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ing the choice of Electors. Congress could also provide by law that such a decision, or, in its absence, the decision of the State canvassing board, or the certificate of the Governor, as to the persons chosen Electors, should govern in the counting required by the Constitution. And, if the judicial power of the United States can interfere in any case, provision might easily be made for a prompt review of the decisions of the State courts by the Supreme Court of the United States, so that before the counting of the Electoral votes every dispute concerning title to the office of Elector would be lawfully disposed of. The railway and telegraph have made intercommunication with every part of the Republic so speedy and perfect, that four months for determining such disputes, in advance of the casting of the Electoral votes, are equal to a year of earlier times.
It may be thought that, in high party excitements, both when the two Houses of Congress are impressed with the same bias, and when they are in opposition, preliminary decisions will be disregarded; and that other questions, such as the right of a particular State to vote at all, or the official character of the person in a State who certifies the Electors, &c., will arise on the occasion of counting the Electoral votes, and thus there will still be danger. All this doubtless may happen; but under any system of government dangers of this sort will always exist, and legislation will have done its utmost when it has reduced these dangers to a minimum.
If it were possible to find or to constitute one single tribunal, having final power to count the votes and declare the result after the States bad, through their tribunals, disposed of disputes, being the farthest possible removed from the heat of political prejudice, and possessing from its character and constitution the general confidence of the country, the best method of ascertaining who had been elected President would be reached. It is of course impossible in a free country that any body of persons, otherwise fit to compose such a tribunal, can be found who will not have some degree of prejudice. They will usually wish that one person rather than another may be elected ; but almost every step in government is attended with this element of error.
The experience of governments seems to have proved that, on the whole, judicial tribunals are best calculated to hear and decide disputed questions of law and fact, although they may involve inquiries extending into the domain of politics and the decision of the fact of an election.
With the exception of decisions upon the elections of members of legislative assemblies, which have almost universally been lodged with the assemblies themselves, the judicial tribunals have, in nearly every civilized country, been clothed with and exercised such powers with beneficent effect. In nearly, if not quite every State of the Union, such powers are continually exercised in respect of rights to hold office; and in few, if any of them, it is believed, does any exception exist of the office of Chief Magistrate.
If the whole power of deciding upon Presidential elections and of providing for such decision were removed from Congress to a tribunal that could not, like it, change the law according to party emergency, or in obedience to any spasm of popular clamor, it might be better. But the proposal to do this by so amending the Constitution as to impose the duty upon the Supreme Court, was lately defeated in the Senate by a large majority. It may safely be predicted, however, that from the causes which have been referred to, and with the increase of the number of the States and of population, and so of the number of Senators and Representatives, the time is not far distant when the decision of such questions, judicial in their nature, as are left to the national authority after the States have acted in a disputed Presidential election, will be withdrawn entirely from the political department of the government, and lodged where, according to the philosophy of free governments, it ought to be — with the judiciary. All such questions, as they affect the right of the people at large, as well as private rights, and depend exclusively upon pre-existing laws and events, and require for their solution only a discovery and declaration of them, contain no element for the discretion of the legislator or the policy of the statesman. They are just as essentially judicial as any of those that belong to the judicial branch of the government. The means of preserving the purity and independence of the judges, and punishing their corruption, are always at hand, and are much more effectual than any that can be applied to the members of legislative assemblies; for the legislative branch of the government can impeach and remove wicked judges, but cannot punish the illegal or corrupt action of majorities in itself.
GEO. F. EDMUNDS.
THE COURT OF STAR CHAMBER.
FEW things are more intimately associated with the despotism of the times of the Tudors and the Stuarts, in the history of England, than the name and transactions of the Star Chamber Court. It has become a generic term to denote a system of arbitrary measures, where the forms of judicial proceedings are made the means of perpetrating acts of injustice, or of consummating schemes of oppression and wrong. And yet comparatively few, at this day, have ever taken the trouble to trace the history of this court, or to inquire why its very name has excited the odium of successive ages.
It is proposed in the following pages to attempt to sketch, as briefly as the nature of the subject admits, an outline of the history, character, and powers of this court, commencing, as it did, with no bad purposes, and, after being perverted to an instrument of despotic power through a succession of administrations, being extinguished at last as one of the acts of concession made by Charles to the demands of an injured and indignant nation.
