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the king or queen and punishable under special statutes relating thereto,1 its criminal aspect was wholly neglected by the common law. This large gap in the criminal law was filled, and on the whole adequately filled, by the Star Chamber.

The Star Chamber.-From the first the Council and the Star Chamber recognized that, in the interests of the peace and security of the state, a strict control must be maintained over the printing, publication, and importation of books. It followed from this that the Star Chamber, from an early date, assumed jurisdiction over all cases in which its rules as to the manner of publishing, and as to the matter published were infringed.3 In some cases, indeed, its jurisdiction was strengthened by statute. I have already mentioned the statutes which dealt with libels against the king or queen, and with the publication of false and fantastical prophecies. But the jurisdiction of the Star Chamber did not depend upon these statutes. The court had assumed the power to deal with defamation in general on the ground that it disturbed the security or the peace of the state; and it is clear from Hudson's treatise, and from Coke's summary in the case De Libellis Famosis, that it had adopted and acted upon some of the principles of Roman Law."

As Coke pointed out in the case De Libellis Famosis the defamation with which the court dealt fell into two classes. It might be either of a magistrate or other public person, or it might be of a private person.

The first class of libels might be, and at this period generally were, directly dangerous to the security of the state. They incited to sedition. Thus we find a very large number of cases against persons who had traduced magistrates of all kinds, whether or not in relation to their judicial or their administrative work, and whether or not their offences could be classed as scandalum

Cromwell's Case 4 Co. Rep. at p. 14a. But the line between the special justification successfully pleaded in Cromwell's Case, which really amounted to the plea that the words were not defamatory, and a plea of justification in the ordinary sense, was not very clearly expressed, and perhaps caused Hudson, op. cit. 104, to adopt the mistaken view that truth was a defence to such an action.

1 Vol. iv 511-512.

2 Ibid 305-306; for the regulations of the Star Chamber and the later licensing Acts see vol. vi c. 7.

Nicolas vii xxxi seqq.; Dasent i 120 (1543)-booksellers to return lists of books bought and sold within the last two years; ii 311, 312 (1549)-as to the recognizances to be given by printers; xiii 350, 399, 400 (1581-1582)-enquiry as to libels published in the University of Oxford, and the punishment of the offenders; xxiv 200, 222 (1593)—authorities of the City of London to enquire into libels upon foreign artificers; suspected persons ordered to be tortured to disclose accomplices. 4 Vol. iv 511, 512. 5 Les Reportes del Cases 39.

6 Dig. 47.10 de injuriis et famosis libellis; see especially Dig. 47.10.5. 9-10, and 47.10.6.

7 (1606) 5 Co. Rep. 125a.

magnatum.1 "Let all men," it was said in the Star Chamber, "take heede how they complayne in wordes against any magistrate, for they are gods." 2 In fact all libels of this kind were regarded as a "scandal of the government;""for what greater scandal of government can there be than to have corrupt or wicked magistrates to be appointed and constituted by the king to govern his subjects under him." 3 Thus it was laid down that

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any private delivery or writing of a libel is a great offence: yea, to see, hear it, or report it." 4 It was therefore "a perylouse thinge to keepe a lybelle especiallye yf it touche the state;" and, "if it be a magistrate or a publicke offycer to whome the same is delyvered, he oughte to examyne the matter and (if it be in his power) to punishe the same: otherwyse wth all possible speed to acquaynte the lordes of the kinges Councell wth all, and not to conceale the same, or to doe nothinge aboute the same. It is clear that these doctrines very materially contributed to the safety of the state in the troublous times of the sixteenth century. But it is equally clear that when, in the seventeenth century, the nation was divided into the two hostile parties of those who favoured the prerogative and those who favoured the Parliament, and when these doctrines were applied by the court of Star Chamber to uphold the prerogative, their rigid application did more than anything else to substitute, for the reverence felt for the court in the Tudor period, those feelings of fear and hatred, which led to its abolition when Parliament got the victory in 1641.

The second class of libels-libels against private persons-was punished on the ground that they tended to provoke breaches of the peace. "For although the libel be made against one, yet it incites all those of the same family, kindred, or society to revenge, and so tends per consequens to quarrels and breach of the peace, and may be the cause of shedding of blood." Indeed it was

1 Hudson, op. cit. 101-102; Nicolas vii 306 (1542)—groundless accusation against the President and Council of Wales; South v. Ward (1631) Rushworth, Pt. II. vol. ii App. 31—slandering a Justice of the Peace; Atty.-Gen. v. Jones, ibid-libelling a master in Chancery; Atty.-Gen. v. Fowlis (1634), ibid 65, 66—slandering Lord Wentworth and the Council of the North; Smith v. Crokew and Wright (1632) Cases in the Star Chamber (C.S.) 38-40-writing and publishing a libel on a plaintiff in Chancery and on the court of Chancery.

