The purpose of this website is to:
THE FOUNDATIONS OF MODERN ENGLISH GOVERNMENT
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[page 18] ... But it seems clear that the Tudors inherited and perpetuated a Council emancipated from aristocratic predominance. Its members were, in the main, men of the middle class, professional government servants of a type which was to become increasingly familiar i the sixteenth century. Henry VII's chief advisrs--Morton, Fox, Warden, Bray, Lovell, Poynings, Empson, Dudley -- were ecclesiastics, knights, and lawyers. The Crown had won the contest over the composition of the central organ of government. The victory was not wholly due to its own action. It was the natural result of the decline of the baronage in a world undergoing profound social and economic change. Members of the older aristocracy were seldom found at the Council board, and such peers as for the future the King chose to summon were mostly of new creation. Great ecclesiastics were still important members, but the ecclesiastical element in governmental service was already less important than in the Middle Ages, and was soon to declie still further. The composition of the Council, in short, reflected that social class which was to prove itself the most devotged and efficient support of the new dynasty. The number of councillors was fluctuating and indeterminate. But the exact size of the Council is of little importance. Persons whom the King desired to consult, or whose services he intended to use, were sworn of his Council, and assumed the duties of giving him advice and of keeping secret the deliberations in which they participated. Men might, moreover, be summoned to the Council [page 19] who had not been sworn of it. The attendance of membes was irregular. The King might summon whom he pleased, and summon them when and where he pleased.1 [n1 Pickthorn, Henry VII, 28-30. D.M. Gladish, The Tudor Privy Council, 11-13.]
The most essential, as it was certainly the most ancient, function of councillors was to give counsel to the King. It was the King who sought it, for such purposes as he wished, and it was for him to decide what action, if any, should be based on the advice which was tendered to him. During the long ascendancy of Wolsey, as later under Thomas Cromwell, the advisory functions of the Council were practically superseded by the action of a single great minister.2 [n2 Pollard, Council, Star Chamber and Privy Council under the Tudors, 37 E.H.R. 360.] It would be a misconception, however, to regard the Council as only a body of counsellors. However olarge or small may have been the number of members present at its meetings, they had something like a corporate existence, and were capable of transacting a variety of types of business. The Council did more than merely advise the King and his ministers. It had long possessed judicial powers. If on the whole its attempts to obtain an appellate jurisdiction were frustrated by Parliament and the Common Law courts, it developed an original jurisdiction which Parliament had sometimes denied and sometimes recognized.3 [n3 Holdsworth, i. 487, 490. The real objection was to the Council dealing with cases cognisable in the Common Law Courts, rather than to its acting where the Common Law provided no remedy. It had been prevented from dealing with cases involving title to freehold and with treason and felony.] It also exercised legislative functions, in the issue of ordinances and proclamations, and it constantly gave orders on matters of administrative detail. Its meetings were presided over, in the King's absence, by a Lord President of the Council, whose office cab be traced back to 1496, though the extreme informality of his appointment, by royal word of mouth alone, indicates the degree to which the Council, even in its most formal aspect, was subjected to the King's personal control.4 [n4 Baldwin, 445.] Its proceedings were recorded by a clerk, whose existence can similarly be traced in Henry VII's earliest years as king, and the continuous existence of whose office dated from 1405. It had long since acquired a headquarters, in the room styled the Star Chamber, within the Palace of Westminster.5 [n5 Baldwin, 356. Pollard, 37 E.H.R. 516-18].
