"Schola Reipublicæ." We shall now see that the common law courts and the common law, though to a certain extent they influenced their schoolmasters, in very many respects showed themselves apt pupils. (c) The influence of the common law upon the procedure of the Star Chamber, and the influence of the procedure of the Star Chamber upon the common law. We have already seen that we can trace the influence of the common law in the publicity of the hearing, in the methods of pleading, and, to a certain extent, in the methods of examining the defendant and witnesses adopted in ordinary cases.1 But probably it is the restriction of the jurisdiction of the court to offences under the degree of capital which is the most striking instance of the influence of the common law. This meant that all cases of treason or felony were beyond its scope unless the crown was content to treat them merely as trespasses; 2 and we shall see that this limitation imposed upon the Star Chamber a procedure which was very much more favourable to the accused than either the continental procedure, or the procedure used in the courts of common law in cases of treason or felony. It is, as we have seen, probable that this restriction upon the jurisdiction of the Star Chamber was due to the Parliamentary agitation of the fourteenth and fifteenth centuries against the extension of the jurisdiction of the Council.3 Parliament contended that the Council had no jurisdiction over freehold, or over crimes punishable capitally, i.e. over treasons and felonies. In support of the latter restriction it relied upon an (historically) false interpretation of the thirty-ninth clause of Magna Carta (1215), which it attempted to fortify by statutes and petitions.4 Though none of these statutes or petitions clearly barred the Council from the exercise of this jurisdiction, the feeling that such cases should be left to the common law was so strong that the government was compelled to yield to it. Any attempt to give the Council or Star Chamber jurisdiction in such cases would probably have provoked rebellion. Such an attempt would certainly have been declared to be contrary to Magna Carta and in subversion of the common law; and in the Star 1 Above 156, 179-180, 181, 181-183. 2" All offences may be here examined and punished, if it be the king's pleasure, as treason and murder, felony and trespass; but there are not (sc.) all these offences punished as trespasses and not capitally," Hudson, op. cit. 62-63; “if these capital offences shall be proceeded against capitally, then must men be tried by course of indictment by their peers per legem terra; neither can any suits be commenced of this nature but by the king, who hath power to remit the greater, which is felony; for a subject may not prefer a bill for any such offence, thereby to draw the examination of a crime that is capital," ibid 64-65. 3 Vol. i 488. 4 Ibid 59-62, 487. Chamber itself breaches of Magna Carta and deliberate departures from the common law were not regarded with favour.1 2 We should remember also that the feeling that the more serious crimes should be tried by the older procedure was not confined to England. Esmein tells us that, when the inquisitorial procedure was being introduced into France, it could not at first be applied to the more serious crimes. But in France the older procedure was too archaic to hold out permanently against the new procedure. In England, on the other hand, the common law procedure had been rationalized. It had greater powers of resistance; and therefore it was able, not merely to delay the application of the newer forms of procedure to serious crimes, but to prevent these newer forms from ever being applied to them. 3 Now this limitation of the jurisdiction of the Star Chamber to less serious criminal cases meant that it was practically impossible to fetter the defence of the accused in the way in which it was fettered abroad. The excuse of paramount public policy could not so well be invoked. Thus in the Star Chamber the accused had every opportunity to collect his evidence and to state his case; and in all stages he had the assistance of counsel. For this reason it became practically impossible for the Star Chamber to introduce into its ordinary procedure those harsh rules which disfigured the criminal procedure of the continent. But the same feelings which in France induced popular opinion to acquiesce in, and even to approve the severities of the inquisitorial procedure, in England made it possible to introduce changes into the criminal procedure of the common law which gave far greater advantages to the crown than it had ever possessed before. There is no evidence that these changes were unpopular. On the contrary there is a good deal of evidence that they commanded popular approval.5 And the reasons why they were popular were much the same in England as they were abroad. The maintenance of a strong government was felt, and felt rightly, to be the only security for peace and order. But the 1 In 1595 certain acts of Sir W. Raleigh as Lord Warden of the Stannaries were said to be contrary to Magna Carta, and it was affirmed that the common Law was "the surest and best inheritance that any subject hath, et qui perde ceo perde tout, Hawarde, Reportes del Cases 96. 