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The court did not see the witnesses, and therefore it was not easy to form a conclusion as to their credibility. The commissioners could not adjudicate upon the question whether a witness was incompetent. This must be reserved to the court, which settled the point at the hearing; so that in case an exception to a witness was upheld by the court the time and labour of the commissioners were thrown away. Hudson was by no means blind to these deficiencies of the established practice of the Star Chamber in the taking of evidence. But it is clear from his account that many of them arose very largely from the fact that the law of evidence was as yet in an experimental stage. The common law courts were only very gradually feeling their way to the establishment of a law of evidence. 4 Therefore neither the Star Chamber nor the Chancery could expect to find much guidance in the common law. On the other hand the long treatises of the civilians were so copious that they puzzled judges and practitioners whose knowledge of the civil law was slight.5 It became necessary, therefore, for these courts to make their own rules; and we shall see that some of these rules have had a considerable influence upon the making of our present law. Here it will be sufficient to give one instance. The earliest statement of the rule that a declaration by a dying man as to the cause of his death is admissible evidence in a trial for murder or manslaughter is to be found in a dictum of Coke in the Star Chamber."

The next stage of the case was the publication of the answers of the defendant and the witnesses. After publication no more witnesses could be sworn except for very special reasons.3 One of these reasons might be a desire of the court to hear more evidence. It was then said to be taken ad informandum conscientiam judicis, as in the continental practice. Then was the time to bring forward any objection to the evidence taken or

1"It is a great imputation to our English courts, that witnesses are privately produced, and how base or simple so ever they be yet they make as good a sound, being read out of paper, as the last," Hudson, op. cit. 200.

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2 Ibid 203-unless it appeared that the witness was a party to the suit or an idiot.

3 Ibid 215.

4 Pt. II. c. 7 § I.

5 Hudson after stating some rules as to the competency of witnesses, as to the method of getting them before the court, and as to the mode of examination, says that he has spent more time upon this subject, "for that the books of common law do yield small direction for examination of witnesses, and the civilians are therein far too copious."

6 Pt. II. c. 7 § I.

7 Les Reportes del Cases 318-"If a man be robbed or wounded and he writes down a perfect description of the men whereby they are known and so dies, this will be good evidence to convict them "; Stephen, H.C.L. i 447, 448 thought that the rule was only about 100 years old.

8 Hudson, op. cit. 210-211.

9 Ibid 211; Reportes del Cases 206, 211; vol. iv 278 n. 2.

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as to the conduct of the examination.1 After publication, the plaintiff, by an order of the court made in 1576, must within three terms, have the case set down for hearing. The hearing was, as we have seen, in public; and both parties could have the assistance of counsel. After the reading of the evidence and the arguments of counsel "the lords proceed to their sentence, which is always delivered in great silence, and without any interruption, the inferior beginning, and so in order every man. The views of the majority prevailed. But in case of equality of voices it seems to have been admitted, after some controversy, that the presiding judge-the Lord Chancellor or Lord Treasurer-had a casting vote.

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In the ordinary procedure of the court of Star Chamber we can see the influence both of the common law and of the continental ideas. In the manner of pleading, in the open hearing, in the liberty of defence, in the permission to employ counsel at all stages of the proceedings, we see the influence of the common law. In the obligation of the defendant to answer, and to submit to interrogatories on oath, in the secrecy of the examination of both defendant and witnesses, and in the manner of hearing the case on this written evidence we can see continental influences. But the ordinary procedure was not the only procedure which the court used. For extraordinary cases extraordinary methods of procedure must be employed; and it is in these extraordinary cases that the analogy with continental methods becomes closer. We may recall the fact that it was precisely this distinction between ordinary and extraordinary cases which had appeared at an earlier date on the continent; that 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

We have seen that Hudson admits the existence of this extraordinary procedure, but that he deprecates its use in any but extraordinary cases.8 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

1 Hudson, op. cit. 215.

4 Hudson, op. cit. 222.

2 Ibid 215, 216.

5 Ibid 223.

3 Above 156.

6 Ibid 30, 31, 223, 224; Les Reportes del Cases 4, 5, 320; Select Cases in the Star Chamber (S.S.) i xxxiv n. 2; Proctor's Case (1615) 12 Co. Rep. at p. 119.

7 Above 173-175.

8 Above 165.

that it was free to disregard not only the ordinary rules of procedure, but also the ordinary rules of law.

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(i) That torture was used all through this period is conclusively proved by the Acts of the Privy Council.1 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 state, but also in the case of persons charged with serious crimes having no reference to safety of the state; and that it was used, not only to extort confessions, but also to obtain a disclosure of accomplices. But it is also clear from the works of Fortescue, Smith, and Coke,5 and from the resolution of the judges in Felton's Case, 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; 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. Fortescue does not say that it did not exist in England. Smith (much against his will) was present at its infliction. Coke, while attorney-general, had prepared documents which authorized its application; and, in The Countess of Shrewsbury's Case, he seems almost to admit its legality.1 It is clear also that after the resolution of the judges in Felton's Case it continued to be inflicted.11

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1See 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 licence to torture see Pike, Hist. of Crime i 427.

2 Jardine, Use of Torture App.

3 De Laudibus c. 27.

De Republica Anglorum, Bk. ii c. 24-" Torment or question which is used by the order of the civil 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.'

5 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."

6 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.” 7 History of Continental Criminal Procedure 107.