[page 20] The action of the King strongly pervaded the whole existence and activity of the Council. It was his authority, rather than its own, that the Council exercised. Wherever the King was, there the Council must be. Thus there was always a Council at the Court, a Council in attendance on the King. At the same time, however, it was impossible, since the Council had so much regular business of a governmental and judicial nature, and a home of its own to trnasact it in at Westminster, for all its members to follow the King in his movements from one royal residence to another. Certain councillors were therefore taken with the King in his progresses, while others remained behind to deal with routine work. Such an arrangement was necessary with a constantly migrating Court. It can be observed in and even before the reign of Henry VII,1 [n1 Baldwin, 444.] andin 1526 Henry VIII issued a Eltham an ordinance designed to ensure the attendance on his peson of a fixed quota of councillors.2 [n2 Tanner, 220-21; Newton,
, 240-44.] It may be inferred from this ordinance that the practice was for those councillors who held offices of state to be kept in attendance on the King, both as advisers and as instruments for the fulfilment of royal commands. This subdivision of the Council was in the highest degree informal. It did not indicate any permanent cleavage of the Council into two distinct bodies. Councillors passed freely from one panel to the other. Both dealt with much the same concerns. They constantly corresponded with one another, and when the King returned to Westminster the two parts of the Council merged, and -- frequently under his own presidency -- sat in the Star Chamber, to despatch any appropriate business, not necessarily judicial in nature. Nevertheless those councillors attendant on the King naturally derived advantage from this fact, and their colleagues in Westminster very properly deferred to their instructions.3 [n3 Baldwin, 448.]
While there is no question of a formal separation between these two bodies of councillors, the practical consequence followed that those who attended the King were primarily concerned with political deliberation and with carrying out the King's instructions, whole those in the Star Chamber dealt chiefly with judicial affairs, although the Council with the King had equal judicial [page 21] power and used it. The increase in the judicial activities of the Counsel is one of the first important developments of Tudor rule. During the unquiet fifteenth century, and even earlier, the need for more effectual means of restoring order and ensuring the due performance of justice had been a perennial problem. In this respect the Common Law courts had betrayed the most serious defects, from which the jurisdiction of the Council was immune. Unlike the Common Law courts, the Council dealt with offences not in the places where they had been committed, but centrally, where the local influences which had impeded justice, overawing or corrupting juries, witnesses, parties, sheriffs, and even judges could not come into play. It dispensed with the jury. It evaded the Common Law rule against the use of torture. It collected information through its own subordinate officials, and by written depositions taken in privacy, and not through evidence given and tested in open court. It could place accused persons on oath, and lead them to incriminate themselves on their own admissions, and indeed without their being aware of the precise charges to be brought against them. The most potent procedural device employed by the Council for this purpose was the writ sent out under the Privy Seal.1 [n1 Baldwin, 289.] Issued without registration or enrolment, and thus easily kept secret, this writ had never been easy to subject to constitutional checks. The recipient was not required to meet any precisely formulated accusation, but to attend before the Council, and answer concerning certain causes there to be laid before him. Disobedience was dealt with by reinforcing the writ with a subpoena, contempt of which was punishable by imprisonment at the Council's discretion. The legality of this whole procedure was perhaps doubtful. Statutes of earlier times had forbidden the issue of writs of Privy Seal in derogation of Common Law. But it had been legalised by statute in 1453, and, although the statute had lapsed in 1460, it had nevertheless been treated during the reign of Edward IV as though it were still in force.2 [n2 Baldwin, 291; I. S. Leadam, Select Pleas in the Court of Star Chamber (Selden Society), Introduction, lx. For the writ certis de causis, see Holdsworth, History of English Law, i. 661.]
Thus armed, the Council was ready to undertake the task of repressing violent and powerful evil-doers. The law for this [page 22] purpose was sufficiently strong and needed little amplification, though in 1504 the statutes against livery and maintenance passed in the fifteenth century were supplemented by another making bonds between lords and retainers illegal.1 ]n1 Tanner, 9-12.] What was needed was not the enactment of new but the enforcement of existing law. By the punishments it could inflict, as well as by the procedure it folowed, the Council was well fitted for its task. Though medieval Parliaments had succeeded in preventing it from taking cognisance of cases involving the title to freehold, and of cases of treason and felony, so that it could not take away freehold property or inflict the death penalty, it wielded the scarcely less formidable weaons of mutilation, branding, imprisonment, and the imposition of exorbitant fines. In 1487 a statute defined its judicial function more closely.2 [n2 Tanner, 258-9. Pollard, Reign of Henry VII, i. 55-6.] Part of its jurisdiction -- in cases of livery and maintenance, riots and unlawful assemblies, bribery of jurors, abuse of power by sheriffs -- was placed in the hands of the Chancellor, Treasurer, Keeper of the Privy Seal (or any two of them), with a bishop and a temporal lord of the Council, and the Chief Justices of King's Bench and Common Pleas. The legal effect of this statute has been much debated, but it can hardly have been intended to supersede or even to limit the jurisdiction of the Council as a whole, and in the result it did not do so. The Act seems to have attempted to ensure the attendance, for the purposes it contemplated, of a prescribed panel of members, and to remove any doubt as to the legality of their proceedings, without prejudicing the powers of the Council in general to deal with these or other offences which could be brought with its competence.3 [n3 Holdsworth, i. 493-4; Baldwin, 437-42; C. L. Scofield, The Court of Star Chamber, 9ff.; Pickthorn, Henry VII, 47, 145; Pollard, 37 E.H.R. 520 ff.; C. H. Williams, The So-called Star Chamber Act, 15 Hist. 129. A similar statutory committee was established in 1495 when certain members of the Council were empowered to deal with charges of perjury and other offences and inflict punishment.4 [n4
, ii. 589.] Neither enactment abridged the judicial position of the Council or placed it on a basis limited by statute. Its jurisdiction continues to be an emanation of the Royal Prerogative, and does not become the creation of an Act of Parliament.