2 Above 173. 3 Above 179; see Dasent x 249 (1578), a prisoner in the Marshalsea allowed to see his counsel, Plowden and Gaudy; he was said to be indicted-probably for a misdemeanour; as the Star Chamber only dealt with misdemeanours the common law rules applicable to the trial of these matters were applied in the Star Chamber. 4 Above 175-176. 5 Gardiner, History of England i 124, 125. 6 One of the best accounts of this state of feeling is to be found in Mr. John Pollock's book on The Popish Plot 265-267; as is there pointed out, at pp. 266-267, 2 government had no standing army and no force of police. It was exposed to intrigues from without and to sedition from within. "The state was always in danger, the government always battling for its own life and the safety of society, the morrow always gloomy for the success of their cause. Thus the state trials of the period were regarded, not as impartial enquiries into the guilt or innocence of a prisoner, but as incidents in the never ceasing welfare between the state and its enemies. "Judges and jurors alike," says Mr. John Pollock, "were engaged in the recognized task of the defence of the state. Το the hearers it was no quaint piece of antiquated phraseology when the clerk of the crown addressed the prisoner arraigned at the bar for high treason: 'These good men that are now called, and here appear, are those which are to pass between you and our sovereign lord the king, upon your life and death;' it was a sober expression of vivid truth. The jury stood between the king's life and the intrigues of a defeated malefactor." We have seen that abroad the extraordinary procedure, which gave great advantages to the prosecution, somewhat easily became the ordinary procedure in all criminal cases. Just so in England, some of the rules of criminal procedure which were approved because they gave enormous advantages to the crown in all state prosecutions, soon became the ordinary rules of criminal procedure. Some of the continental ideas, which, for want of jurisdiction, the Star Chamber could not directly apply to cases which came before it, were indirectly made to influence the somewhat vague and indeterminate rules of the criminal procedure of the common law, and continued to influence it long after the Star Chamber had ceased to exist. 3 Of some of the developments in the growth of the criminal procedure of the common law during this period I shall speak in the Second Part of this Book. Here I shall only deal with certain features in it which seem to have been influenced by the continental ideas. (2) I have already said something of the statutes which made it more difficult for a person accused of treason or felony to get from the beginning of the Reformation to the Revolution, "besides conflict with foreign powers, war and rebellion, constant in Scotland and almost chronic in Ireland, there may be counted in eight reigns three completed revolutions, ten armed rebellions, two great civil wars, and plots innumerable; all emanating from the English nation alone"; there were constant foreign plots; and the result was that, "Whereas government is now looked on as a means of getting necessary business done, of ameliorating conditions of life, and directing the energy of the country to the highest pitch of efficiency, two centuries and a half ago it was anxiously watched as an engine of attack or defence of persons, property and conscience"; clearly the criminal law should be made as efficient an engine of attack as possible. 1 Pollock, op. cit. 267. 3 Above 173-174. 2 Ibid 286-287. 5 4 released on bail. When bail was refused, the prisoner was kept in prison till his trial with no means of preparing his defence.2 We have seen that it was becoming customary to issue warrants for the arrest of persons suspected of treason or felony on the application of anyone who could show good ground of suspicion; 3 and the courts were quite ready to hold that a commitment to prison "per speciale mandatum regis" was a sufficient ground for refusing to release a prisoner on a writ of habeas corpus. Further, we have seen that statutes of Mary's reign required the magistrate to examine the prisoner inquisitorially, and to take the evidence of those who brought him. The magistrates interpreted their powers widely. They actively got up the case against the prisoner, not only by questioning him and the witnesses against him, but also by searching for evidence against him.6 We have seen that these examinations were conducted secretly, and that the evidence was communicated to the prosecutor and the judge but not to the prisoner. It appears from Smith's account that the results of this examination of the prisoner and the witnesses played a very important part at the trial. In important cases in which the state was affected these examinations were conducted by the