But beside the multiplication of crimes of religion and constructive treasons, another great class of crimes was created, or very largely developed, by decisions of the Star Chamber; decisions afterward accepted by the court of King's Bench as forming part of the common law of England.' "Perjury, forgery, gross public acts of indecency, conspiracies to commit crimes, or indeed to do anything unlawful," and, to some extent, political libels were thus made crimes. Only by very slow degrees was perjury in all its forms made criminal by the court of Star Chamber. The first statute inposing a temporal penalty for this offence was not passed till 1540.3 As for attempts at crime, hitherto unpunished by the laws, excepting very rarely "under the name of assaults or the like," Hudson writes, in his Treatise on the Court of Star Chamber: "It is the great and high jurisdiction of this court, that it punisheth errors creeping into the commonwealth, which otherwise might prove dangerous and infectious diseases-yea, although no positive law or continued custom of common law giveth warrant to it." As examples Hudson mentions," attempts to coin money, to commit burglary, or poison, or murder." s As late as 1573 there was no legal punishment for even the most desperate attempts at murder."

Howard, Duke of Norfolk, (1571), State Trials, i, 95, 97-8; John Felton, ibid., i, 1086; Queen Mary of Scotland, ibid., i, 1161 (1586); Earl of Northumberland, ibid., i, 1112 (1585); Earl of Arundel, ibid., i, 1250 (1589); Sir Christopher Blunt and five others, ibid., i, 1410 (1600); Dr. Wm. Parry, ibid., i, 1096 (1584); Thomas and Christopher Norton, ibid., i, 1083 (1570); and very many others tried and executed with great cruelty, ibid., i, 1158-78, etc.

*(32 Hen. VIII., c. 9, § 3); and see Stephen, iii, 244 and 247; and (5 Eliz., c. 9.)

'Stephen, ii, 223.

attempt by Frizier attempt of the two

Hudson, p. 107-8. Instances of such crimes are the against Baptista Baseman, in 5 Elizabeth (1563), and that brothers who were whipped and gazed in Fleet street, in 44 Elizabeth (1602). Stephen, iii, 110-111.

210

Prosecutions for Libel

Thus we can see how busy was the court of Star Chamber in creating new crimes (and necessarily also criminals), in a direction which has since become generally recognized as a proper and necessary field for social punishment. In our own age "all attempts whatever to commit indictable offences are misdemeanors, unless by some special statutory enactment they are subject to special punishment.”1

Libels attracted but little attention till the days of Elizabeth, when the court of Star Chamber was at the height of its power. The great intellectual movement of the age, and especially the invention of the printing press, gave a greatly increased importance to political writings, and thus increased social intelligence led to the development (the necessary development) of new crimes. Prosecutions for libel in the court of Star Chamber included: "Libels against the king's person and nobles," and "scandalous letters." The trades of printing and bookselling were closely regulated by ordinances of the Star Chamber (1585).3 Most men were forbidden to print at all, under penalty of a year's imprisonment; and even the the selling of books, printed contrary to ordinance, was punished by three months in gaol. It was a crime to publish or even to possess any book or pamphlet in favor of the Romish faith.5

From very early times some forgeries were penal offences

1 Stephen, ii, 224.

Peter Breveston. Sir Wm. Hale's case against Ellis. Notable cases are: Stubbs (1579), who lost his right hand for the publication of his "Gaping Gulf;" and Udall, convicted for writing a book against the queen (1589); see also case of Penry. Some libels were very possibly punished as treasons in earlier times. See Stephen ii, 302.

See also (1 Ric. III, c. 9); and (25 Hen. VIII., c. 15). The punishments were fines, to crown and party suing.

Hallam, i, 239.

'Strype's Grindal, p. 124; and Appendix, p. 43. Also a proclamation dated February, 1589.

at common law, but they were punished, if at all, as torts, by damages paid to the individual injured.' Early in the history of the Star Chamber, we find many forgeries of all kinds punished not as torts, but as crimes against the state," although it was not till 1562 that the important statute (5 Eliz. c. 14) was directed "against the forging of evidences (false deeds) and writings." This act recites the great evils resulting from the "small, mild and easy" punishments hitherto inflicted, and decrees very heavy damages, mutilation and perpetual imprisonment, for any person who forges "any false deed, charter or writing sealed, court-roll or the will of any person or persons in writing," or "who shall give in evidence any such charter, deed or writing, knowing the same to be false or forged." An act of Queen Mary's reign3 (1553) made treasonable the counterfeiting of foreign coin passing current in England by the queen's consent, and also the forgery or counterfeiting of the queen's sign manual, privy signet, or privy seal. Many other statutes from time to time created new coinage offences, and decreed penalties for some as treasons and others as felonies or misdemeanors.4