While the Council in Star Chamber was not a different tribunal from the Council with the King, the regularity and specialised [page 23] nature of the work done there inevitably tended to create a disjunction between two judicial aspects of the same body. In 1494 a distinction is noted between the sessions of the Council and those of the Star Chamber.1 [n1 Scofield, 27. But compare Tanner, 252.] In 1500 the Star Chamber is first referred to by name in legal proceedings.2 [n2 Polland, 37, E.H.R> 530.] In 1504 comes its first mention in a statute.3 [n3 Scofield, 27-8.] Although the Council with the King retained and exercised judicial powers, it began to some extent to differ from the Star Chamber. It did not, as the Star Chamber did, include the judges, and, unlike the Star Chamber, which came to sit publicly and only during the law terms, it sat in private and all the year round.4 n4 In this capacity, it came to be known as the Council Table. Tanner, 253.] The Star Chamber, being pre-eminently the judicial side of the Council, came to include persons whose advice on political matters the King could hardly need, but whose legal knowledge was of value. Gradually there came into existence a body of persons known as "ordinary" councillors, a term which firsts occurs under Henry VIII.5 [n5 Baldwin, 450-51.] Though not usually summoned to meetings of the Council with the King, they were nevertheless sworn of the Council. Their membership might be no more than a complimentary dignity, or a gage of fidelity and service. So far as they were efficient, they seem to have discharged services of a technical kind -- receiving petitions, conducting examinations, and carrying out similar routine duties.
The emergence of a distinction, however, imperfect, between Council and Star Chamber, is only part, though the most important part, of a great development of the structure of the Council in early Tudor times. The committees of 1487 and 1495 were constituted by statute. The same could be done by the personal authority of the King. About 1493 Henry created a committee to entertain the complaints of poor men.6 [n6 I. S. Leadam, Select Cases in the Court of Requests (Selden Society), Introduction, xi.] With such business, dealt with by a procedure analogous to but simpler and less expensive than that of the Chancellor in dealing with petitions for equitable remedy where the Common Law was defective,7 [n7 See below, 26.] the Privy Seal was already connected, and it came naturally under the care of the Keeper of the Privy Seal. Under [page 24] Henry VIII the committee, at first attendant on the King, became a permanent court, sitting in the White Hall of the Palace of Westminster, conducted by royal officials, and styled the Court of Requests. By the middle of the century professional judges known as Masters of Requests were assuming control of its business.
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[page 28] ... The "equity" dispensed by the Chancellor in civil cases might, like the "criminal equity" of the Star Chamber, be regarded as a competitor with the Common Law. ...
THE ZENITH OF THE TUDOR MONARCHY
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[page 130] Procedures developed on lines already indicated in their general form. Process, whether initiated by the Crown's attorney or by a private litigant, began with a bill setting forth complaints which brought the case within the competence of the court. The defendant was summoned by subpoena, confronted with the bill, and required to answer it. On his answer, the plaintiff might base further interrogatories. Witnesses were then examined similarly. So far the case had been conducted by officers of the court. It was now ripe for the court itself. If a defendant made an admission, even though not on oath, before an official of the court, he could be directly brought before the Star Chamber, by what was termed ore tenus procedure, to make his defence and receive its sentence. Sometimes a statutory penalty existed. In default of one, the court devised sentences of fine, damages, imprisonment, mutilation, pillory, whipping, and humiliating punishments such as riding a horse with one's fact to the tail.2 [2 Holdsworth, v. 178-84; Scofield, Star Chamber, 73-9; Tanner, 256.] ...