2 Les Reportes del Cases 176-177.
Les Reportes del Cases 225.
5 Ibid 372-373;

35 Co. Rep. at f. 125a.

if one finds a libel (and would keep himself out of danger), if it be composed against a private man, the finder either may burn it, or presently deliver it to a magistrate; but if it concerns a magistrate or other public person, the finder ought presently to deliver it to a magistrate, to the intent that by examination and industry, the author may be found out and punished," De Libellis Famosis, 4 Co. Rep. at f. 125b; Richardson C.J. laid down a similar rule in 1632, Cases in the Star Chamber (C.S.) at pp. 151-152.

"De Libellis Famosis, 5 Co. Rep. at f. 125a; in 1607 it was resolved in the case of Edwards v. Wooton by the judges and the court of Star Chamber that, "yf a VOL. V.-14

clearly necessary for the Star Chamber thus to punish libels against private persons, if it was to succeed in its attempt to put down duelling.1 Unless some sort of adequate redress was provided for provocative insults, its ordinances against duelling were bound to be a dead letter.

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It followed from the view which the Star Chamber entertained of the nature of the offence of libel that it differed very considerably from the nature of the offence which was redressible by a common law action for damages. In the first place truth was no defence. "In a settled state of Government the party grieved ought to complain for every injury done him in an ordinary course of law, and not by any means to revenge himself, either by the odious course of libelling or otherwise." 2 Further, the fact that it was true might make it more likely to result in a breach of the peace-"for as the woman said she would never grieve to have been told of her red nose if she had not one indeed." In the second place, the fact that it was not published was no defence.1 Hudson tells us that the " precedents are infinite" for punishing those who have sent scurrilous letters to other persons. And it should be noted that the writer and contriver, and, if it was published, the publisher could be punished. What amounted to publication was perhaps not quite clear at this period. Coke and Hudson lay down the law in different ways; but Coke's view that there must be some active repetition to others, and that merely hearing it or copying it without divulging it to others, is not publication, has prevailed." man will wryte a pryvate letter defamatorye and not otheryse publishe yt eyther before or after the wrytinge, he shall not have an action of the case; but forasmuche as the same dothe provoke malice and breache of the peace and revenge yt shalbe punished in this Courte, and nippe it dum seges in herba; for being a letter onelye kepte cloase yt gyuethe no cause of accion because he hathe no dammages. And this beinge an offence that dothe provoke revenge, bringe daunger to the state and common weale et interest reipublicæ, and therefore an offence in this Cowrte to be severelye punished," Les Reportes del Cases 344; S.C. 12 Co. Rep. 35.

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1 Above 200-201; Hudson, op. cit. 103; Bacon's argument in the case of Priest and Wright, Spedding, Letters and Life of Bacon iv 406; Carr, L.Q.R. xviii 391; cp. Bl. Comm. iv 150.

2 De Libellis Famosis (1606), 5 Co. Rep. at f. 125b; Hudson, op. cit. 102-103. 3 Ibid 103. 4 Edwards v. Wooton, 12 Co. Rep. 35; above 209 n. 6.

5 Hudson, op. cit. 101. 6 Lamb's case (1611) 9 Co. Rep. 59b. "It was resolved, that everyone who shall be convicted in the said case, either ought to be a contriver of the libel, or a procurer of the contriving of it, or a malicious publisher of it, knowing it to be a libel.'

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7 Coke said in Lamb's case, "If one reads a libel that is no publication of it, or if he hears it read it is no publication of it, for before he reads or hears it, he cannot know it to be a libel; or if he hears or reads it, and laughs at it, it is no publication of it; but if after he has read or heard it, he repeats it or any part of it in the hearing of others, or after that he knows it to be a libel, he reads it to others, that it is an unlawful publication of it; or if he writes a copy of it, and does not publish it to others, it is no publication of the libel. .. But it is great evidence that he published it, when he, knowing it to be a libel, writes a coyy of it; on the other hand Hudson, op. cit. 102, said "To hear it sung or read, and to laugh at it, and to make merriment with it, hath ever been held a publication in law."

In the third place the fact that the person libelled was dead was no bar to a prosecution. "A libelle," it was said by Coke in the court of Star Chamber,1 is a breach of the peace, and is not to be suffered but punished-this is as poison in the Commonwealth, and no difference of the deade or lyvinge: and th' offence to the state dyes not."

