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apply to criminal prosecutions.1 On the other hand it was held both at common law and in the Star Chamber that a mere agreement to maintain was punishable, and a fortiori if it was further agreed to divide the profits.2

The other offences mentioned in the statute-" the preparing, labouring, and soliciting of jurors," and "the buying of pretensed titles," were dealt with both by the common law and the Star Chamber; and it cannot be doubted that the success of the Star Chamber in preventing the corruption or intimidation of jurors has had a good deal to do with the efficiency of the jury in our modern law. Here, as in other cases, it brought a mediæval institution up to the standard of efficiency demanded by the more exacting requirements of a modern state.1 If the fining and imprisoning of jurors for returning verdicts which, in the opinion of Star Chamber, were wrong or foolish, has given that court a bad name in our constitutional history, let us in fairness remember that the control over juries, which it exercised in other directions, helped to restore to the jury its independence, and to make it a competent judge upon matters of fact. 5

Both in the case of maintenance, and in the case of offences committed by or against jurors, the action of the Star Chamber really marks the transition between the medieval and the modern law. We shall now see that it clearly marks the same transition in the case of an offence which was in the Middle Ages generally regarded merely as an offence against the administration of justice the offence of Conspiracy.

(d) Conspiracy.

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Stephen remarks that "conspiracy has much analogy to an attempt to commit a crime.” 7 And we shall see that this analogy at this period comes out clearly enough in the manner in which it was treated by the court of Star Chamber. But we have seen that, historically, conspiracy is more closely connected with offences against the administration of justice; and that it was almost exclusively from this point of view that it was treated by the medieval common law.9 The modern law on this subject really springs from these two diverse yet connected roots-Hudson could class together conspiracy and false

1 Winfield, Present Law of Abuse of Legal Procedure 5-6.

2 Hudson, op. cit. 91, citing 30 Ass. pl. 15.

Hudson, op. cit. 91-93; Reportes del Cases 96, 243. 4 Vol. iv 105-106, 163, 214.

5 Vol. i 343 344.

* On the whole subject see Winfield, Hist. of Conspiracy; cp. J. W. Bryan, The Development of the English Law of Conspiracy (Johns Hopkins University Studies).

7 Stephen, H.C.L. ii 227.

8 Below 204.

9 Vol. iii 401-407.

accusation.1 But, when he was writing, this classification was ceasing to have the meaning which it once possessed, because conspiracies which had no reference to false accusations were being punished by the Star Chamber.

The Star Chamber assumed jurisdiction over all cases of conspiracy. Though Coke once maintained that a person acquitted on a criminal indictment must proceed, not by bill in the Star Chamber, but by the criminal procedure of the common law, Lord Ellesmere maintained that in this case, as in all others, the Star Chamber had jurisdiction; and his view prevailed. Moreover the Star Chamber punished false and malicious accusations made before itself, or before the court of Chancery; and it punished criminally conspiracies which would only have been the ground for an action upon the case at common law. Further, it adopted the common law rule applicable to actions on the case for conspiracy, and punished a single accuser who had falsely and maliciously taken such proceedings."

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But it is clear that under these circumstances the element of conspiracy will tend to evaporate. The gist of the offence will be rather the malicious attempt to ruin another by a false charge than the conspiracy to effect this result. It was inevitable therefore, as Stephen has said, that conspiracy should come to be regarded as a form of attempt to commit a wrong. It was so regarded in the sentence given in the Star Chamber against those who attempted to fight duels; and in the Poulterers' Case it was ruled in the Star Chamber that the mere conspiracy, though nothing was executed, was an offence.10 But, if a conspiracy is

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1 Op. cit. 104.

2 Hudson, op. cit. 104; but the Star Chamber to a certain extent followed the law; thus if a man were indicted, no bill for conspiracy lay there before the indictment was traversed or otherwise avoided (1557) Gouldesborough 51 pl. 14; and if a man were convicted no bill lay there, Floyd v. Barker (1608) 12 Co. Rep. 23.

3 Hudson, op. cit. 104-107; Miller v. Reignolds and Bassett (1614) Godbolt 205; Taylor v. Tolwyn (1629) Rushworth, Pt. II. vol. ii. App. 17; Stace v. Walker (1634) ibid 59.

The Poulterers' Case (1611) 9 Co. Rep. at f. 57a; Amerideth's Case (1600) Moore K.B. 562 pl. 764, and Lord Gray's Case (1607) ibid 788 pl. 1088-both cases of a combination of copy-holders to prove that their lands were freehold or inheritable copyhold; Hersey's Case 12 Co. Rep. 103; Beverley v. Power, Rushworth op. cit. 2; Nicolas vii 77, 78, 101, 102; Dasent x 262; xi 348; xii 94, 95.

