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In other directions, however, the legislature did very little to reform the shortcomings of the mediæval criminal procedure.1 Any reforms must have taken the form of arming the government with fresh powers against the criminal; and it would have been difficult to induce Parliament to agree to a set of changes which would have aroused popular apprehension. But an opportunity was afforded to the courts to make some changes by the lack of precise rules as to the conduct of prosecutions. The legislature had prescribed a preliminary examination; but it had not stated precisely how it was to be conducted. No definite rules existed as to the mode in which evidence should be taken, or as to the mode in which the jury might arrive at its verdicts. It was not even certain whether the prisoner could call evidence for the defence. The king, by virue of his prerogative, had certain privileges, not always very clearly defined, in the conduct of cases to which he was a party. It is clear that such uncertainties as these gave an opportunity for innovation. It was impossible to transplant the inquisitorial procedure of continental codes; but it was possible to take some hints from the procedure of the Star Chamber, which had to a certain extent been influenced by the continental ideas. To understand the nature of this influence we must look at the salient features of that procedure.

(b) The Procedure of the Star Chamber.

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In outline the ordinary procedure of the court of Star Chamber in the sixteenth century was very similar to that used by the court of Chancery. Council and Chancery had, as we have seen, worked together in the medieval period. Therefore their procedure in the Middle Ages was in substance identical. I shall describe the mediæval procedure of the Chancery when tracing the earlier history of equity. It will therefore be sufficient if at this point I describe the procedure of the Star Chamber as it existed during this period.

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The proceedings before the Star Chamber began by a Bill "engrossed in parchment and filed with the clerk of the court." It must, like the other pleadings, be signed by counsel; and the counsel in Lord Keeper Bacon's time, must have attained the rank of double reader or be one of the king's counsel. But, when Hudson wrote, the requirement of status was not insisted on."

1 Vol. iv 531-532.

2 Vol. i 399-404.

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3 Below 284-287; see generally on this topic Baldwin, The King's Council, 280304; Select Cases before the Council (S.S.) xxxv-xlv.

4 Hudson, op. cit. 150; for some early specimens see Select Cases in the Star Chamber (S.S.) i 1, 6, 15, 54.

5 Hudson, op. cit. 151; at this period the formation of the definite order of King's Counsel was only in its initial stages, see vol. vi c. 8.

Ibid; cp. Les Reportes del Cases 32.

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However, counsel were obliged to be careful what they signed. If they put their hands to merely frivolous pleas, or otherwise misbehaved themselves in the conduct of their cases, they were liable to rebuke,1 suspension,2 a fine, or imprisonment. The Bill must state the matters charged certainly and truly. There must be certainty both as to the place and as to the time of the matters alleged. Though the court did not show the same strictness in its requirements as to the form of a Bill as the courts of common law showed in their requirements as to the form of an indictment, yet an offence must be shown on the face of it. Thus "in the earl of Northumberland's Case against Burr for forging and publishing a deed, the publication of the forged deed was proved against the defendant; yet because he was not charged to have published it knowing it to be forged, which makes the offence in the publisher and is the apt legal charge, the defendant was dismissed." The conclusion of the bill must pray process against all the defendants, and must name them by their right names.10 Unless these rules were complied with a motion to dismiss the Bill would succeed; and the plaintiff would be obliged to start again.11

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The defendant then appeared, and retained his attorney, who took a copy of the Bill in order to prepare the defence.12 The defence, Hudson tells us, should always be drawn by counsel. 13 It could take the form of a plea, a demurrer, or an answer. The possible pleas were very similar to those admitted in the common law courts, e.g. there might be a plea to the jurisdiction of the court; or the disability of the plaintiff, or the fact that the matter had been determined or was under consideration by another court might be set up.14 Similarly, as at common law, there

1 In Les Reportes del Cases 43, the Lord Keeper said to counsel, "You must goe to schoole to learne more wytte, you are not well advysed, you forgette your place, and to be plaine it is a lye "; cp. ibid 127, 128; Stephen, H.C.L. i 341.

