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, 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. 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. In other words defamatory words will be treated rather as a tort than a crime. It is clear 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, 3 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. 2 But get a dictum that the Star Chamber never gave damages.1 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.3 (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 a 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 9 8 1"This Courte never gyves any damage, but onelye Costes," Les Reportes del Cases 247. Vol. iv. 480-482. 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. 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 111. 9 At pp. 47, 48. 2 conveyances.1 In 1628 the Star Chamber declared, "that if any man do make conveyances of his land, or acknowledge Statutes or Recognizances or suffer judgments, whether the same be upon just and good considerations or without, and concealing the same do afterwards for valuable considerations convey the same lands to other persons, as though the same were free from any manner of incumbrance; such double and unjust dealing is a notorious fraud and deceit against the law of the realm, and fit for the censure of this court; and albeit such former conveyances and incumbrances, if they be upon good consideration and bona fide, cannot be avoided; yet this court will upon complaint punish the offenders and their confederates by imprisonment, fine and damages to the party grieved, to the full of his loss and hinderances, and otherwise, as the cause shall require." Similarly the Council interfered in cases in which contracts had been induced by fraud; and the Star Chamber punished manufacturers who deceived the public by their methods of manufacture. We shall see that in the exercise of this branch of jurisdiction both the Council and the Star Chamber were seconded by the equitable jurisdiction of the Chancellor. All these courts by their example helped to induce the common lawyers to develop the common law remedies for fraud, and ultimately to produce some changes in the principles of civil liability." (g) Acts contrary to public policy. We have seen that the Star Chamber possessed an indefinite power to suppress "errors creeping into the Commonwealth, which otherwise might prove dangerous and infectious diseases. . . although no positive law or continued custom of common law giveth warrant to it." Just as the king through the Council had an indefinite power by proclamation or otherwise to make rules or forbid acts which he deemed to be contrary to public policy, so the Star Chamber assumed an indefinite power to punish the breach of these rules or the doing of these acts. I have already said something of the manner in which it interfered as between landlord and copyholder 1 Dasent xiv 29 (1585-1586), 313, 330, 347 (1586-1587); xxii 414 (1592). 2 Titoe v. Newdike (1628) Rushworth, Pt. II. vol. ii App. 9. 3 Dasent xx 100, 101 (1590)-a jeweller had sold goods worth £20 for £185; cp. ibid xxii 116 (1591)-fraud practised on a youthful surety. 4 Case of the Hatband makers (1632), Cases in the Star Chamber (C.S.) 115116-they had made their hat-bands of copper and other base metals, and sold them for good silver and gold bands; "and because fraude is a common hurt to the weale publique and that, in all manufactures, from the great commodity cloath to the meanest, fraud is too much used, tendinge to the distruction of the whole trade of the kingdome, for example sake it was ordered that this Decree should be carefullie drawen up, and to be read at the next generall meetinge of the Liveries of every Companie in London, and the Guyldhall.' Below 292, 328-329. 7 Hudson, op. cit. 107; vol. i 504. 6 Pt. II. c. 5 § 6. 8 Vol. iv 99-104, 296-297; below 433. to secure the copyholder against oppression. Its interferences (as between employer and workman, its regulation of the course of trade, and its control of all courts and bodies and persons exercising governmental functions, rested upon the same principle of paramount public policy. Further, it even assumed a power to deal with cases already dealt with by other courts. "In a word, there is no offence punishable by any law, but if the court find it to grow in the Commonwealth, this court may lawfully punish it, except only where life is questioned." " A large discretionary power of this kind could be exercised with general applause when the peace and security of the state were in danger. Lambard says, "Is it not meet and just, that when the wicked sort of men have excogitated anything with great labour of wit and cunning, so as it may seeme they have drawne a quintessence of mischief, and set the same abroach to the remedilesse hurt of the good and quiet subject; Is it not meet and just (I say) that authority it selfe also . . . should straine the line of justice beyond the ordinary length and wonted measure, and thereby to take exquisite avengement upon them for it? Yea is it not right necessary that the most godly, honourable, wise, and learned persons of the land should be appealed unto, that they may apply new remedies for these new diseases?" But such a power was certain to arouse unpopularity when, the peace and security of the state having been assured, men began to question the meetness and justness of its exercise; and when the court replied to these questionings by asserting a larger measure of the power which was questioned. The most important work of the Star Chamber was the exercise of this criminal or quasi-criminal jurisdiction. It is its work in this direction which has had a permanent influence upon the development of the English law of crime and tort. But all through this period both the Council and the Star Chamber interfered in civil cases. In fact, just as the court of Chancery only gradually ceased to exercise a semi-criminal jurisdiction, ancillary to its general equitable jurisdiction, so the Council and Star Chamber only gradually ceased to exercise a general civil jurisdiction ancillary to their criminal jurisdiction. But it was only in so far as the work of the Council and Star Chamber in this direction was adopted by the Chancellor, and became part of the system of equity administered by him, that it has had a permanent influence upon the development of English law. Therefore its history naturally falls to be related under that head. 1 Vol. iii 210-211. 2 Vol. iv. 380-381, 385-386. 3 Ibid 335-338. 6 Ibid 117-118. II THE EQUITABLE JURISDICTION OF THE CHANCELLOR Continuity is the characteristic feature of the history of the common law. An absence of continuity is the characteristic feature of the early history of equity. No doubt the root idea of equity, the idea that law should be administered fairly and that hard cases should so far as possible be avoided, is common to many systems of law at all stages of their development;1 and this root idea came very naturally to the mediaeval mind, which regarded the establishment of justice, through or even in spite of the law, as the ideal to be aimed at by all rulers and princes.2 In England the mediaval history of the application of this ideal to the law passed through two distinct stages. There is the stage in which it was applied in and through the common law courts, and there is the stage in which it was applied in and through the Council and the chancellor. The first stage ended, as we have seen,3 in the course of the first half of the fourteenth century. In the latter half of the fourteenth and in the fifteenth centuries the common law tended to become a fixed and a rigid system. It tended to be less closely connected with the king, and therefore less connected with, and sometimes even opposed to, the exercise of that royal discretion which was at the base of the equitable modification of the law.* Equity therefore came to be exercised by the chancellor and Council who were in close touch with the king, because through them the king exercised his executive and extraordinary judicial power. This second stage in the history of Equity differs in three important respects from the preceding stage. In the first place, its growth was caused, and its development was largely conditioned, by the rigidity which had naturally become a marked characteristic of the common law, when it ceased to develop those equitable principles and ideas which it possessed at an earlier period. The defective state of the common law, both substantive and adjective, and the disturbed state of the country, which not only rendered its cumbersome procedure useless but even enabled litigants to abuse it to promote injustice, gave rise to a need for the growth of a set of equitable principles outside of and even opposed to the common law. In the second place, being thus developed outside 1Cp. Pollock, The Transformation of Equity, Essays in Legal History (1913), 287-289. 2 Vol. ii 131-132. Ibid 346; vol, i 210-211. 3 Ibid 344-345. Ibid 405-406; vol. ii 414-416. |