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which he makes upon its procedure1 were perhaps animated by a desire to check practices which were making it unpopular. The picture which he drew of the court is not quite an accurate picture of its later years. But it is not the least valuable of its features that it is drawn at the close of the period when men generally thought of the court as "one of the sagest and noblest institutions of the country," and at the beginning of the period in which they were beginning to regard it as a court which attempted to maintain royal absolutism, and to overthrow the constitution, by the cruelty of the punishments which it inflicted upon its political opponents.
Of the other treatises in which the court is described the most notable are those of Lambard and Crompton. Lambard devotes a large part of his Archeion to the court of Star Chamber.3 Like Hudson he approaches it from point of view of the Tudor statesman. He defends its antiquity, its wide jurisdiction, and its necessity to the well-being of the state." He gives us a little information about its procedure, and officials, speaking more favourably of the procedure ore tenus than Hudson. That the information which it contains is trustworthy is clear from the character of Lambard's other works, and from the fact that this part of his treatise probably owed a good deal to William Mills, the clerk of the court. Naturally his treatment is directed more to the political than to the strictly legal aspect of the court. Crompton's chapter on the Star Chamber in his book on the Jurisdiction of Courts 10 approaches the subject from a point of
2 Bacon, History of Henry VII.
1 Above 165. Archeion, or a commentary upon the High Courts of Justice in England 88-217; for this work see vol. iv 117-118; I have used the edition of 1635. There is also another short tract printed in Hearne's Curious Discourses ii 277-309 entitled "Camera Stellata, or an explanation of the most famous court of Star Chamber; together with an account of the offences there punishable; the fees payable, and the orders for proceedings therein "; Miss Scofield, in the App., pp. 81-82, to her book on the Star Chamber, gives some reason for thinking that, though stated in Hearne's print to be written by Mr. Tate, it was really written by Lambard, and was an early edition of the account in the Archeion; a MS. authority cited by her (Add. MSS. 4521 Art. 7) attributes the work to Lambard.
4 Pp. 110-176, 194-205.
Pp. 99-102, 138-143, 205-217.
Pp. 211-213-"So if either the necessity of the cause doe require, that the guilty party bee speedily committed or charged, or if hee bee deprehended in flagranti crimine . . . or if the offence doe onely or chiefly concerne her Majesty, or if the circumstances thereof be such as may not seemly abide the blazing of a Bill, and then the offender shall, upon Examination, freely and without torture confess the body and substance of the crime that is verbally laid to his charge, surely neither he nor any for him can justly complaine of injustice in that he is sentenced without Bill and answere in writing."
"At p. 193-194 he speaks of him as "Mine ancient favourer," and a man "by whose good labours and friendships I was the better enabled to write some part of this present discourse."
10 L'Authoritie et Jurisdiction des Courts (ed. 1592) ff. 29-41b; for this book see vol. iv 212.
view which is quite different from that of either Hudson or Lambard. It is the book of a common lawyer to whom details as to the procedure and the jurisdiction of the court are more interesting than large questions as to its position in the state, or its legal title to exercise jurisdiction. Having just glanced at and rejected the view that the court owed its origin to, and that its jurisdiction was limited by, the Act of 1487, he at once plunges into a list of the statutes which affected it, and of the cases which showed the kind of matters which came before it. His work has none of the literary form which distinguishes Hudson's and Lambard's books. It is a useful collection of concrete facts and instances put together in somewhat haphazard fashion from statutes, abridgments, year books, law reports, books of entries, legal text books, chronicles, and his own experience.2
Of shorter accounts of the court I need only notice Smith's chapter in his book on the Republic of England, and Coke's chapter in his fourth Institute. Smith of course is concerned with the political aspect of the court, and it is interesting to note that, in his opinion, it gained the political position, which it occupied in his day, in the earlier part of Henry VIII.'s reign. Coke's account is a useful summary of the history, powers, and political position of the court put together without any attempt at literary arrangement. It is important, both because it embodies a good deal of the experience which Coke acquired as attorney-general and as a judge of the court, and because it illustrates the attitude which a typical common lawyer could adopt to the court, before the constitutional controversies of the seventeenth century had convinced many of the common lawyers of the illegality of the powers which it was exercising."
(2) The influence of the work of the Star Chamber on the development of English law.
Before the Star Chamber was abolished it had already begun to influence the development of the English criminal law, and certain of those branches of the law which lie on the border line between crime and tort. This influence was felt most strongly in the latter half of the seventeenth century, because the abolition of the court had made it necessary for the courts of common law to adopt a large number of the new rules of law which it had either originated or developed. Therefore a consideration of the
1 ff. 29b, 30.
$ Bk. iii c. 4.
2 See ff. 32, 32b.
4 Fourth Instit. c. 5.
5" This court began long before, but took great augmentation and authoritie at that time that Cardinall Wolsey, Archbishop of Yorke was Chauncellor of Englande. ... Sith that time this court hath beene in more estimation and is continued to this day in manner as I have said before," Bk. iii c. 4.
Fourth Instit. p. 65, cited vol. i 507-508.
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; 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.
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. 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 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.
428 Henry VIII. c. 15; vol. i 550-551; vol. iv 260.
5 Vol. ii 414-415; vol. iii 623.
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; 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.