2 Les Reportes del Cases 32-a barrister disbarred for seven years for putting his hand to a scandalous bill.

3 Ibid 82-counsel fined and disbarred from all further practice in the court. 4 Hudson op. cit. 162.

5 Ibid 154.

7 Ibid 154, 155; cp. Les Reportes del Cases 61.

6 Ibid 153.

8 Hudson, op. cit. 156; for the common law rules see vol. iii 617-619.

9 Hudson, op. cit. 156.

10 Ibid 157.

11 Ibid 156. There were various orders made against too great prolixity in the bill, see vol. i 500-501.

12 Hudson, op. cit. 157-160; at p. 158 Hudson says "In former times this appearance was always taken before some lords, and either in court of council chamber, or in the lord keeper's house; and of latter times before the clerk of the court, who went sometimes (very rarely) to take the appearance of the defendant; for which he hath ever had the fee of ten shillings; the gaining whereof hath caused the under clerk to attend all persons of any eminence, to take their appearance at their house or lodging; which is a great derogation to the dignity of this

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13 Ibid 160.

14 Ibid 162-164.

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might be demurrers for insufficiency in the form of the Bill,1 or in the matter of the Bill. 'Insufficiency of matter is alleged, sometimes, that the matter in charge tendeth to accuse the defendant of some crime which may be capital; in which case nemo tenetur prodere seipsum; or upon a penal law, where he is to forfeit his goods: sometimes, that the matter is proper for ecclesiastical cognizance, as defamation or such like: sometimes, that it is petty or trivial, and so not worthy the dignity of the court. Proof of a plea or demurrer meant that the bill was dismissed with costs.3 If it was not proved the defendant was ordered to make a better answer.1 The answer must either confess the charge made by the Bill, or deny it, or justify by reason of some title or provocation. It "must be engrossed in parchment and subscribed by counsel, and so brought to the clerk of the court, who is to give the defendant his oath; which is, that so much of the answer as containeth his own act and deed, he knoweth to be true; and so much as containeth another man's, he supposeth to be true; and he sweareth likewise, that he shall make true answers to such interrogatories as shall be ministered unto him concerning that cause. The answer was then delivered to the plaintiff's attorney to be copied for him."

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Upon the answer the plaintiff drew up interrogatories which the defendant must answer. 8 It would seem from Hudson's account that, in spite of the efforts of Bacon and Egerton, the power to administer these interrogatories was much abused.9 The defendant was examined privately, and must reply without the help of counsel.10 Moreover Egerton advised those who took these examinations not to allow either the defendant or the witness the help of writing to refresh their memories. Speaking

1 Hudson, op. cit. 164-165; Les Reportes del Cases 91; apparently the time of the court was sometimes wasted by frivolous demurrers, ibid 143.

2 Hudson, op. cit. 164; for the history of the maxim "nemo tenetur, etc.," see Pt. II. c. 7 § 1; but it was not applied when the procedure was extraordinary, below 184-187.

3 Ibid 165.

4 Ibid 165-166.

5 Ibid 166; for a specimen of an answer see Select Cases in the Star Chamber (S.S.) i 47, 48.

6 Hudson, op. cit. 167; Hudson explains, ibid 167-168, that all, even the lords of Parliament must answer on oath, though they had attempted to set up a special privilege against this; "but if any person shall refuse to answer, being imprisoned, he shall have day given him, and be close imprisoned; and if that will not prevail, he shall, by another day, have the bill taken pro confesso; or sometimes he is kept with bread and water, as young Booth was.'

7 Ibid 167.

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8 In Reportes del Cases 72 the court held that the refusal of a defendant to answer was equivalent to a confession; cp. ibid 74, 90.

9 Ibid 169, 170; vol. i 500-501; Les Reportes del Cases 54, 55—a case in which there were 155 interrogatories on one side and 125 on the other.

10 Hudson, op. cit. 170.

11 Reportes del Cases 222—“A wyse commissioner will hear a wytnes viva voce and admitte noe wrytinge.'

of the manner of taking the examination Hudson says,1 "Neither may he or his counsel have any sight of the interrogatories to give him any directions, but the examiner readeth an interrogatory, and requireth an answer to the same, and then readeth another; by reason whereof if he affirm a falsehood at first he is taken in an error, whereby he is compelled to reform his error; and this examination may be in any part amended by him before he putteth his hand thereto, whereby he doth acknowledge it to be that by which he will abide." These examinations were usually conducted by four commissioners who, in Hudson's day, were often chosen by the parties.2 In earlier days, and probably in cases of cases of public importance in Hudson's day, they were selected by the court. The examinations, when complete, were engrossed and returned to the court under the seal of the examiners, together with any documents (called "exhibits") which had been put in evidence.1

