Wednesday, August 20, 2014

The Star Chamber’s Power in Past Reigns

Featuring Henry Hallam and Thomas Macaulay

Introduction to our series The End of the Star Chamber:
The English Civil War decided whether England would be Constitutional Monarchy or an Absolute Monarchy like Spain already was and France became. The political struggles set the ground for the military ones and the eventual outcome after Cromwell’s government ended. Terminating the Star Chamber was a key milestone in that political struggle.

Part 1 of this series is by Henry Hallam from his Constitutional History of England. Part 2 is by Lord Macaulay. Both were Whig historians in the 19th. century. I’ve always admired Macaulay’s History of England even though it only covered the reigns of James II to William III. More is more. The more details, the more involved the reader can become in the time and place of the past. Macaulay made some mistakes in his narrative of Marlborough which led Winston Churchill to call him a “liar”. Sigh!

And now, Part 1 by Henry Hallam

Time: 1641
Place: London

Long Parliament
The Long Parliament
The levies of tonnage and poundage without authority of Parliament; the exaction of monopolies; the extension of the forests; the arbitrary restraints of proclamations; above all, the general exaction of ship-money, form the principal articles of charge against the government of Charles, so far as relates to its inroads on the subject's property. These were maintained by a vigilant and unsparing exercise of jurisdiction in the Court of Star-chamber. It was the great weapon of executive power under Elizabeth and James; nor can we reproach the present reign with innovation in this respect, though in no former period had the proceedings of this court been accompanied with so much violence and tyranny. But this will require some fuller explication.

I hardly need remind the reader that the jurisdiction of the ancient Concilium Regis Ordinarium, or Court of Star-chamber, continued to be exercised, more or less frequently, notwithstanding the various statutes enacted to repress it; and that it neither was supported by the act erecting a new court in the 3d of Henry VII nor originated at that time. The records show the Star-chamber to have taken cognizance both of civil suits and of offences throughout the time of the Tudors. But precedents of usurped power cannot establish a legal authority in defiance of the acknowledged law. It appears that the lawyers did not admit any jurisdiction in the council, except so far as the statute of Henry VII was supposed to have given it. "The famous Plowden put his hand to a demurrer to a bill," says Hudson, "because the matter was not within the statute; and, although it was then overruled, yet Mr. Sergeant Richardson, thirty years after, fell again upon the same rock, and was sharply rebuked for it." The chancellor, who was the standing president of the Court of Star-chamber, would always find pretences to elude the existing statutes, and justify the usurpation of this tribunal.

The civil jurisdiction claimed and exerted by the Star-chamber was only in particular cases, as disputes between alien merchants and Englishmen, questions of prize or unlawful detention of ships, and, in general, such as now belong to the court of admiralty; some testamentary matters, in order to prevent appeals to Rome, which might have been brought from the ecclesiastical courts; suits between corporations, "of which," says Hudson, "I dare undertake to show above a hundred in the reigns of Henry VII and Henry VIII, or sometimes between men of great power and interest, which could not be tried with fairness by the common law"; for the corruption of sheriffs and juries furnished an apology for the irregular, but necessary, interference of a controlling authority. The ancient remedy, by means of attaint, which renders a jury responsible for an unjust verdict, was almost gone into disuse, and, depending on the integrity of a second jury, not always easy to be obtained; so that in many parts of the kingdom, and especially in Wales, it was impossible to find a jury who would return a verdict against a man of good family, either in a civil or criminal proceeding.

The statutes, however, restraining the council's jurisdiction, and the strong prepossession of the people as to the sacredness of freehold rights, made the Star-chamber cautious of determining questions of inheritance, which they commonly remitted to the judges; and from the early part of Elizabeth's reign they took a direct cognizance of any civil suits less frequently than before, partly, I suppose, from the increased business of the court of chancery and the admiralty court, which took away much wherein they had been wont to meddle, partly from their own occupation as a court of criminal judicature, which became more conspicuous as the other went into disuse. This criminal jurisdiction is that which rendered the Star-chamber so potent and so odious an auxiliary of a despotic administration.

The offences principally cognizable in this court were forgery, perjury, riot, maintenance, fraud, libel, and conspiracy. But, besides these, every misdemeanor came within the proper scope of its inquiry; those especially of public importance, and for which the law, as then understood, had provided no sufficient punishment; for the judges interpreted the law in early times with too great narrowness and timidity, defects which, on the one hand, raised up the overruling authority of the court of chancery as the necessary means of redress to the civil suitor who found the gates of justice barred against him by technical pedantry, and on the other, brought this usurpation and tyranny of the Star-chamber upon the kingdom by an absurd scrupulosity about punishing manifest offences against the public good.

Thus corruption, breach of trust and malfeasance in public affairs, attempts to commit felony, seem to have been reckoned not indictable at common law, and came, in consequence, under the cognizance of the Star-chamber. In other cases its jurisdiction was merely concurrent; but the greater certainty of conviction and the greater severity of punishment rendered it incomparably more formidable than the ordinary benches of justice. The law of libel grew up in this unwholesome atmosphere, and was moulded by the plastic hands of successive judges and attorneys-general. Prosecutions of this kind, according to Hudson, began to be more frequent from the last years of Elizabeth, when Coke was attorney-general; and it is easy to conjecture what kind of interpretation they received. To hear a libel sung or read, says that writer, and to laugh at it and make merriment with it, have ever been held a publication in law. The gross error that it is not a libel if it be true, has long since, he adds, been exploded out of this court.

Continued on Sunday, August 24th.

More information here.

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