In order to understand the history of this court, and the grounds upon which it became so odious to the English people, through its acts of cruelty and injustice, we must go back to a condition of the government whose very history is but little better than traditional.
From a very early period there were certain high officers in the State, and men of influence and power, who were called upon by the king to act as his council or advisers in matters of government. One of these bodies, which seems to have stood in more confidential relation to the crown than the others, was known as the Privy Council, including a portion, if not all, of the peers of the realm, with the Chancellor and other civil and judicial officers of the State. The king being considered the fountain of justice, it was a common thing for persons who felt themselves aggrieved by others to apply to him for redress by way of petition. In this way matters of judicial inquiry, as well as those of royal discretion, came to be submitted to the action of this council, and a jurisdiction was thus exercised which properly belonged to the courts of justice only.
The forms of proceeding in such cases were such as were in use in the Court of Chancery, the Chancellor being the principal officer in the council, and questions were determined without the intervention of a jury. In this, however, the sense of the people was disregarded, if not actually outraged, since trial by jury was one of those traditional rights to which they resolutely clung through all the changes in their government. Attempts were accordingly made, from time to time, to retain the administration of justice within the known and defined channels of the common law and the principles of Magna Charta. In the 25th of Edw. III., an act of Parliament, which, among other things, defined the crime of treason, forbade that any should " be taken by petition or suggestion to the king or his council, unless it be by indictment or presentment, or by writ original at the common law; nor shall be put out of his franchise or freehold, unless he be duly put to answer, and forejudged of the same by due course of law.” But in the unsettled state of the government, and the inability of the people to contend against combinations of men in power, these efforts to restrain the exercise of judicial functions by the Privy Council not only proved unavailing, but it was deemed politic to clothe them with greater and more defined powers under a somewhat modified form of organization.
The reason for this, and for departing so far from the genius and prevailing spirit of the common law, as to create an irresponsible court with such powers, in which the common-law forms of proceedings, and above all the right of trial by jury, were discarded, is to be sought in the troubled state of the times, and the undue preponderance which factions and unprincipled nobles and men in power were able to bring to bear upon the administration of justice. There were early laws against champerty and maintenance through unlawful combinations to obstruct the course of justice and deprive suitors in court of their rights by corruption or intimidation, but these were openly violated with impunity. Men dared not to pursue their rights in the ordinary courts of justice. The security of a juror's oath was denied them, in the unblushing manner in which bribes and threats
were resorted to by such as had power and influence over the proceedings of these courts. Coke, speaking of this court and the reason of its creation, says: “Seeing the proceeding according to the laws and customs of this realm cannot by one rule of law suffice to punish in every case the exorbitancy and enormity of some great and horrible crimes and offences, and especially of great men, this court dealeth with them, to the end that the medicine may be according to the disease, and the punishment according to the offence; ut poena ad paucos, metus ad omnes perveniat, without respect of persons, be they publick or private, great or small.”
To reach a mischief which had grown so intolerable, and to cope with the power and influence of the offenders in high places, with whom it was necessary to contend, a court was created by the act of 3 Henry VII. (about A.D. 1500), made up of the highest officers in the kingdom, embracing theoretically the king himself, who was deemed to be the fountain of justice, to which was confided almost unlimited power and discretion over a large and undefined class of offences of a public, and many of them of a political, character, without the check of a jury, and subject to no revision by the way of appeal. It was, however, rather the grafting of new powers upon those before exercised by the Privy Council, than the creation of a new court. It was not, in terms, designated the Star Chamber, nor was it spoken of under that name in any act of Parliament until the 19 Henry VII. The preamble of the act creating this court recites, among the causes for such a measure, the combinations which had been formed for the obstruction of justice, the partiality of sheriffs in making panels, and in untrue returns, the taking money by jurors, and the great riots and unlawful assemblies which served to defeat the fair administration of justice. It then proceeds to name the Lord Chancellor, the Treasurer, the Keeper of the Privy Seal, or any two of them, with a bishop and temporal lord of the council, and the Chief Justices of the King's Bench and Common Pleas, or two other justices in their absence; and empowers them to call before them such as offended in the foregoing respects, and to punish them, after examination, in such manner as if they had been convicted by course of law.
A court thus constituted, with powers so broad, and a discretion unlimited by prescribed rules, though called into existence for