8 Jardine, op. cit. 25.

9 Spedding, Bacon's Letters and Life v 93 n.; vii 78, 79.

10 (1612) 12 Co. Rep. at p. 96; speaking of the privileges of the nobility, he says"For the honour and reverence which the law gives to nobility, their bodies are not subject to torture in causa criminis læsæ Majestatis"; as Hargrave says, 2 S.T. 774 n. a, his language as Attorney-General at the trials of the earls of Essex and Southampton bears out this view.

11 Jardine, op. cit. 57-the last case occurred in 1640, ibid; and see S.P. Dom. 1640 191, ccccliv 39; Gardiner, History of England ix 141. But it may be noted that in 1666-1667 it was suggested to the Secretary of State that a threat to use torture might be expedient, S.P. Dom. 1666-1667, 466, clxxxix 29; and that in 1678 the Lord Chancellor suggested that Prance's memory should be refreshed by making him view the rack, S.P. Dom. 1678, 593; moreover Mr. Senior has pointed out, Doctors'

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What then is the explanation of this contradiction? We get the key to its solution in the manner in which the question was put to the judges in Felton's Case. The king, Rushworth tells us, asked the judges "whether by the law he might not be racked, and whether there were any law against it, for (said the king) if it might be done by law, he would not use his prerogative in this point.' It is clear that the use of torture, though illegal by the common law, was regarded as legal if inflicted under the authority of that extraordinary power of the crown to supersede the common law on occasions of emergency, which was admitted to exist by most people in the time of the Tudors, and by very many in the earlier Stuart period. This is the view which is taken by Jardine,2 Spedding, and Gardiner; and it seems to be obviously right. In other words, torture was used, and its use was justified in England, as its introduction and use was justified in France, on the ground that it was an extraordinary proceeding which the extraordinary power of the crown could justify. And there are signs that in England, as abroad, its application was to some extent regulated by reference to those rules of proof which, according to the continental criminal procedure, must be satisfied in order to secure a conviction. At any rate it is certain that civilians, who could not be ignorant of the rules of that procedure, were often instructed to be present at its infliction in terms which recall the rules of the civil law.7 Commons and the Old Court of Admiralty 102, that a commission which was issued in 1673 to eleven military officers and four D.C.L.s contemplates the use of torture. Op. cit. 650; Jardine, op. cit. 60-62 throws some discredit on Rushworth's narrative; but Gardiner, History of England vi 359 n. 2 believes that it is correctas he says, "the position Charles was in after the grant of the Petition of Right would make him shy of using his prerogative unless he felt himself to be unquestionably justified in doing so."

2 Op. cit. 59, 60-"When such writers as Fortescue, Coke, and Smith denounce the use of torture as illegal, they must be considered as speaking of it with reference to the common law of England, and its employment in the ordinary administration of justice; but they would probably have admitted that the use of the rack was lawful and justifiable by the English Constitution if warranted by the special command of the king ; cp. Pike, Hist. of Crime i 427, 498.

3" As the House of Commons now assumes the right to commit any commoner to prison for what it judges to be contempt of its authority, so the Crown then assumed the right to put any commoner to torture for what it judged to be obstinacy in refusing to answer interrogatories. As the judges cannot now call upon the House of Commons to justify the committal, so they could not then call upon the Crown to justify the torture," Letters and Life of Bacon v. 93.

History of England vi. 358 n. 2.

5 Above 173-174.

6 Jardine, op. cit. 64-65; "The vehement suspicion of guilt constantly recited in the warrants corresponds to the indicia ad torturam amounting to the semiplena probatio required by the civil law" ; also the distinction, "between bringing an accused person to the rack for the purpose of putting him in fear of it, and the actual torture, which also corresponds to the territio and the tortura of the civilians," ibid.

7" It seems to have been considered necessary [in the earlier instances] that one of the Masters of Requests should be present at examinations by torture... their presence was probably required in order that the rules prescribed by the civil law for the management of such examinations should be duly observed," ibid.

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

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(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. And in spite of Hudson's views that these extraordinary powers ought to be used only occasionally, in spite of his assertion that most of the ordinary rules of procedure were in all cases binding even upon the Attorney General, we can see from the Council records and from Hawarde's reports, that the court was quite as ready on a suitable occasion to imitate the continental practice, and strain every point against the accused, as it was ready to imitate the continental theory and practice of torture. Thus in 1602 the Lord Keeper is reported as saying he would make a certain order, even it be not the course of the court, for in such great cases, in which there was 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." In 1603 Cecil said, "the king's justice is ordinary or extraordinary; and to proceed at the discretion of His Majesty's Committee of State is extraordinary and warranted by the statutes. In 1606 the Lord Chancellor said, "Exorbitant offences are not subject to an ordinary course of law." 6 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; and it is quite clear that the accused was not allowed to refuse to answer by invoking the privilege against self-crimination, which he possessed in ordinary cases. Lilburn's Case (1637), which, as we shall see, had eventually a good deal to do with establishing this privilege in our modern law, shows that, at this period, the court, if it saw fit, would disregard it."

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The Council and Star Chamber were, as Hudson said, the

1" The rack is used nowhere as in England. In other countries 'tis used in judicature, 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 judicature but when somebody bids," Table Talk (Ed. Reynolds) pp. 184, 185.

2 Op. cit. 137; vol. i 501.

4 Les Reportes del Cases 144.

7 Hudson, op. cit. 209.

3 Above 185 n. I.

5 Ibid 177.
8 Above 182.

6 Ibid 292.

93 S.T. 1315 seqq.; Wigmore, H.L.R. xv 624-625; Pt. II. c. 7 § 1; for another instance where persons accused of libel were compelled to answer on pain of having the bill taken pro confesso see Les Reportes del Cases 146.

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