5 Scrogs v. Peck and Gray (1600) Moore K.B. 562 pl. 765.

6 Miller v. Reignolds and Basset (1614) Godbolt 205; Tailor and Towlin's Case (1629) ibid 444; Anthony Ashley's Case (1612) 12 Co. Rep. 90, 92; for the scope of the action on the case in the medieval common law see vol. iii. 405-407.

7 Hudson, op. cit. 106.

8 H.C.L. ii 227.

9 Above 200, 201.

10 (1611) 9 Co. Rep. at f. 56b-"And it is true that a writ of conspiracy lies not, unless the party is indicted, and legitimo modo acquietatus, for so are the words of the writ; but that a false conspiracy betwixt divers persons shall be punished, although nothing be put in execution, is full and manifest in our books; Hudson, op. cit. 105; Coke cites for this Fitz. Ab. Briefe pl. 926—Bellewe f. 80, cited vol. iii 406; for

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so regarded, why restrict it to conspiracies to commit some offence in relation to legal proceedings? The Star Chamber acted upon this view; and just as it punished all kinds of attempts to commit wrongful acts,1 so, a fortiori, it punished all kinds of conspiracies to commit the many varied offences punishable either by it or by the common law courts.2 When the Star Chamber was abolished, the two divergent streams of doctrine which resulted from the mediæval precedents and the rules evolved in the Star Chamber, produced some very complex developments in the law of crime and tort.3

(e) Libel and Slander.

The modern law of defamation, like the modern law of conspiracy, has originated in two sets of doctrines originating in the common law courts and in the Star Chamber respectively. As in the case of conspiracy, I shall here only indicate briefly the nature of these two sets of doctrine. The manner in which, after the Restoration, they were combined by the judges of the common law courts, and transformed into our modern law, I shall relate in the second Part of this Book.*

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The common law.—It was during this period that the common law definitely assumed jurisdiction over defamation by allowing a person who had been thus damaged to bring an action on the case. But the ecclesiastical courts still continued to exercise a concurrent jurisdiction, if the scandal imputed was a matter which fell solely within their jurisdiction." During this period a certain number of cases were brought before them;7 and such cases occurred as late as the last decade of the

the development of the law as to the need for acquittal as a condition of taking criminal proceedings for conspiracy see Winfield, Present Law of Abuse of Legal Procedure 160-165.

1 Above 201.

2 Coke affirmed that such conspiracies were punished both at common law and before the Star Chamber-"the usual commission of oyer and terminer gives power to the commissioners to enquire etc de omnibus coadunationibus, confœderationibus, et falsis alligantiis . . . in these cases, before the unlawful act executed, the law punishes the coadunation, confederacy or false alliance, to the end to prevent the unlawful act. And in these cases the common law is a law of mercy, for it pre vents the malignant from doing mischief, and the innocent from suffering it," 9 Co. Rep. at f. 56b; cp. S.C. Moore K.B. 813; and the same thing was laid down in the King's Bench in Bagg's Case (1616) 11 Co. Rep. at f. 98b; we have seen that Coke had some little authority for this view, vol. iii 406, and the tendency of the development of the action on the case was obviously in this direction; see Pt. II. c. 5 § 3 for the development of this principle by the common law courts.

3 Ibid.

4 Ibid § 2.

5 For the earlier history see vol. iii 409-411.

Ibid 411 n. 2; Eaton v. Ayloff (1629) Cro. Car. 111; Cucko v. Starre (1632) ibid 285; Osborne v. Poole (1698) 1 Ld. Raym. 236; Johnson v. Bewick (1702) ibid 711.

7 For illustrations taken from Hale's Precedents of cases in the Ecclesiastical Courts see Carr, The English Law of Defamation, L.Q. R. xviii 270-272.

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eighteenth century. But Coke had laid it down that if the secular courts gave a remedy for any wrong, the jurisdiction of the ecclesiastical courts was thereby ousted, unless it was expressly saved; and the principle was applied to actions for defamation in Palmer v. Thorpe. No doubt the recognition of this principle was hastened by the fact that the ecclesiastical courts could not give damages. At any rate it is clear that the jurisdiction of the ecclesiastical courts, even in this period, was fast coming to be limited to cases in which the defamation consisted of an imputation of some offence punishable in those courts. The complete recognition of this principle, coupled with the abolition of the ex officio oath, caused the jurisdiction of the ecclesiastical courts over defamation to become almost negligible. But, as we have seen, it was not finally abolished till 1855.8

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Throughout this period the popularity of the common law remedy was growing. Coke complained of the frequency of these actions; and we shall see that, at the end of the period, a small book was devoted to summarizing the results of the cases. With the characteristics of the law made by these cases I must deal later.11 Here I need only draw attention to its most salient characteristic, and the consequences flowing therefrom.