In 1530 poisoning was made high treason. The first statute punishing fraudulent bankruptcy was passed in 1542 and was followed by another in 1570.5 The creation of this new crime was made socially necessary by the extension of the credit system (due to the growth of trade), which opened a new field for dishonesty; but the penalties decreed were at first very light. On the other hand, unfortunate debtors were treated almost like criminals; but they cannot

1By (1 Hen. V, c. 3), 1413, a fine to the king was added. Forgery of certain seals was high treason.

212

Malicious Injuries to Property

be classed with criminals, for imprisonment was inflicted only at the suit of the injured creditor, and not by the state directly.

In 1545, the statute 37 Henry VIII. c. 6 created many new crimes under the class " malicious injuries to property." The preamble to this law of Henry VIII. is interesting, for it shows that the legislators thought malicious injuries to property something entirely new in the land. It reads: "Whereas divers malicious and envious persons . . . have of late invented and practised a new and damnable kind of vice." Of course the social evil in such practices was just becoming apparent, and the result was the creation of some new crimes; but very little attention was paid to such offences until the reign of George I.'

"

Very severe statutes against vagrants, "sturdy rogues and vagabonds were enacted at frequent intervals throughout the Tudor period, and many of these "poor Toms" were whipped at the cart tail through the streets, stocked, branded or imprisoned; but vagrants were so numerous that probably thousands of them continued their wanderings without ever hearing unfavorably from the laws against them.2 Harsh game laws continued to make hunting a monopoly of the wealthy land owners.3 There were laws against usury, but they were utterly ineffective, and at last interest up to 10 per cent. was legally distinguished from usury, in 1545.* The last general statute decreeing punishment against regrators and forestallers was 5 and 6 Edw. VI., C. 14, passed in 1552. Prosecutions for these offences lasted even into the nineteenth century, but the mischievous laws were very com

1 (43 Eliz., c. 7), 1601; and Stephen, iii, 188.

2 Traill, iii, 241-3, 250–2, 356, 360.

3

(11 Hen. VII., c. 17), 1494, and other statutes.

(3 Henry VII. c. c. 5 and 6) and (37 Henry VIII. c. 9).

monly not enforced. Many sumptuary laws were placed upon the statute books during Tudor reigns, but they were ineffectual.2 Multitudinous acts for the proper care of highways appear from the time of Henry VIII., but the laws were not well enforced.3 Forcible entry, or the taking possession of lands and property by force, was very common, and certainly not a crime in Tudor times and the centuries immediately preceding. The king's own actions often clearly countenanced such conduct in his followers. Yet there were many statutes against the offence, which was generally considered as a tort, with double or treble damages to the plaintiff, if he could collect them. Piracy was very far from being a crime in the Elizabethan age, despite 28 Hen. VIII. c. 15. High-born gentlemen regarded it as an honorable profession, and a sure road to fame and fortune. Government encouraged these sea rovers, and the English nation applauded. The African slave trade was started about 1562 by Sir John Hawkins, and excited no moral abhorrence. Even Queen Elizabeth shared in the profits of Hawkins' second voyage, and the Guinea or African Company was incorporated to carry on the business." Not until modern times has growing social morality and intelligence made such acts highly criminal.

Benefit of Clergy.-Early in this chapter it was made clear that the greatest need of England at the beginning of the Tudor period was the restoration of order, by the sure and

1(5 and 6 Edw. VI., c. 14), recites that former statutes "have been found de ficient." And see Stephen, iii., 201.

'(1 Hen. VIII., c. 14), and many later acts; and Traill, iii, 388.

See (5 Eliz., c. 13, § 1), which relates the "inefficiency" of the statutes. There were four other highway acts during this single reign.

♦ (8 Hen. VI., c. 9); (4 Hen. IV., c. 4); also laws of Ric. II., Henry VIII., Eliz. and Jas. I. See Pike's History of Crime in England, for abundant evidence relating to forcible entry.

'Traill, iii, 473-5, 539-40.

• Ibid., iii, 541.