references to conspirators, liveries, and badges, and other forcible perversions or open defiances of the law, the statute deals with the importance of 'true and indifferent trials of such titles and issues as been to be tried according to the laws of this realm.' This object is greatly hindered by 'maintenance, embracery, champerty, subornation of witnesses, sinister labour, buying of titles and pretensed rights of persons not being in possession.' . . . Provisions are there made against buying 'pretensed rights or titles.' The old conflict between the law and those who wish to break it by open force is at an end, and fraud, perjury, and chicanery have taken the place of violence."

This change in social and political conditions naturally affected the nature of the offence. We shall see that it was coming to be recognized that a debtor could assign money owed to him to a creditor; and the exception, which had from the first been allowed in favour of attorneys and counsel," was being somewhat more widely construed." We can see too from Hudson's treatment of the subject that there was a tendency to expand somewhat the scope of the recognized defences in proceedings for maintenance-common interest,' charity, relationship," the prosecution of causes on behalf of the king." In fact, the establishment of the last named of these defences seems to be the origin of the modern rule that the doctrine of maintenance does not

1 3 Henry VII. c. I.



2 H.C.L. iii 239.

3 For this statute see vol. iv 518, 521; for two typical cases see Atty.-Gen. v. Caston (1633) Rushworth, Pt. II. vol. ii App. 44, 45; Dymock v. Chambers and Dee (1633) ibid 46, 47.

4 Reportes del Cases 300-331; Pt. II. c. 2 § 3.

5 Vol. ii 313, 491.

6 Reportes del Cases 331-it was ruled that they could not disburse money for their clients; but that a man could write to an attorney to instruct or retain counsel, or to take out process; this was said to be, “so common and necessary for the poore of the Cuntrye," that "though an offence this Courte will not sentence it."

7 Hudson, op. cit. 90-91, citing Y.B. 15 Hy. VII. Hil. pl. 3; ibid. 95-a defendant may maintain the suit of his co-defendant; cp. Amerideths Case (1600) Moore K.B. 562 pl. 764.

8 Hudson, op. cit. 90.

9 Ibid go-though how far this defence extended was perhaps a little uncertain. 10 Ibid 89-90-"It is lawful for any man to disburse money in the prosecution of any cause for the king, as an indictment or any information in the exchequer or Star Chamber on the king's part . . . and therefore the maintaining of suits in the Star Chamber mentioned in the statute of 32 Hy. VIII. are to be understood of the defendant's part."

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