The common law conceived of defamation simply as a civil wrong causing damage to the person defamed. Damage was the gist of the action. However insulting the words, no action lay unless the court could see that damage must ensue as a natural and probable result of the words spoken; 12 and the fact that the court, from its desire to discourage these actions, scrutinized the words and reasoned from them in the same way as they scrutinized and reasoned from the words of a writ or a pleading often produced some very absurd results.13 From this conception of

1 Crompton v. Butler (1790) 1 Hagg 460; Smith v. Watkins (1792) ibid 467. 2 Co. Litt. 96b, cited vol. i 621.

3 (1583) 4 Co. Rep. 20a—“If defamation touches or concerns anything determinable at the common law, the Ecclesiastical judge shall not have cognisance of it."

4" Although such defamation is merely spiritual, and only spiritual; yet he who is defamed cannot sue there for amends or damages, but the suit ought to be only for the punishment of the sin, pro salute animæ,” ibid.

5 Carr, loc. cit. 270-272; only one case is cited at p. 271, in which the words complained of imputed an offence punishable by the common law.

6 Ibid 269, 270; vol. i 610-611.

8 18, 19 Victoria c. 41; vol. i 620.

7 Carr, loc. cit. 272.

9" We will not give more favour unto actions upon the case for words than of necessity we ought to do where the words are not apparently scandalous, these actions being now too frequent," per Coke C.J. Crofts v. Brown (1617) 3 Buls. 167; cp. Stanhope and Blith's Case (1585) 4 Co. Rep. 15a, where Wray C.J. said that, "the judges had resolved that actions for scandals should not be maintained by any strained construction or argument, nor any favour given to support them, forasmuch as in these days they more abound than in times past.'

10 Below 393.

12 Ibid.

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11 Pt. II. c. 5 § 2.
13 Ibid.

the gist of the action three consequences followed. In the first place publication to some third person was essential, because otherwise no damage could have ensued;1 and truth was a defence, because a person ought not to be allowed to receive compensation for damage caused to a character which he did not possess.2 In the second place, being a personal action for a tort, it died with the person. In the third place, the common law courts did not at this period recognize any difference between spoken and written defamation. It is true that the majority of cases were cases of spoken defamation; and the action is often called an action on the case for words. But we do get occasionally actions for written defamation, which are obviously treated by the court in exactly the same way as actions for words.4

Now it is clear that this treatment of the subject of defamation is wholly inadequate. It regards it simply from the point of view of the damage suffered by the injured person. But it is quite clear that defamation has also a bearing both upon the security, and upon the peace of the state. By a seditious libel upon the rulers of the state the security of the state-especially in a period of great political and religious change-may easily be imperilled. By a libel upon a private individual—especially if he be powerful and influential-the maintenance of the peace is even now endangered, and, in the sixteenth century, was very gravely imperilled. It is true that the legislation had shown some perception of these facts when they passed the statutes which created the offence of scandalum magnatum.5 The offence was both of a civil and of a criminal character-the proceedings were taken by the prosecutor "tam pro Rege quam pro seipso." But

we have seen that these statutes were very seldom enforced ;7 and, as was not uncommon with these offences created by mediæval statutes, their civil tended to become more prominent than their criminal aspect. The result was that, unless defamation was of

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1 Broughton's Case (1583) Moore K.B. at p. 142 per Walmsley J.; Edwards v. Wooton (1607) 12 Co. Rep. 35; Barrow v. Lewellin (1616) Hob. 62-"All actions of that kind [actions on the case] do suppose in auditu quamplurimorum propalavit etc."; below 210.

2 Lord Cromwell's Case (1578-1581) 4 Co. Rep. 12b, 13b, 14a; below 210, 211-212. 3 Vol. iii 576-579; below 211; cp. Hudson, op. cit. 103.

See Broughton's Case (1583) Moore K.B. 141; cp. Buckley v. Wood (1592) 4 Co. Rep. 14b-that was a case of written defamation which was held not to be actionable; but clearly the court did not consider that the fact that it was written made any difference to the principles applicable; cp. Veeder, The History of Defamation, Essays, A.A.L.H. iii 458; Carr, English Law of Defamation L.Q.R. xviii 394. 5 Vol. iii 409-410.

6 Cromwell's Case (1578-1581) 4 Co. Rep. 12b.

7 Vol. iii 409.

8 Thus all the damages went to the injured party, Throgmorton v. Church (1720) I P. Wms. at p. 690; and, though the defendant could not justify because it was a qui tam action, Earl of Shrewsbury v. Sir Th. Stanhope (1595) Poph. at p. 69, he could explain the words in order to show that they were not defamatory, ibid;

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