1619-20.] COKE AND BACON ON THE STAR CHAMBER. 66 93 honourable Privy Council, and the principal Judges of the realm, and such other Lords of Parliament as the King shall name. And they judge upon confession or deposition of witnesses: and the Court cannot sit for hearing of causes under the number of eight at the least. And it is truly said, Curia Cameræ stellatæ, si vetustatem spectemus, est antiquissima, si dignitatem, honoratissima. This Court, the right institution and ancient orders thereof being observed, doth keep all England quiet."1 This Court," says Bacon, writing in 1621,-" is one of the sagest and noblest institutions of this kingdom. For in the distribution of courts of ordinary justice . . . . . there was nevertheless always reserved a high and pre-eminent power to the King's Council, in causes that might in example or consequence concern the state of the commonwealth; which if they were criminal the Council used to sit in the chamber called the Star Chamber, if civil, in the white chamber, or Whitehall. And as the Chancery had the prætorian power for equity, so the Star Chamber had the censorian power for offences under the degree of capital. This Court of Star Chamber is compounded of good elements, for it consisteth of four kinds of persons-Councillors, Peers, Prelates, and Chief Judges. It discerneth also principally 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." 2 This Bacon wrote in his history of Henry VII., in mentioning the act passed in the 3rd year of that reign, "giving the Court of Star Chamber authority to punish divers misdemeanours." But his opinion of it as a politic institution appears still more clearly and unmistakably in his great work De Augmentis Scientiarum (pubin 1623), where among the specimens of books which are wanted, is the beginning of a treatise on "Universal Justice, or the Fountains of Law," the object of which should be to give a general character of administrative justice according to the true idea of it, drawn not from the institutions of any particular state, but from the universal laws of human society; by which, as by a pattern, particular kingdoms and commonwealths might prove and amend their own laws. Now one of the principal features in this model (so far as it is drawn out) is the institution of prætorian and censorian courts to supply the deficiencies of the laws; that is, to deal with cases for which the laws have failed to provide: and if his ideal description of the constitution and functions of the censorian court be compared with those of the Star Chamber as it was in his time, it may well be suspected that it sate for the picture. I may be asked indeed how it came that an institution which deserved such a character as this up to the end of James the First's 2 Works, vol. vi. p. 85. 1 Institutes, part iv. ch. 5. reign was swept away only sixteen years after, with universal consent, without a struggle, or a hope, or a regret. My answer is, that a King who was not otherwise strong enough to defy his people attempted to do it by means of the Star Chamber, and so provoked them to take it away from him. The impossibility of obtaining supplies from Parliament except upon conditions to which he could not submit had driven Charles to extraordinary ways of raising money. "For the better support of these extraordinary ways, and to protect the agents and instruments who must be employed in them, and to discountenance and suppress all bold inquirers and opposers, the Council-Table and Star-Chamber enlarge their jurisdictions to a vast extent, holding (as Thucydides said of the Athenians) for honourable that which pleased and for just that which profited.' And being the same persons in several rooms, grew both courts of law to determine right, and courts of revenue to bring money into the Treasury: the Council-Table by proclamations enjoining to the people what was not enjoined by the law, and prohibiting that which was not prohibited: and the Star-Chamber censuring the breach and disobedience to those proclamations by very great fines and imprisonment; so that any disrespect to any acts of state or to the persons of statesmen was in no time more penal, and those foundations of right by which men valued their security, to the apprehension and understanding of wise men, never more in danger to be destroyed." "The exorbitances of this court had been such (as hath been before touched) that there were very few persons of quality who had not suffered or been perplexed by the weight or fear of those censures and judgments. For having extended their jurisdiction from riots, perjuries, and the most notorious misdemeanours to an asserting all proclamations and orders of state; to the vindicating illegal commissions, and grants of monopolies (all which were the chief groundworks of their late proceedings) no man could hope to be longer free from the inquisition of that Court than he resolved to submit to those and the like extraordinary courses. And therefore there was an entire inclination to limit and regulate the proceedings of that Court: to which purpose a bill was brought in," etc. He then relates how a bill which was intended for the regulation of the Court grew by a kind of accident into a bill for its total abolition, was passed by the Commons contrary to all precedent upon a single reading without being committed, met with no opposition in the House of Lords, and so received the Royal Assent ;and concludes the story in words which show that as to the value of 2 Id. book iii. p. 400, 1 Clarendon, book i. p. 122. 1619-20.] CLARENDON ON ABOLITION OF STAR CHAMBER. 