[page 133] Its [i.e., Common Law] doctrines regarding such offenses as conspiracy and defamation, for example, lagged behind those of the Star Chamber.2 [n2 Holdsworth, v. 203-12.] At Common Law, conspiracy was primarily an attempt against the administration of justice between party and party, and not a criminal offence. Libel was an offence against the party injured, and him only. The
punished conspiracy as criminal, and so also seditious libels against the government and libels on private persons which were likely to provoke a breach of the peace. The proceedings of the Prerogative courts, in short, were instinct with the sense that certain acts must be penalised on grounds of public policy, that the interests of the State demand their repression. The Common Law was hampered by its lack of any such strong sense. Its political tradition was the medieval conception of the supremacy of law in the State and over the State. That conception was in danger of being regarded as out of date. Medieval rules imposing restrictions on the action of the Crown seemed mere antiquated lumber to keep modern minds which exalted above all things the power of an efficient, powerful, and well-advised monarch. The Common Law might, [page 134] if these fashionable opinions triumphed, be relegated to deciding ordinary cases of crime and civil disputes where no public interest was specially involved. A distinction, already becoming evident on the Continent, might be accepted in England also, between public and private law. Were it to be worked out, the Common Law courts would be ousted from their ancient control over governmental acts. There was a real risk that the Common Law judges would surrender to the dominant current of opinion, and confine themselves to the peformance of humbler functions. It is to be remembered that they were royal officials, holding office at the Crown's good pleasure, that like other men they felt the force of the new ideas, that they were uncertain of the applicability of the constitutional theories to be inferred from the crabbed and obscure learning in which they were bred, and that the limits of their jurisdiction did not rest with themselves to fix, since the Council acted as a tribunal des conflits Their surrender might well mean the end of the principle that government, like private concerns, was subject to the Common and statute law and not a matter of arbitrary power. The notion of the sovereignty of law was ceasing to be fashionable. In the sixteenth century, that of an illimitable legislative power was coming to be axiomatic. If the Common Law courts were silenced on matters of government, and relegated to dealing with private affairs, it would be possible to assert that sovereignty lay in the Crown alone. They did not consent to this fate, nor did the Tudors seek to impose it on them. * * *
THE DECLINE AND FALL OF CONCILIAR GOVERNMENT, 1603-1660
[page 205] ... For the enforcement of the Laudian [the King's advisor] policy, the High Commission provided a convenient instrument of repression, and its efforts were seconded by the Star Chamber and by a rigid censorship over printing and publication. It is not surprising that the censorship was evaded, and that, as in the days of Marprelate, acrimonious pamphlets appeared, attacking recent innovations and the hierarchical system which made them possible. Three pamphleteers, Prynne, Bastwick and Burton, were in 1637 sentenced by the Star Chamber to pillory, mutilation, fine and life imprisonment, and John Lilburne to shipping, pillory, and imprisonment for the importation of similar works from abroad. * * * [page 214] No structural changes in government were thus far involved. But in July 1641 a statute abolished the jurisdiction of Star Chamber as unwarranted by the Act of 1487, denied the competence of the Privy Council to adjudicate on the property rights of the subject, and required the Common Law courts to pronounce within three days on the legality of commitments made by its order and challenged by habeas corpus.4 [n4 Gardiner, Documents, 179-86.] ... At last the battle of the Common Law courts against rival jurisdiction was won for them by their parliamentary ally, and governmental acts were subject to their sole jurisdiction.
