those of the common law courts.1 The absurdity of making the possession by a court of a Latin plea roll the crucial test of its possession of the status of a court of record was justly and forcibly pointed out by Shower in his argument in Rex v. Berchet.2

5

We have seen that in the course of the fourteenth and fifteenth centuries the Council tended to make more use of the writs and processes of the Privy Seal, and less use of the writs and processes of the Chancery, because the former were less formal, more expeditious, and more secret than the latter. We have seen that for this reason the former were used by the Council in criminal or semi-criminal cases, while the latter were used in civil cases; and that this difference in process had a large influence upon the separation of the jurisdiction of the Council from that of the Chancery. But the process of the Privy Seal had the defects of its qualities. The records of the office of the Privy Seal were carelessly kept. It was not until the time of the Tudors that they were collected into bundles; and the tradition of carelessness remained. Hudson tells us that at the beginning of the seventeenth century, the carelessness with which the records of the court were kept, and their informality, were leading many to the conclusion that the court was rather a committee for such great causes as it pleased the king than a court of ordinary justice." 7 But he points out that the court was careful to correct "the neglect of convenient form in him which complaineth; "8 and that the existing carelessness both in the custody and in the writing of the records of the court was of recent date, and was due partly to the age of Mills the clerk of the court, and, after his time, to the practice of entrusting the office to inexperienced deputies. However that may be, the

1 For the inadequacy of the formal record as an account of the most material parts of the trial see vol. i 215-216, 317.

2 (1691) I Shower at pp. 119, 120" Some will have the Star Chamber no Court of Record, because their proceedings are in English. But if that were an objection, then all the ancient Parliament Rolls and Acts of Parliament before Henry the Sixth which are mostly enrolled in French, not in Latin, and many charters, writs, and commissions enrolled in French; and the statutes since the first of Henry the Sixth, must be no records."

3 Vol. i 407-408; Baldwin, The King's Council 254-261.

5 "Characteristically of the methods of this office these [records] were briefly written, sparing of parchment, showing no sign of arrangement or care for their preservation," Baldwin, op. cit. 263.

• Ibid.

7 A Treatise on the Court of Star Chamber, Collect. Jurid. ii 5.

8 Ibid 6; this is borne out by Hawarde, Les Reports, etc., see e.g. pp. 46, 54, 61,

82, 91.

Hudson, op. cit. 6, 7-"This negligence hath crept into the court of very late time, either in Mr. Mills' age, or since the office hath been executed by many deputies, one being thrust out by that time he understandeth the duties of the place, and another put in altogether unexperienced; yet in former times the judgments

VOL. V.-II

records of the court were allowed to remain in a state of chaos till our own days. In spite of recent efforts to sort and calendar the records, papers belonging to different cases and different reigns have been found together. Leadam tells us that "isolated papers belonging to suits of the period of Henry VII. are found sorted and indexed as parts of suits belonging to that of Henry VIII." 1 And, as he says, "confusion is by no means the most deplorable incident in the history of these records." The whole of the decrees of the Star Chamber have disappeared; and that means that we have lost the whole of the first hand evidence as to the judgments given by the court, and the only means of checking the accuracy of contemporary reports of its proceedings. At the same time the Calendars prepared by the record office enable us to see the kind of cases which from time to time came before the court; and the records of the earlier part of this period, published by Leadam, enable us to form some conclusions as to its procedure and as to the law which it administered. A useful supplement to the records is to be found in the collection of forms of pleading for use by suitors in the court published by William West in his Symboleography.5

The loss of the decrees of the court is to some extent remedied

by the contemporary reports of its proceedings. As in the case of the courts of common law, so in the case of the courts of Star Chamber and Chancery, the lawyers found it necessary to make reports of their proceedings for themselves. And, as is the case with the reports of cases in the common law courts, these reports often tell us a great deal more about the law administered by the court, and the principles upon which it was based, than the formal record. The existence of these reports of the proceedings of the Star Chamber and the Chancery shows more clearly than anything else the barrenness of the distinction. drawn by the courts of common law between courts of record and courts not of record. The fact that these courts were royal courts, of at least as great importance as the courts of common law is decisively proved by the need which the lawyers found

before the king and his council were kept in such care, and remain in such order, as no records of the kingdom are of more use than those remaining in the Tower of London."