95 the institution when placed under proper regulation, he entirely agreed with Coke and Bacon. "Thus fell that high Court, a great branch of the Prerogative; having rather been extended and confirmed than founded by that Statute of the tenth year of K. Henry VII., for no doubt it had both a being and a jurisdiction before that time, though vulgarly it received date from thence; and whilst it was gravely and moderately governed, was an excellent expedient to preserve the dignity of the King, the honour of his Council, and the peace and security of the kingdom. But the taking it away was an act very popular; which it may be was not then more politic than the reviving it may be thought hereafter, when the present distempers shall be expired."2 If the abuses which were felt to be so intolerable and thought to be so incorrigible arose (as it seems they did) from the undue extension of the jurisdiction of the Court, it must have been for want of public rules defining its jurisdiction and regulating its procedure. And this defect Bacon seems to have observed already, and designed to remedy. For a set of "rules for the Star Chamber" which were to constitute a "durable pillar for the justice of this kingdom in perpetuity" can hardly have had any other object. In the beginning of June 1620, when there was no outcry against the Court,3 he wrote to Buckingham as follows: TO THE MARQUIS OF BUCKINGHAM. ↑ My very good Lord, I went to Kew for pleasure, but I met with pain. But neither pleasure nor pain can withdraw my mind from thinking of his Majesty's service. And because his Majesty shall see how I was occupied at Kew, I send him these papers of Rules for the 1 So printed. It should evidently be "third." 2 Clarendon, book iii. p. 401. 3 There were some symptoms however about this time of popular murmur against the extent of jurisdiction assumed; and it pointed to the very abuse which brought the Court to an untimely end. "Indeed," says Chamberlain, writing on the 8th of July 1620, "the world is now much terrified with the StarChamber, there being not so little an offence against any proclamation but is liable and subject to the censure of that court." He does not however mention any particular case in which its power seems to have been abused; and the question whether an offence against a proclamation was justly censurable depends upon the question whether it was a proclamation of the law, or only of the King's pleasure. But the existence of the murmur may have suggested to Bacon the application of the remedy. 4 Gibson Papers, vol. viii. fo. 126. Copy. No fly-leaf. Indorsed, "To Ld Marqs Buck. concerning orders and rules of the Star-Chamber. Sent by Mr. Huggans." Star-Chamber; wherein his Majesty shall erect one of the noblest and durablest pillars for the justice of this kingdom in perpetuity that can be; after by his own wisdom and the advice of his Lords he shall have revised them, and established them. The manner and circumstances I refer to my attending his Majesty. The rules are not all set down, but I will do the rest within two or three days. I ever remain Your Lordship's most obliged friend, FR. VERULAM, Canc. 9 June 1620. Whatever the form of the enclosed Rules may have been, the principles to which they were to give effect would no doubt be those which are laid down in the aphorisms concerning Censorian Courts of which (as the best supply of the lost paper which I can offer) I subjoin a translation. : APHORISM 32. Let there be Courts and jurisdictions which may decide according to the judgment and discretion of a good man, in cases where the rule of law fails. For the law (as has been said before) cannot be framed to meet all cases; but is adapted to such as generally occur. But Time, as was said of old, is the wisest of things, and the author and inventor every day of new cases. APHORISM 33. New cases occur both in criminal and civil causes; in criminal, requiring punishment; in civil, requiring relief. The Courts which deal with the former we call Censorian; those which deal with the latter Prætorian. APHORISM 34. Let the Censorian Courts have jurisdiction and power not only to punish new offences, but also to increase the punishments prescribed by the law for old offences, where the cases are heinous and enormous. For what is enormous is in a manner new. 1619-20.] JURISDICTION OF PRÆTORIAN COURTS. APHORISM 35. 97 Let the Prætorian Courts in like manner have power as well to give relief against the rigour of the law, as to supply the defect of the law. For if a remedy be due to one whom the law has forgotten, much more to one whom it has wounded. APHORISM 36. Let these Censorian and Prætorian Courts confine themselves. to cases enormous and extraordinary; and not encroach upon the ordinary jurisdictions: lest the thing tend rather to supplant the law than to supply it. APHORISM 37. Let these jurisdictions reside in the Supreme Courts only, and not be communicated to the Inferior. For the power to supply, extend, or moderate laws, comes very near to the power of making laws. APHORISM 38. But let not these Courts be committed to a single person; but consist of several. And let their decrees not go forth in silence; but let the Judges state their reasons, and that openly before the bystanders; so that the authority, which in respect of power is free, may yet be circumscribed in respect of fame and opinion. APHORISM 39. Let them not have authority to shed blood; nor let any capital sentence be pronounced by any court whatever except according to a law known and certain. God himself denounced death before he inflicted it: and no man ought to be deprived of his life, who did not know beforehand that he was sinning. against his life. APHORISM 40. In the Censorian Courts let there be a third vote allowed; that is, that the judges be not obliged either to acquit or condemn, but may likewise declare the fact not proven. And let there be power to inflict not a penalty only, but also a note or VOL. VII. H |