* * * [page 230] CHAPTER V
THE BEGINNING OF PARLIAMENTARY MONARCHY, 1660-1714
...A proposal mooted in the Lords for the revival of Star Chamber was at once abandoned, and with the Star Chamber the Council of the North and other courts of like nature also vanished. Except for an appellate jurisdiction from courts overseas, the Council had been shorn of its judicial powers, retaining only a power of arresting and examining suspected persons, which was subject to the provision of the Act of 1641 requiring the speedy issue of a writ of habeas corpus in such cases.2 [n2 Gardiner, Documents, 185.] With the abolution of the conciliar courts, [page 232] the power of legislating by proclamation, unsupported by any coercive processes save those afforded by the Common Law, was confined within the limits imposed by the Case of Proclamations. Arbitrary rule was no longer possible to a king who could neither legislate nor tax out of Parliament, nor do justice outside the courts of Common Law and of Chancery.
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[End of quotations from THE CONSTITUTIONAL HISTORY OF MODERN BRITAIN, 1485-1951 by Sir David Lindsay Keir; bold emphasis added.]
[page 118] Its Iniquities It was in a room known as the Star Chamber that the council sat when there was justice to be done, and there, as the "Court of Star Chamber," it earned its infamy. That infamy it fairly earned under the first two Stuart kings, and no one will dispute that the Long Parliament did well in abolishing it. It had become a political court and a cruel court, a court in which divines sought to impose their dogmas and their ritual upon a recalcitrant [page 119] nation by heavy sentences; in which a king, endeavouring to rule without a Parliament, tried to give the force of statutes to his proclamations, to exact compulsory loans, to gather taxes that the Commons had denied him; a whipping, nose-slitting, ear-cropping court; a court with a grim, unseemly humour of its own, which would condemn to an exclusive diet of pork the miserable puritan who took too seriously the Mosaic prohibition of swine's flesh. And then, happily, there were doubts about its legality. The theory got about that it derived all its lawful powers from a statute passed in 1487, at the beginning of Henry VII.'s reigh, while manifestly it was exceeding those powers in all directions. We cannot now accept that theory, unless we are prepared to say that for a century and a half all the great judges, including Coke himself, had taken an active part in what they knew to be the unlawful doings of the council--the two chief justiceds had habitually sat in the Star Chamber. Still we may be glad that this theory was accepted. The court was abolished in the name of the common law.
It had not added much to our national jurisprudence. It had held itself aloof from jurisprudence; it had been a law unto itself, with hands free to invent new remedies for every new disease of the body politic. It had little regard for precedents, and, therefore, men were not at pains to collect its decisions. [page 120] It had, however, a settled course of procedure which, in its last days, was described by William Hudson in a very readable book. Its procedure, the main feature of which was the examination of the accused, perished with it. After the Civil War and the Restoration no attempt was made to revive it, but that it had been doind useful things then became evident. The old criminal law had been exceedingly defective, especially in relation to those offences which did not attain the rank of felonies. The King's Bench had, for the future, to do what the Star Chamber had done, but to do it in a more regular fashion, and not without the interposition of a jury. [Emphasis added.]
[End of quotations from A SKETCH OF ENGLISH LEGAL HISTORY, by Frederic W. Maitland and Francis C. Montague (London/New York: G. P. Putnam's Sons, 1915; bold emphasis added.]
[page 260] The Crown originally held all presses in its own hands, allowed no one to print except under special license, and kept all presses subject to regulations put forward by the Star Chamber in virtue of the royal prerogative: the exclusive privilege of printing was thus given to ninety-seven London stationers and their successors, who, as the Stationers' Company, constituted a guild with power to seize all publications issued by outsiders; the printing-presses utlimately conceded to the Universities existed only by a decree of the Star Chamber.
Side by side with the restrictions on printing -- which appear to have more or less broken down -- there grew up a system of licensing which constituted a true censorship.1 [n1 See for the control exercised over the press down to 1695, Odgers, Libel and Slander (3rd ed., 196), pp. 10-13; Holdsworth, History of English Law, vol. vi (1924), p. 360-379, and vol. x (1938), pp. 2, 29.]
Press offences constituted a special class of crimes cognisable by a special tribunal -- the Star Chamber -- which sat without a jury and administered severe punishments.2 [n2 Gardiner, History of England, vol. vii (1884), pp. 51, 130; ibid., vol. viii (1884), pp. 225, 234; Holdsworth, op. cit., vol. vi (1924), pp. 367-370. The Star Chamber indeed fell in 1641, never to be revived, but the censorship survived the Commonwealth, and was under the Restoration (1662) given a strictly legal foundation by the Licensing Act of 1662, which by subsequent enactments was kept in force till 1695.3 [n3 See Macaulay, History of England, vol. iv (1858), ch. xix, xxi.]