1 Select Cases in the Star Chamber (S.S.) i xi.

2 Ibid.

3 Ibid; in 1719 a committee of the House of Lords reported that "the last notice of them that could be got was that they were in a house in St. Bartholemew's Close, London."

For these calendars see the 49th Rep. of the Deputy Keeper of the Public Records 376-377; and for a calendar of a large number of cases of Henry VIII.'s reign see ibid 377-594; Les Reportes, etc. Introd. lii.

5(Ed. 1618) Pt. II. 337-350b; see ibid 311-336b for similar precedents for the Court of Wards and Liveries; for William West and his book see below 273-274, 389-390.

Vol. ii 536-541.

for making reports of their proceedings.1 Probably if the court of Star Chamber had not ceased to exist in 1641 a series of Starchamber reports, as bulky and as numerous as the reports of the court of Chancery, would be an essential part of every law library. As we shall see, the earliest printed reports of this court are fuller than the earliest printed reports of the court of Chancery.2 Probably the publication of some of these reports, which still exist in MS., would tell us a good deal more about the law administered by the court than the publication of an equal bulk of the surviving records-just as the publication of Year Books serves a far more useful purpose than the publication of the formal plea rolls.

The most complete set of Star Chamber reports, which have yet been published, are those made by J. Hawarde, which run from January 25th, 1593, to February 14th, 1609.3 This collection, which has been edited by Leadam, comprises a few cases in other courts in which the author was interested, but consists in the main of cases heard before the court of Star Chamber. Probably, Leadam thinks, the cases were written up from rough notes taken in court.5 The earlier part of the book shows signs of careful editing; but the latter part, when it can be checked from other sources, is somewhat careless and inaccurate-notably the account of the judgments in Calvin's Case. It is, however, the fullest report we possess of the doings of the court; and both the arguments and the judgments give us a valuable account of the way in which the business was conducted, and of the principles which the court applied. The book shows us that the court was truly a judicial court, and a court of criminal equity. The cases were regularly and publicly heard; and the parties were represented by counsel. The law applied was based upon the common law; but the procedure of the court enabled it to disregard many of those technical common law rules which

7

1 D'Ewes, Autobiography i 220 tells us that in Michaelmas term 1622 he began "to go to the Court of Star Chamber on Wednesday and Friday in the forenoon, and to take notes of such cases as I heard there adjudged "; we may safely conjecture that other law students did the like.

2 Below 276-277.

3 Les Reportes del Cases in Camera Stellata; the book is hard to get as it was privately printed; it is so valuable as an account of the actual work of the Star Chamber, and as an authority upon the actual administration of the public law of the period, that it would be well worth reprinting as a volume of the Selden Society. * Introd. viii; pp. 139-143, 168, 230-232, 338-341, 349 seqq.

5 Introd. vii.

See e.g. pp. 2, 14, 38, 46.

7 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; 325a lecture on serving process by the Lord Chief Justice.

rendered the administration of the criminal law ineffective.1 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 The only other separate collection of reports which we possess are a series of cases printed by Rushworth which are taken from the years 1625-1637; and a set of reports for the year 1631-1632, which have been printed by the Camden Society. There are also a few cases heard in the court of Star Chamber reported in Dyer, Coke, Plowden, and one or two of the other common law reporters."

The importance of the court induced lawyers not only to report its proceedings but also to write books about its constitution, procedure, and jurisdiction. Of these books by far the most important is the treatise of William Hudson. Hudson was a barrister and bencher of Gray's Inn, whose practice was chiefly in the court of Star Chamber. His active career lies between 1605, when he was called to the bar, and 1635 when he died. As we might expect, he was identified with the lawyers who supported the prerogative. He subscribed the information against Eliot and others for riot in the House of Commons in 1629, and he opened the case against Prynne for publishing his Histrio-mastix in 1632-1633. His fame rests entirely on his book, which gives an impartial and scholarly survey of the history constitution jurisdiction and procedure of the court, based upon its records and upon his own observations. It is a survey which is the more valuable because the author had access to records

7

1 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 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"; 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."

