way in which some of these rules grew up in the Star Chamber during this period is necessary, if we would understand the developments in the criminal law and the law of tort which, as we shall see, took place after the Restoration. In considering this subject I shall deal in the first place with the procedure of the Star Chamber, and in the second place with certain of the substantive rules of law which it enforced. (i) The Influence upon English Law of the Procedure of the Star Chamber. In many different countries in Europe it was upon the law of procedure that the influence of the civil and canon law had been most strongly felt. The old procedure of the Germanic tribes, who had overrun the Roman Empire, was too rigid in its forms to admit of the expansion rendered necessary by the growth of the modern state; and its oral character made it difficult for litigants to state accurately the issues of the more complicated cases which arose as civilization advanced.1 It was marked by defects very similar to those which marked the Legis Actio procedure of the old jus civile; and just as the Prætor Urbanus and the legislature found a remedy in an adaptation to the uses of citizens of that formulary system which the Prætor Peregrinus had devised for aliens, so the courts and legislatures of the European nations found a remedy in the adaptation of the new written procedure which the civilians and canonists were creating on the basis of the procedure in force in the latest period of the Roman Empire. Thoughout the Middle Ages this process had been going on. In many countries and in many different ways and degrees the influence of this new procedure had made itself felt. In England it can, as we have seen, be traced in Glanvil and Bracton's books; 2 and at a later period it was the model upon which the procedure of the court of Admiralty was formed.3 Abroad it had a more marked and permanent influence, which tended to increase with the increase of the influence of the rules and conceptions of the Roman law. And in this branch of the law, the influence of the canon law was felt as strongly, if not more strongly, than the influence of the civil law. In many cases the system of procedure devised by the civil lawyers was found to be too lengthy and too cumbrous. We have seen that the canon law had helped forward the growth of a more convenient and a more speedy procedure in commercial cases.* We shall now see that it helped forward similar changes in the law of criminal procedure, in most of the states of continental Europe. 1 Vol. i 301; vol. ii 105-106, 116-117. 2 Ibid 203, 228, 251; vol. iii 630-631. 3 Above 126. 4 Above 81-83. In England the influence of the canonists can be traced in the procedure adopted in civil cases by the court of Chancery and the court of Requests, and in criminal or quasi-criminal cases by the court of Star Chamber. But, while abroad, the older criminal procedure was wholly superseded by the new, in England a reformed edition of the older procedure held its ground. In the law of criminal procedure, as in other branches of the law, the judges of the king's court in the twelfth and thirteenth centuries, had applied their knowledge of the civil and canon law to the work of rationalizing and adapting old institutions and old rules to the new needs of their own time. They had thus devised a system of presentment by grand jury, written indictment, and trial by petty jury which combined the old idea that the individual and the community should take some share in initiating proceedings, with the new idea that the king as representing the state is immediately concerned with suppressing those serious crimes which break his peace; which combined also the new idea that the charge should be precisely formulated in writing, with the old idea that the trial should be public and the procedure oral.1 And when, in the course of the fourteenth and fifteenth centuries, Englishmen began to contrast their own system with that which was growing up elsewhere under the influence of the canon law, they began with some reason to regard it as the most valuable of all the privileges which the common law had conferred upon them.2 It was the system which the Parliaments of the fourteenth and fifteenth centuries proclaimed to be the only constitutional method of criminal procedure, when they protested against those newer methods which the Council and the Chancery were borrowing from the canon law. It was the system which in 1536 they substituted for criminal procedure of the civil law which was used in the court of Admiralty.* A system so deeply rooted in the affections of the people could not be very much modified, far less abolished, even by the strongest of the Tudor sovereigns. But the lawlessness of the fifteenth century 5 showed that it needed to be improved, controlled, and supplemented. This process was carried out mainly by means of adding to the older procedure certain of the ideas which were current in those new and effective codes of procedure with which the modern European states were arming 1 Vol. iii 611-623. 2 Fortescue, De Laudibus c. 22, 27-30; there is no doubt that Fortescue voiced the general opinion when he contrasted the humanity of the English with the cruelty of the continental system, see the passage from c. 27 cited vol. iii 622. 3 Vol. i 487. themselves; and these additions came to a large extent through the Star Chamber. At the same time the strength of the nation's feeling that its rights and liberties were bound up with the maintenance of the criminal procedure of the common law, caused these additions to be very considerably modified in the course of their adaptation to English needs. I have already pointed out that in the sixteenth and seventeenth centuries, as in the twelfth and thirteenth centuries, the reception of foreign. ideas did not lead to the introduction of a foreign system of law, but to the strengthening and improvement and enlargement of our own native system;1 and this fact is, as we shall now see, nowhere so strikingly illustrated as in the law of criminal procedure. But to understand the effect which the English and the continental ideas had upon one another, I must begin by describing briefly the differences between the continental and the English system of criminal procedure at this period. I shall then describe the procedure of the Star Chamber; and show how, as compared with the continental system, it was modified by the ideas underlying the system of the common law, and, conversely, how the continental ideas, which came through the Star Chamber, modified the common law. (a) The differences between the continental and the English system of criminal procedure.2 ... In describing the continental criminal procedure we can take the French development as typical. Esmein has said, "Nowhere had the forms become better settled, or the rules more clearly and firmly established. . . . But, at the same time, nowhere had the severities of the system been more rigorously enforced, or the defence more rigidly hampered. For good as for ill, the system had been carried to extremes. One exception must be made, however, in regard to torture; this was resorted to by Italy and Germany especially with a harshness exceeding that practised in France. One institution in particular, that of the public prosecutor, distinguished France from the neighbouring nations. Not that it was not also found abroad, but it had either been introduced by French influence, or it was imperfect and did not form, as in France, an essential part of the machinery of the procedure." As early as the ninth century the church had allowed notorious crimes to be prosecuted without the necessity of an 1 Vol. iv 285-286, 292-293. 