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[page 267] In England, on the other hand, the attempt made by the Crown during the sixteenth and seventeenth centuries to form a strong central administration, though it was for a time attended with success, because it met some of the needs of the age, was at bottom repugnant to the manners and traditions of the country; and even at a time when the people wished the Crown to be strong, they hardly liked the means by which the Crown exerted its strength.
Hundreds of Englishmen who hated toleration and cared ittle for freedom of speech, entertained a keen jealousy of arbitrary power, and a fixed determination to be ruled in accordance with the law of the land.1 [n1 See Selden's remarks on the illegality of the decrees of the Star Chamber, cited Gardiner, History of England, vol. vii (1884), p. 51.] These sentiments abolished the Chamber in 1641, and made the re-establishment of the hated Court impossible even for the frantic loyalty of 1660. But the destruction of the Star Chamber meant much more than the abolition of an unpopular tribunal; it meant the rooting up from its foundations of the whole of the administrative system which had been erected by the Tudors and extended by the Stuarts. This overthrow of a form of administration which contradicted the legal habits of Englishmen had no direct connection with any desire for the uncontrolled expression of opinion. The Parliament which would not restore the Star Chamber or the Court of High [page 268] Commission passed the Licensing Act, and this statute, which in fact establishes the censorship, was, as we have seen, continued in force for some years after the Revolution. The passing, however, of the statute, though not a triumph of toleration, was a triumph of legality. The power of licensing depended henceforward, not on any idea of inherent executive authority, but on the statute law. The right of licensing was left in the hands of the government, but this power was regulated by the words of a statute; and, what was of more consequence, breaches of the Act could be punished only by proceedings in the ordinary courts. The fall of the Star Chamber deprived the executive of the means for exercising arbitrary power.1 [n1 But the Council after the Restoration exercised considerable administrative power and in it are to be found the beginnings of the modern Government Departments. -- Ed.] [Emphasis added.]
[End of quotations from INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION, by A. V. Dicey (London: MacMillan and Co., 1939, 9th Ed., 1st Ed. 1885); bold emphasis added.]
[page 86-87] ... it is clear that, though the Council professed to desire to uphold the law in ordinary cases,1 [n1 Dasent xxx 697-- a case more fit for ordinary law sent to be heard by the two Chief Justices.] it would, if necessary, make the ordinary law yield to what it considered to be state necessity.2
[n2 Ibid xxxii 100--the city of London had made certain rules for the company of carmen, the validity of which had been questioned by the company in the King's Bench. The King's Bench decided against their validity, and the City appealed to the Council; the Council said that it would hear what the Chief Justice of the King's Bench had to say because "it is convenient that wee mayntaine and hould as good agrement and correspondence as wee may betwixt our proceedinges in matters of State and the practize of the Lawe;" but in the end (p. 421) the validity of the rules was affirmed.]
Thus, we find it laid down in the Star Chamber that, "exorbitante offences are not subjecte to an ordinayre course of law;"3 [n3 Hawarde, Les Reports etc. 292.] and that in case of necessity no precedent is needed as, "they can make an order according to the necessity and nature of the thinge itself."4 [n4 Ibid 144.] A striking instance of the application of these principles is a case in which the Council directed a gaoler to disobey a writ of habeas corpus, and to make a return that the commitment was by the queen's special command.5
[n5 Dasent xxiii 330; cf. ibid 95, 159 -- in that case the cause assigned was, "the speciall service of her Majestie and the State," a ground admitted by the judges in 1591 to be a good cause for refusing to release a prisoner, vol. i 509; Hallam, C.H. i 234-236; Prothero, Documents, 446; vol. v App. I.; vol. vi c. 6.]