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We have seen that in earlier days the methods of procedure in the Chancery were not so markedly different from the procedure in the common law courts as they afterwards became." It was the same with the procedure of the court of Star Chamber. After the answer, there were sometimes further pleadings till the parties came to an issue as at common law. Thus we find replications by the plaintiff, and rejoinders by the defendant; "and the pleadings have, in ancient times, proceeded to the surrejoinder and rebutter." But it is clear that when Hudson wrote the joinder of issue, and the later pleadings leading up to the joinder of issue, had become, as they became in the court of Chancery, mere matters of form. The next important step was the examination of the witnesses.10

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The examination of the witnesses took place either in court

1 Hudson, op. cit. 170-171.

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4 Ibid 186; for some specimens of these interrogatories see Select Pleas in the Star Chamber (S.S.) i 89, 177; for some specimens of the examinations taken see ibid 117, 270, 271.

5 Vol. i 450-451; cp. Select Cases in the Chancery i 26, 52, 53, 89. "Hudson, op. cit. 189-192; Select Cases in the Star Chamber (S.S.) i 66, 67, 78, 79, 117, 232, 234.

7 Hudson, op. cit. 191.

8 Pt. II. c. 7 § 3.

9" The replication itself is but the avoidance or denial of the answer and maintenance of the bill, to draw the matter to direct issue, which may be proved or disproved by testimony; but if anything be omitted out of the bill material to charge the defendant, although it be alleged by way of replication, it is not pertinent nor shall any defendant be convicted thereupon; by reason whereof there is so little regard of the replication, as that they are only drawn by clerks, without any regard whether there be any issue joined in the case or not, no counsel being made privy or acquainted therewith; insomuch as if many causes were well looked into when they come to hearing, the parties would be found not to have joined any issue," Hudson, op. cit. 191.

10 For some specimens of these examinations see Select Cases in the Star Chamber (S.S.) i 68, 69, 80-88, 184-187, 193-198,

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by an examiner specially appointed, or by commissioners in the country.1 Like the commissioners appointed for the examination of the defendant, they could be appointed by the court or chosen by the parties.2 They examined each witness apart from the others and in private.3 All witnesses must be sworn, even peers of the realm.4 Each witness must be produced before the attorney of the other side that he might be identified, and that the attorney might be able to get him examined on his own. behalf. The court of Star Chamber did not discourage volunteer witnesses: it welcomed and protected them. The other party could not examine in order to discredit them, because if this were allowed it would discourage them from coming forward to testify. Any exceptions to the witnesses must be moved in open court. Probably for a similar reason they could not be compelled to incriminate themselves, or to answer any question scandalous to themselves. As a rule a person could not be compelled to testify; but it is clear that on grounds of public policy the court would compel them to testify by committing them to prison if they refused. 10

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Already some of the defects of this method of examination were beginning to appear. Though the witnesses could be examined upon as many interrogatories as the party wished if the examination took place in court," this could not be done if the examination took place before commissioners in the country. Only the interrogatories settled upon before the commission issued could be administered without a special order of the court.12

Hudson, op. cit. 199.

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4 Ibid 207-Hudson says that the peers claimed to give evidence on their honour, but that "the present current is against it"; in Les Reportes del Cases 222 Egerton clearly pronounced against it, "Not sworne bindes no man."

Hudson, op. cit. 200.

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6 Ibid 200-201- "But it is wondered that this court suffereth not the parties to examine the credit of witnesses. And the reason why is, for that causes being for the king, if witnesses lives should be so ripped up, no man would willingly be produced to testify; and therefore many opinions. of judges are extant in this court, where it is adjudged that a witness deposing for the king upon an indictment shall not be questioned for perjury; yea this court hath ordered a great reward to witnesses yielding their testimonies for the king"; but the rule that the king's witness could not be indicted for perjury was denied by Coke in the Star Chamber, Les Reportes del Cases 108. 8 Ibid 208-209.

7 Hudson, op. cit. 201.

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10 Ibid.

11 Ibid 200.

9 Ibid 209. 12" Egerton understanding that when commissions were in execution, both parties attended with their counsel, and when they suspected a proof made against them they always drew new interrogatories to cross that proof, which he conceived to occasion much perjury; he therefore made an order, that in all commissions which went forth for the examination of witnesses, they should include all their interrogatories, and the commission should go to examine super interrogatis inclusis, and not ministrandis. Nay, if commissions be in part executed, they cannot add to or alter any of those interrogatories . . . except it be by the special order of the lord keeper or the court," ibid 202.

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