2 In dealing with this subject I have relied upon Esmein's history of Continental criminal procedure translated by J. Simpson for the Continental Legal History Series; and the references are to the pages of this edition. 3 Op. cit. 288. 3 2 4 accuser,1 But it was difficult to establish notoriety, and no person had an official right to prosecute. The latter defect was remedied by papal legislation of the late twelfth and early thirteenth centuries. The judge was allowed, on proof of ill fame, to prosecute officially the suspected person; and he could proceed per inquisitionem. The person thus prosecuted could be compelled to answer on oath the questions of the judge; and this "inquisition" was from that time onwards a central feature of the canonical procedure, and of the criminal procedure developed from it. Once this procedure had been established it made rapid way. The injured person naturally preferred it, both because it was very much more effective, and because the bringing of an unsuccessful charge did not, according to the canon law, involve the prosecutor in the penalties which would have been inflicted on the accused if the charge had been proved.5. Technically he was not the accuser: he merely denounced the accused to the judge and so set in motion the inquisitorial procedure. The spread of this method of prosecution soon gave rise to another development-the rise of officials specially charged with the duty of denouncing offences to the judge, and of thus setting in motion the inquisitorial procedure; and its efficacy was increased by the fact that in the thirteenth century torture was allowed to extort evidence. At first a considerable liberty of defence was allowed. But this liberty was gradually restricted, more especially in cases of heresy; and these restrictions were not only imitated 8 7 9 2 Ibid 80. 1 Esmein, op. cit. 79-80. Ibid-"It was introduced by the decretals of Pope Innocent III. The first to come under notice is of date 1198. Then a series is found in rapid succession, in 1199, 1206, 1212. At last, in 1215, the fourth Lateran Council solemnly confirms the principle." 4 Ibid 82; to get round the rule that no one was bound to incriminate himself, it was said that, though under the compurgation system the infamatus must have not only his own oath but also that of the compurgators to clear him, under the inquisition system only his own oath was required; as Esmein says, this was a sophism; the compurgation and the compulsion to answer dextrous interrogatories were very different things; for the history of the rule against self-incrimination see below 182, 193-194, 333; Pt. II. c. 7 § I. 5 Ibid 86-87. • Ibid 87-88. 7 Ibid 91-92—" The Canon law had permitted it by virtue of the predominating influence of the Roman law. No trace of it is to be found in the procedure of the ecclesiastical courts of the Frankish monarchy, and the Decretum of Gratian . . . repudiates torture . . . the instrumentality by which the influence of the Roman law in this direction was augmented and sanctioned is to be found in certain passages borrowed from the ancient ecclesiastical Fathers who lived in the days of the Roman Empire, and who spoke of the torture which they saw in practice every day in a civilized country as if it were a normal and natural thing. The great doctors of the thirteenth century, including Innocent IV. and Durantis, entertained no doubts as to the legality of this method of examination." Ibid 90-91-thus the accused got the depositions of the witnesses against him; he could produce objections to their admissibility, and could reply to their testimony; he could freely plead any defence he had, and prove it by witnesses; he could have the help of counsel. 9 Ibid 92-93. but even made more severe when the procedure per inquisitionem was adopted by the state, and made the regular procedure in criminal cases. 2 3 4 In the secular law this procedure per inquisitionem could at first only be used if the accused consented.1 This was a similar rule to that which required the consent of the accused to a trial by petty jury; and, as in our law, the consent was often compelled by duress. But there was one exception to the rule which required the consent of the accused. The procedure could be used without the consent of the accused if he was caught red handed; and it came to be thought that, if the guilt of the accused was so obvious that many witnesses were prepared to swear to it, it could also be applied, because the notoriety was equivalent to capture in the act. The judge, being thus apprised" of the facts, could proceed by inquest-hence the name for this form of prosecution was the "aprise." This development was helped by the existence of the king's right to find out facts which affected his rights by inquest." The repression of crime had come, by the thirteenth century, to be regarded as a matter in which the king was chiefly interested. Therefore it was thought that he might apply this inquest procedure to all cases; and it was not long before the two forms of procedure-the "aprise" and the inquest-became merged. The inquest thus developed into a body of witnesses who, in accordance with the ideas of the canon law, could be questioned secretly and apart, and not, as in England, into a body of jurors. And, in accordance with these same ideas, the accused could be questioned on oath. The other developments which had occurred in the canon law soon made their appearance. The private accuser could make use of it by denouncing the accused to the judge; 10 and soon a set of public prosecutors arose in the procurators of the king and the great nobles.11 7 6 9 It was not long before the canonical methods of taking evidence made their appearance. The witnesses were summoned by the court, and were questioned by the delegate of the judge in private. The delegate reduced the depositions to writing, and they formed the chief material upon which the parties and the judge proceeded at the hearing. With these canonical methods and rules as to cit. 94. 1 Esmein, op. 6 Esmein, op. cit. 98. 8 Ibid 106; cp. vol. i 303-304, 315-319. 9 Esmein, op. cit. 95-96, 120. 2 Ibid; vol. i 327. 5 Ibid 97; vol. i 312. 7 Ibid 99. 10 Ibid 99-100. 11 Ibid 114-118-they appear at first not as direct parties, but as promoting the office of judge, as denunciators who set the judge in motion. |