2 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.

3 Historical Collections, Pt. II. vol. ii App. 1-75.

4 Cases in the Courts of Star Chamber and High Commission; the cases in the former court are at pp. 1-180.

5 For these reports and the reporters of this period see below 355-374.

6 Pension Book of Gray's Inn 176; called to be of the grand company in 1622, ibid 246; chosen assistant reader in 1623, ibid 261, and reader in 1624, ibid 267; dean of the chapel in 1630, ibid 298.

7 It is stated in Collect. Jurid. ii p. 1 n. that the MS. of this treatise, contained in Harl. MSS. no. 1226, contains the following memorandum signed by Finch, Chief Justice of the Common Pleas and Lord Keeper in Charles I.'s reign :-" This treatise was compiled by William Hudson of Gray's Inn esq.; one very much practised, and of great experience in the Star Chamber, and my very affectionate friend. His son and heir Mr. Christopher Hudson (whose handwriting this book is), after his father's death, gave it to me 19 Dec. 1635."

which are now lost to us. That he used these records with skill is clear from the fact that his view of the origin of the court is substantially endorsed by Leadam.

His account of the actual constitution, jurisdiction, and procedure of the court is no mere lifeless description. It is always enlivened and substantiated by the cases which he cites, either from the records or from his own practice and observation.1 He is a discriminating critic of developments of which he does not approve the neglect of the records, the length of the interrogatories administered to a defendant, the abuse of the procedure ore tenus. But he has all the reverence of the Tudor lawyer for the greatness and dignity of a court which, because it administered the personal and direct justice of the king without the excessive technicality which impaired the usefulness of other courts, could be called "Schola Reipublica"-the controller both of "all the other courts of justice and ministers thereof, and of all the subjects of the kingdom." At the same time he lets us see that in his day the court was beginning to excite a legal and a constitutional opposition which was almost unknown in the sixteenth century. In fact his consciousness of the growing opposition between the Star Chamber and the common law courts may have led him to gloss over some of its characteristics, and to suggest changes with a view to palliating a rivalry which was daily growing more acute. He entirely suppresses the fact that it used torture to extort confessions and information. $ He would like to limit the extraordinary powers which it sometimes assumed to really extraordinary cases; and the criticisms

9

8

1See e.g. Hudson, op. cit. p. 123, cited vol. i 343 n. 7; ibid 51, cited vol. i 513. 2 Above 161. Hudson, op. cit. 169, cited vol. i 500-501. 4" Therein sometimes there is a dangerous excess. For whereas the delinquent confesseth the offence suo modo, the same is strained against him to his great disadvantage. Sometimes many circumstances are pressed and urged to aggravate the matters which are not confessed by the delinquent; which surely ought not to be urged, but what he did freely confess in the same manner," Hudson, op. cit. 127-128.

5 Ibid 8, 9; cf. Lambard, Archeion 116, 117, 216, 217; similarly, as we have seen (vol. iv 261 n. 6), Bodin praised the good and speedy justice which the king could do personally in his own Council; cf. Esmein, Essays in Legal History (1913) 206.

Hudson, op. cit. 22-"Let this then suffice for the dignity of the court, that in the same, it matcheth with the highest that ever was in the world; in justice, it is, and hath been ever, tree from the suspicion of injury and corruption; in the execution of justice, it is the true servant of the commonwealth, and whatsoever it takes in hand to reform, it bringeth to perfection. And therefore it is well called Schola Reipublica, the discipline whereof doth not only enter all other courts of justice and ministers thereof, but all the subjects of the kingdom."

8 Below 185-187.

7 Ibid 49, cited vol. i 513-514. Hudson, op. cit. 127-128—“ This course of proceeding (the pressing of a confession against an accused person) is an exuberancy of prerogative, and therefore great reason to keep it within the circumference of its own orb"; "This great and sovereign arm is not to be stretched out in all cases, for that would destroy order and course, but must be rarely used, and in great and weighty causes," ibid 214, 215.