Constitutional History of England, Henry VII to George II. Volume 2 of 3Hallam, Henry
History
Constitutional History of England, Henry VII to George II. Volume 2 of 3
Hallam, Henry
Constitutional history -- Great Britain
The offences principally cognisable in this court were forgery,
perjury, riot, maintenance, fraud, libel, and conspiracy.[58] But
besides these, every misdemeanour came within the proper scope of its
enquiry; those especially of public importance, and for which the law,
as then understood, had provided no sufficient punishment. For the
judges interpreted the law in early times with too great narrowness
and timidity; defects which, on the one hand, raised up the
over-ruling authority of the court of chancery, as the necessary means
of redress to the civil suitor who found the gates of justice barred
against him by technical pedantry; and on the other, brought this
usurpation and tyranny of the star-chamber upon the kingdom by an
absurd scrupulosity about punishing manifest offences against the
public good. Thus corruption, breach of trust, and malfeasance in
public affairs, or attempts to commit felony, seem to have been
reckoned not indictable at common law, and came in consequence under
the cognisance of the star-chamber.[59] In other cases its
jurisdiction was merely concurrent; but the greater certainty of
conviction, and the greater severity of punishment, rendered it
incomparably more formidable than the ordinary benches of justice. The
law of libel grew up in this unwholesome atmosphere, and was moulded
by the plastic hands of successive judges and attorneys-general.
Prosecutions of this kind, according to Hudson, began to be more
frequent from the last years of Elizabeth, when Coke was
attorney-general; and it is easy to conjecture what kind of
interpretation they received. To hear a libel sung or read, says that
writer, and to laugh at it, and make merriment with it, has ever been
held a publication in law. The gross error that it is not a libel if
it be true, has long since, he adds, been exploded out of this
court.[60]
Among the exertions of authority practised in the star-chamber which
no positive law could be brought to warrant, he enumerates
"punishments of breach of proclamations before they have the strength
of an act of parliament; which this court hath stretched as far as
ever any act of parliament did. As in the 41st of Elizabeth, builders
of houses in London were sentenced, and their houses ordered to be
pulled down, and the materials to be distributed to the benefit of the
parish where the building was; which disposition of the goods soundeth
as a great extremity, and beyond the warrant of our laws; and yet,
surely, very necessary, if anything would deter men from that horrible
mischief of increasing that head which is swoln to a great hugeness
already."[61]
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