I. to Mary. CHAP. question, without either charging Lord Coke, Lord Hale, and other writers on the subject, with ignorance of what existed in Henry VII. their own age, or gratuitously supposing that an entirely novel tribunal sprung up in the sixteenth century, under the name of the star-chamber. It has indeed been often assumed, that a statute enacted early in the reign of Henry VII. gave the first legal authority to the criminal jurisdiction exercised by that famous court, which in reality was nothing else but another name for the ancient consilium regis, of which our records are full, and whose encroachments so many statutes had endeavoured to repress; a name derived from the chamber wherein it sat, and which is found in many precedents before the time of Henry VII., though not so specially applied to the council of judicature, as afterwards* The statute of this reign has a much more limited operation. I have observed in another place, that the coercive jurisdiction of the council had great convenience, in cases where the ordinary course of justice was so much obstructed by one party, through writs, combinations of maintenance, or overawing influence, that no inferior court would find its process obeyed; and that such seem to have been reckoned necessary exceptions from the statutes which restrain its interference. The act of 3 H. 7, c. 1, appears intended to place on a lawful and permanent basis the jurisdiction of the council, or rather a part of the council, over this peculiar class of offences; and after reciting the combinations supported by giving liveries, and by indentures or promises, pleasure to restrain any man from that The privy council sometimes met in the star-chamber, that no alien artificer shall keep more than two alien servants, and other matters of the same kind. This could no way belong to the court of starchamber, which was a judicial tribunal. It should be remarked, though not to our immediate purpose, that this decree was supposed to require an act of parliament for its confirmation; so far was the government of Henry VIII. from arrogating a legislative power in matters of private right. I. to Mary. the partiality of sheriffs in making pannels, and in untrue returns, CHAP. the taking of money by juries, the great riots and unlawful assemblies, which almost annihilated the fair administration of justice, Henry VII. empowers the chancellor, treasurer, and keeper of the privy seal, or any two of them, with a bishop and temporal lord of the council, and the chief justices of king's bench and common pleas, or two other justices in their absence, to call before them such as offended in the before mentioned respects, and to punish them after examination in such manner as if they had been convicted by course of law. But this statute, if it renders legal a jurisdiction which had long been exercised with much advantage, must be allowed to limit the persons in whom it should reside, and certainly does not convey by any implication more extensive functions over a different description of misdemeanours. By a later act, 21 H. 8, c. 20, the president of the council is added to the judges of this court; a decisive proof that it still existed as a tribunal perfectly distinct from the council itself. But it is not styled by the name of star-chamber in this, any more than in the preceding statute. It is very difficult, I believe, to determine at what time the jurisdiction legally vested in this new court, and still exercised by it forty years afterwards, fell silently into the hands of the body of the council, and was extended by them so far beyond the boundaries assigned by law, under the appellation of the court of star-chamber. Sir Thomas Smith, writing in the early part of Elizabeth's reign, while he does not advert to the former court, speaks of the jurisdiction of the latter as fully established, and ascribes the whole praise, and to a certain degree it was matter of praise, to cardinal Wolsey. The celebrated statute of 31 H. 8, c. 8, which gives the king's proclamations, to a certain extent, the force of acts of parliament, enacts, that offenders convicted of breaking such proclamations before certain persons enumerated therein, (being apparently the usual officers of the privy council, together with some bishops and judges,) “in the star-chamber or elsewhere," shall suffer such CHAP. penalties of fine and imprisonment as they shall adjudge. I. to Mary. "It is the effect of this court," Smith says, " to bridle such stout noblemen Henry VII. or gentlemen which would offer wrong by force to any manner of men, and cannot be content to demand or defend the right by order of the law. It began long before, but took augmentation and authority at that time that cardinal Wolsey, archbishop of York, was chancellor of England, who of some was thought to have first devised that court, because that he, after some intermission, by negligence of time, augmented the authority of it*, which was at that time marvellous necessary to do to repress the insolency of the noblemen and gentlemen in the north parts of England, who being far from the king and the seat of justice, made almost, as it were, an ordinary war among themselves, and made their force their law, binding themselves, with their tenants and servants, to do or revenge an injury one against another as they listed. This thing seemed not supportable to the noble prince Henry VIII.; and sending for them one after another to his court, to answer before the persons before named, after they had remonstrance showed them of their evil demeanour, * Lord Hale thinks that the jurisdiction of the council was gradually "brought into great disuse, though there remain some straggling footsteps of their proceedings till near 3 H. 7." p. 38. "The continual complaints of the commons against the proceedings before the council in causes civil or criminal, although they did not