It is clear that the ideas which underlie these activities lead directly to the growth of a system of administrative law, and that in all questions of doubtful jurisdiction the Council was claiming to exercise the powers of a tribunal des conflits. It is equally clear that the powers thus assumed were gradually undermining the legal securities for the liberty of the subject. Those who were bold enough to complain or criticize soon found themselves committed to prison for an indefinite period;6
[n6 See the case of Sir John Smythe who had made speeches "pretendinge that by the lawes of the realme no subject ought to be commanded to goe out of the realme in her Majestie's service," Dasent xxv 459, 460, 475, 501 (1596); he was still under surveillance in 1600, ibid xxx 177, 249.]
and they were lucky if they escaped with an abject apology and a recantation of their political errors.7
[n7 Robert Tailboys was committed to prison because he took upon him to "examyne the lawfull aucthorite of leavying of money for her Majesty's service," Dasent xxvi 138 (1596), but was released later in the year on making humble submission, ibid 318, 319; cf. ibid xxviii 400 (1598), a rebuke to Sir John Savile and the other justices of the West Riding for delays in collecting shipmoney, and for calling its legality in question; for an earlier case of 1595-1596 in which Savile supported unsuccessfully the Yorkshire justices against the Council of the North see Reid, King's Council in the North 336-339.]
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[page 102] "When the common state or wealth of the people require it," it was said in the Star Chamber, "the king's proclamation bindes as a lawe and neede not staye a Parliamente."1 [n1 Hawarde, Les Reportes etc. 328, 329.]
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[page 273] ... The practice of making a preliminary examination of accused persons became usual; and torture was used to discover facts whenever the Council deemed it necessary. ... [page 274] It is obvious that it leads directly to the growth of a system of administrative law; and it is equally obvious that if it had prevailed the common law would have ceased to be the law of the constitution.
[End of quotations from HOLDSWORTH'S HISTORY OF ENGLISH LAW - VOLUME FOUR - THE COMMON LAW AND ITS RIVALS (Boston: Little, Brown & Co., 1924)); bold emphasis added.]
[page 163-164] ... The law applied was based upon the common law;7
[n7 See pp. 24-25 -- rules are laid down by the Chief Justices as to bail and arrest; 27 -- a plea to the jurisdiction is referred to the Chief Justices; 63 -- a case is referred to the common law; 128-129 -- counsel is rebuked for citing common law cases which do not apply; 154 -- a case is remitted to a trial at common law; 261 -- legal argument as to the power of the crown to grant the forfeiture of penal laws; 325 -- a lecture on serving process by the Lord Chief Justice.]
but the procedure of the court enabled it to disregard many of those technical common law rules which rendered the administration of the criminal law ineffective.1
[n1 On occasion they would disregard even their own rules of practice; thus at p. 149 the Lord Keeper said they could make an order "Even if it be not the course of the court; for in such great cases, in which was a great mischief, and it was so necessary for the public good, a precedent was not necessary to direct them, but they could make an order according to the necessity and nature of the thing itself"; cf. p. 103, where they dealt with a case of riot because the country would not find it; at p. 292 the Lord Chancellor says, "exorbitante offences are not subjecte to an ordinarye course of lawe."]
The judges of the court did not hesitate to develop and expand the principles of the criminal law in a way in which no common law judge would have dared to attempt.2
[n2 Illustrations may be seen in the way in which they dealt with officials who had misbehaved or neglected their duties, vol. iv 77-80; or with informations for the breach of proclamations, pp. 79, 318, 319, 328; or with such offences as riot, conspiracy, libel, and various forms of fraud, below 197-213.]
* * * [page 165] He [historian Leadam] entirely supresses the fact that it used torture to extort confessions and information.8 [n8 Below 185-187.] ... [page 166] ... men generally ... were beginning to regard it as a court which attempted to maintain royal absolutism, and to overthrow the constitution, by the cruelty of the punishments which it inflicted upon its political opponents.
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[page 184] ... the extreme harshness of this procedure was largely due to the fact that the extraordinary procedure had gradually become the ordinary procedure; and that familiarity with and acquiescence in the harshness of its methods had made it possible to increase progressively that harshness.7 [n7 Above 173-175.]
We have seen that Hudson admits the existence of this extraordinary procedure, but that he deprecates its use in any but extraordinary cases.8 [n8 Above 165.] But from other sources we can see that it was used, and that it reproduced two of the most dangerous features of the continental procedure. In the first place torture was freely used, to extort either a confession, or the disclosure of further information. In the second place the court considered [page 185] that it was free to disregard not only the ordinary rules of procedure, but also the ordinary rules of law.