In one respect the different views which the Star Chamber and the common law courts took of this offence led them to a similar result. In the Star Chamber, as in the common law courts, spoken words seem to have been treated in the same way as written words. Coke, it is true, in the case De Libellis Famosis, seems to lay it down that the libel, if not in writing, must be contained in either pictures or signs, i.e. either by painting, or by fixing a gallows or other ignominious signs at a person's door. But he does not say that it could not be contained in words; and it is clear from other cases that the Star Chamber punished defamatory words no less than defamatory writings.2 Coke is silent as to the treatment by the Star Chamber of defamatory words. But Hudson draws a distinction, which, as we shall see, may have had some importance in the making of our modern law. If, he says, the defamation is written, the manner of defaming is in itself an offence and punishable. If, on the other hand, it is spoken it may be justified by proving that it is true.3 In other words defamatory words will be treated rather as tort than a crime. that this is not quite consistent with the practice of the court in punishing spoken words as a crime; but probably Hudson was thinking of defamatory words which were not seditious; and, if so, it is possible that Hudson's distinction is one of the roots of the modern distinction between libel and slander. And, though the law as stated by Hudson is somewhat inconsistent, he `may have represented truly enough an inconsistency in the practice of the court. If the court had been quite logical it would have treated defamation as a crime merely, and left a person who wanted damages to his action at common law. Indeed we do

1 Les Reportes del Cases 226.

It is clear

2" A libell may be in word as well as in writing," per Richardson C.J., Dalton v. Heydon and others (1632) Cases in the Star Chamber (C.S.) 71; Hudson, op. cit. 102; Atty.-Gen. v. Chambers (1630) Rushworth, Pt. II. vol. ii App. 21; Atty.Gen. v. Ewer (1632) ibid 36.

3 Op. cit. 104-" And I desire to observe one difference, which standeth with the rules of law and reason, which, under favour, I have ever conceived to be just, that upon the speaking of words, although they be against a great person, the defendant may justify them as true. But if he put the scandal in writing, it is then past any justification, for then the manner is examinable and not the matter; "this would hardly, as the illustration shows, apply to seditious words; in later law such words were and are criminal, Pt. II. c. 5 § 2. 4 ibid.

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get a dictum that the Star Chamber never gave damages.1 But it is quite clear that in cases of defamation the court did give damages to the plaintiff, both in cases of defamation and other cases, as well as punishing the defendant. We shall see that these inconsistencies in the practice of the Star Chamber, and the fact that the common law courts, in the latter part of the seventeenth century, constructed our modern law on the basis, both of the common law action on the case and of the doctrines laid down in the Star Chamber, go far to explain its illogical and inconvenient form at the present day."

(f) Fraud.

One of the most salutary kinds of jurisdiction exercised by the Council and Star Chamber was that exercised in all cases of fraud. We have already seen that the Star Chamber set an example to the common law courts in the application and interpretation of the statutes of 1571 and 1584-1585, which were passed to prevent frauds upon creditors and purchasers. We shall see also that both Council and Star Chamber took a great part in the administration of the earlier bankruptcy legislation which is closely connected with these statutes. 5 But, beyond this, both exercised a general jurisdiction in all cases of fraud. Thus we get number of cases in which they interfered to prevent a fraudulent use of the technical proceedings of the common law courts. Hudson thought that the Star Chamber could cause a judgment to be vacated if fraud were proved. And it is clear, both from his book and from Hawarde's reports, that the court was specially ready to interfere where advantage had been taken of youthful inexperience. Then, too, there are a number of cases in which both Council and Star Chamber interfered to check frauds in connection with

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"This Courte never gyves any damage, but onelye Costes," Les Reportes del Cases 247.

2 In Frize v. Bennet (1627) Rushworth, Pt. II. ii vol. ii App. 6, it is expressly stated that the Court, though it fined the defendant, would give no damages to the plaintiff, because he himself repeated the libel, and was not of a good character; Thelwel v. Holman (1628) ibid 12-13-£500 damages given; Atty.-Gen. v. Ewer (1632) ibid 36; Falkland v. Mountmorris (1632) Cases in the Star Chamber (C.S.) 1-37. 3 Pt. II. c. 5 § 2. 4 Vol. iv. 480-482. 5 Pt. II. c. 4 I. § 6. Les Reportes del Cases 59, 60, 70; Dasent xv 47, 84-85, 195 (1587); Sheldon v. Sheldon (1635) Rushworth, Pt. II. vol. ii App. 71; vol. i 505. Op. cit. 99.

8 Ibid 99; "the inveigling of young gentlemen, and entangling of them in contracts of marriage to their utter ruin," ibid 110; "If subtle merchants or tradesmen will draw young gentlemen under age before a judge, or any other which hath power to take a fine or recognizance, knowing him to be under age, he shall be grievously fined. . . . Yea the drawing of young gentlemen into security for commodities of tobacco and phillizellas, and such unnecessary stuffs, which they are compelled forthwith to sell away to brokers at half the value is usually fined," ibid III.

9 At pp. 47, 48.

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