always attain their concession, yet brought a disreputation upon the proceedings of the council, as contrary to Magna Charta and the known laws." p. 39. He seems to admit afterwards, however, that many instances of proceedings before them in criminal causes might be added to those mentioned by lord Coke, p. 43. The paucity of records about the time of Edward IV. renders the negative argument rather weak; but from the expression of sir Thomas Smith in the text, it may perhaps be inferred, that the council had intermitted in a considerable degree, though not absolutely disused, their exercise of jurisdiction for some time before the accession of the house of Tudor. Mr. Brodie, in his History of the British Empire under Charles I., i. 158, has treated at considerable length, and with much acuteness, this subject of the antiquity of the star-chamber. I do not coincide in all his positions; but the only one very important is that wherein we fully agree, that its jurisdiction was chiefly usurped, as well as tyrannical. I will here observe, that this part of our ancient constitutional history is likely to be elucidated by a friend of my own, who has already given evidence to the world of his singular competence for such an undertaking, and who unites, with all the learning and diligence of Spelman, Prynne, and Madox, an acuteness and vivacity of intellect, which none of them possessed. I. to Mary. and been well disciplined, as well by words as by fleeting (con- CHAP. finement in the Fleet prison) a while, and thereby their pride and courage somewhat assuaged, they began to range themselves in Henry VII. order, and to understand that they had a prince who would rule his subjects by his law and obedience. Since that time, this court has been in more estimation, and is continued to this day in manner as I have said before*." But as the court erected by the statute of Henry VII. appears to have been in activity as late as the fall of cardinal Wolsey, and exercised its jurisdiction over precisely that class of offences which Smith here describes, it may perhaps be more likely that it did not wholly merge in the general body of the council till the minority of Edward, when that oligarchy became almost independent and supreme. It is obvious, that most, if not all, of the judges in the court held under the statute were members of the council; so that it might, in a certain sense, be considered as a committee from that body, who had long before been wont to interfere with the punishment of similar misdemeanours. And the distinction was so soon forgotten, that the judges of the king's bench in the 13th of Elizabeth cite a case from the year book of 8 H. 7. as concerning the star-chamber," which related to the limited court erected by the statutet. 66 In this half barbarous state of manners, we certainly discover an apology, as well as motive, for the council's interference; for it is rather a servile worshipping of names than a rational love of liberty, to prefer the forms of trial to the attainment of justice, or to fancy that verdicts obtained by violence or corruption are at * Commonwealth of England, book 3, c. 4. We find sir Robert Sheffield in 1517 "put into the Tower again for the complaint he made to the king of my lord cardinal." Lodge's Illustrations, i. p. 27. See also Hall, p. 585, for Wolsey's strictness in punishing the "lords, knights, and men of all sorts, for riots, bearing, and maintenance." + Plowden's Commentaries, 393. In the VOL. I. year-book itself, 8. H. 7. pl. ult. the word I to Mary. CHAP. all less iniquitous, than the violent or corrupt sentences of a court. But there were many cases, wherein neither the necessity of cirHenry VII. cumstances, nor the legal sanction of any statute, could excuse the jurisdiction habitually exercised by the court of star-chamber. Lord Bacon takes occasion, from the act of Henry VII. to descant on the sage and noble institution, as he terms it, of that court, whose walls had been so often witnesses to the degradation of his own mind. It took cognizance principally, he tells us, of four kinds of causes, " forces, frauds, crimes various of stellionate, and the inchoations or middle acts towards crimes capital or heinous, not actually committed or perpetrated*." Sir Thomas Smith uses expressions less indefinite than these last, and specifies scandalous reports of persons in power, and seditious news, as offences which they were accustomed to punish. We shall find abundant proofs of this department of their functions in the succeeding reigns. But this was in violation of many ancient laws, and not in the least supported by that of Henry VII.† A tribunal so vigilant and severe as that of the star-chamber, proceeding by modes of interrogatory unknown to the common law, and possessing a discretionary power of fine and imprisonment, was easily able to quell any private opposition or contumacy. We have seen how the council dealt with those who refused to lend money by way of benevolence, and with the juries who found verdicts that they disapproved. Those that did not yield obedience to their proclamations were not likely to fare better. I know not whether menaces were used towards members of the commons who took part against the crown; but it * Hist. of H. 7. in Bacon's works, ii. p. 290. (fol. edit.) + The result of what has been said in the last pages may be summed up in a few propositions. 1. The court erected by the statute of 3 Henry VII. was not the court of star-chamber. 2. This court by the statute subsisted in full force till beyond the middle of Henry VIII.'s reign, but not long afterwards went into disuse. 3. The court of star-chamber was the old consilium ordinarium, against whose jurisdiction many statutes had been enacted from the time of Edward III. 4. No part of the jurisdiction exercised by the star-chamber could be maintained on the authority of the statute of Henry VII. |