Council or by the judges.9 In such cases they formed, as Gardiner has said, 10 the real trial; and it was, as we have seen, in these cases that torture was freely employed. If we look at the way in which the increased powers of detention, and the new powers of preliminary examination were used, we cannot help seeing that the manner of their use was influenced by the continental ideas. No doubt the example and the encouragement of the Council and Star Chamber helped to teach the ordinary justices of the peace to use their new powers in this way-a lesson which tends to the magnifying of the office of an official is somewhat easily learned. The justices were generally ready enough to hunt down and examine criminals. They could not torture them; but there was very 8 1 Vol. iv 527-528. 3 Vol. i 294-295; vol. iii 600-601. 5 Vol. i 296; vol. iv 529-530. 2 Stephen, H.C.L. i 250. 6 Vol. i 296; for some other illustrations see J. Pollock, The Popish Plot 269276; Stephen, H.C.L. i 222-225. 7 Vol. i 296; Stephen, H.C.L. i 225-228; Dasent vi 310-311 (1558)—the judges of the King's Bench who are to try a prisoner are to get a copy of his examination from the attorney and solicitor general; ibid 324, 325—a direction to the justices of Oyer and Terminer that they are not to try a prisoner till the judge of Assize comes, as he has the copy of the prisoner's examination. De Republica Anglorum, Bk. II. c. 23-"If they which be bound to give evidence come in, first is read the examination, which the Justice of the peace doeth bring in: then is heard (if he be there) the man robbed what he can say etc.; " Pt. II. c. 7 § 2. 10 History of England i 125. 9 Vol. i 296 n. 6. little law as to the kind of pressure which might or might not be applied to make them speak.1 2 (i) From a very early period persons accused of treason or felony were refused the help of counsel. This rule was sternly insisted upon all through this period; and, when its justice began to be questioned, Coke justified it partly on the ground that the court was counsel for the prisoner-a view which was clearly not acted upon in the important state trials of the period; and partly on the ground that, it being for the prosecutor to prove his case so clearly that no defence to it was possible, no counsel was therefore needed. This latter mode of reasoning was, as we shall now see, directly connected with ideas derived from the criminal procedure of the continent. 4 (iii) In the earlier part of this period the prisoner was not allowed to call any witnesses. Even at the latter part of this period, when he was allowed to call them, they were not examined on oath.5 Nor had he any means of " "ascertaining what evidence they would give, or of procuring their attendance." 6 These rules seem to have sprung partly from the absence of any clear law of evidence, but chiefly from the reception of some of the civil law rules as to the admissibility of evidence in criminal cases. We have seen that, at the beginning of the sixteenth century, the practice of summoning witnesses to testify to a jury was a new practice. The question whether witnesses should be allowed to testify to a jury was a question which the court could decide as it saw fit. was ready enough to facilitate the calling crown; and equally naturally the any similar right to the prisoner. Naturally the court of witnesses by the crown opposed the grant of But how could such unfair 1 See Elizabethan Rogues and Vagabonds (Oxford Historical Literary Studies vol. i) 38-39 for a tale from Harman of how he and a surgeon compelled a pretended dumb man to speak-" he had him into a house and tyed a halter about the wrests of his handes and hoysed him up over a beame, and there dyd let him hang a good while; at the length, for very paine he required for God's sake to let him down." 2 This goes back to Anglo-Saxon days, see vol. ii 106-107; it is recognized in Y.B. 30, 31 Ed. I. (R.S.) 530; and it had attained its modern form in Y.B. 9 Ed. IV. Pasch. pl. 4-"Et nota que le defendant en endictment de felony n'avera counsel vers le Roy s'il ne soit matter en ley: mes en appel auter est." 3 Third Insist. 29-" The true reasons of the law in this case are: First that the testimonies and proofs of the offence ought to be so clear and manifest, as there can be no defence of it. Secondly the court ought to be instead of counsel for the prisoner, to see that nothing be urged against him contrary to law and right." 4 Thayer, Evidence 157 n. 4, citing Throckmorton's Case (1554) 1 S.T. 869, 882, and Udal's Case (1590) 1 S.T. 1271, 1281, 1304; he points out that neither Smith nor Staunford say anything of witnesses for the prisoner. 5 Thayer, Evidence 160 n., citing Tyndall's Case (1632-1633) Cro. Car. 291. 6 Stephen, H.C.L. i 350. 7 Vol. i 334-335; vol. iii 648-650. 8 Vol. i 335. 9 As Gardiner says, op. cit. i 125, 126-" When the previous depositions formed almost, if not entirely, the whole of the evidence, a jury would be likely to attach considerable weight to the mere fact that the prisoner had been committed for trial." |