(i) That torture was used all through this period is conclusively proved by the Acts of the Privy Council.1
[n1 See e.g. Nicolas vii xlvi-xlviii; Dasent iv 171, 201, 284; v 235; xiii 37, 399, 401; for a case on the Pipe Roll of 24 Hy. II where the king gave a license to torture see Pike, Hist. of Crime i 427.]
Jardine, in his "Reading on the use of Torture in the criminal law of England" gives numerous illustrations which show that, down to 1640, it was used, not only in the case of persons charged with offences against the safety of the stte, but also in the case of persons charged with serious crimes having no reference to safety of the stte; and it was used, not only to extort confessions, but also to obtain a disclosure of accomplices.2 [n2 Jardine, Use of Torture App.] But it is also clear from the works of Fortescue,3 [n3 De Laudibus c. 27.] Smith,4
[n4 De Republica Anglorum, Bk. ii c. 24 -- "Torment or question which is used by the order of the civill lawe and custome of other countreis to put a malefactor to excessive paine, to make him confesse of himselfe, or of his felowes or complices, is not used in England, it is taken for servile."]
[n5 Third Instit. 35 -- "There is no law to warrant tortures in this land, nor can they be justified by any prescription, being so lately brought in."]
and from the resolution of the judges in Felton's Case,6
[n6 Rushworth, Pt. I. vol. i 650-651 -- all the judges agreed that Felton could not be tortured by the rack, "for no such punishment is known or allowed by our law."]
that the use of torture was wholly contrary to the common law. As Esmein has said, "torture is out of place in a purely accusatory procedure and in a free country;"7 [n7 History of Continental Criminal Procedure 107.] and, as we have seen, the criminal procedure of the common law was essentially accusatory, while England was universally regarded as a "dominium politice et regale." Further, all these writers, though they say it is unknown to the common law, knew that it existed, and in some cases assisted in its application. * * *
* * * [page 187] On the other hand, the continental rules of proof were not so strictly applied here as on the continent; and that led to a capriciousness in the use of torture which Selden notes as peculiar to the English practice.1
[n1 "The rack is used nowhere as in England. In other countries 'tis used in judicatue, when there is a semi-plena probatio, a half proof against a man; then to see if they can make it full, they rack him if he will not confess. But here in England they take a man and rack him I do not know why or when; not in time of judicatue but when somebody bids," Table Talk (Ed. Reynolds) pp. 184, 185.]
(ii) The same extraordinary power which could order the use of torture could equally dispense with the ordinary rules of procedure and the ordinary rules of law. * * * Hudson himself tell us that, in a case which affected the state, the Lord Chancellor had imprisoned certain witnesses who refused to give evidence, though he had himself admitted that this would not be done in ordinary cases;7 [n7 Hudson, op. cit. 209.] and it is quite clear that the accused was not allowed to refuse to answer by involving the privilege against self-crimination, which he possessed in ordinary cases.8 [n8 Above 182.]
[End of quotations from HOLDSWORTH'S HISTORY OF ENGLISH LAW - VOLUME FIVE - THE COMMON LAW AND ITS RIVALS (Boston: Little, Brown & Co., 1927); bold emphasis added.]
The Court of Star Chamber, or Star Chamber, was an equity court for criminal justice in which the King and his/her advisors or Council had control of the court to such extent that the judges of the court did not have to follow any rules, and did whatever they wanted (or whatever the King or Council wanted).
The judges were particularly harsh against political enemies of the King, and in offenses against the state the judges frequently used torture, mutilation, excessive fines and long punishments against the defendants.
The Council and Star Chamber were predecessors to our administrative agencies.
The prosecutors of today are a reincarnation of the Star Chamber with the primary plea-inducing technique of extortion (the threat of a long period of incarceration) if the defendant does not plead guilty and accept a sentence of about 1/5th the number of years otherwise being faced by the defendant if he should lose at trial). By reason of this administrative resolution of 95-98% of all criminal matters in federal court today, the safeguards of defense counsel, judge and jury are no longer available and the modern version of the Star Chamber has taken over as the prevailing criminal court in the United States.