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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

wise and salutary purposes, was, in the end, like the evoking the spirit of mischief without a corresponding power in reserve to lay it, or check its excesses if inclined to abuse its authority. Instead, therefore, of its power becoming weaker, as the occasion which called it into being passed away, it continued to draw to itself new elements of strength, while it enlarged the extent of its jurisdiction and the sphere of its action. It is not easy at this day to trace the steps through which it attained the summit of its power, though it is not difficult to understand how it could be made a most potent engine of despotic rule and bigoted intolerance in the hands of ambitious leaders and unscrupulous prelates, such as flourished during the reigns of Henry VIII., Elizabeth, and the first two Stuarts. In the 21st of Henry VII., the President of the Council was added to this court, showing that hitherto the two bodies had been kept distinct in their action. It underwent changes during the administration of Wolsey, and in the time of James, we are told, all the peers had acquired a right somehow to sit as members of this court; and Barrington states the number of its judges at from twenty-six to forty-two. Sir Thomas Smith also states that Cardinal Wolsey greatly extended its powers, in order to curb some of the nobility in the north of England, and that in his time those who were prosecuted in this court were generally too stout for the ordinary course of justice. It was not, however, a court of exclusively criminal jurisdiction, though it was chiefly in the exercise of its criminal powers that it has come down in history to the present day. The Lord Chancellor usually presided at its meetings, though instances occurred, especially during the reign of James, when the king himself sat and presided at the trials of cases.

One of the strangest circumstances that gave to the crown a hold and control over the action of this court was, that all its principal officers received their appointment and held their place by the power of the king, while the odium of an unjust judgment before the public was divided among a large and numerous body of judges. Nor were the proceedings of the court so far public as to render the action of any particular member obnoxious to public censure.

The mode of its proceedings, moreover, was particularly well adapted to the purposes of injustice and unfair advantage. One of the most important rights secured to an Englishman by the com

mon law was, that he should not be obliged to accuse himself in a court of justice, if charged with the commission of a crime. Torture, which was in its very nature repugnant to the spirit of the common law, and only to a limited extent obtained a place in the administration of justice in England, was often resorted to to compel confession in the courts of the Continent. But, in utter violation of this cherished right, the Star Chamber required the party charged with an offence to answer fully in relation to the same, upon oath, to interrogatories the most searching and inquisitorial. In the account which we have of the prosecution of Lilburne, a famous Puritan in the time of Charles I., the proceedings seem to have commenced with interrogatories designed to extort from him a confession of the very matters upon which they intended to found the charges upon which he was to be tried. When called before this body, though but a young man, hardly twenty years of age, he was set upon by all manner of threats and suggestions by the various members of the court, to induce him to submit to the oath. He resolutely refused to answer; and was whipped, branded, and committed to close prison, and denied all access to his friends, upon the ground that, by such refusal, he had been guilty of a contempt of court.

We may have occasion to recur to this case again, and have referred to it here as illustrating this part of the mode of prosecuting offenders in this court. Another objectionable feature in its mode of investigating causes was in the form of examining witnesses. In carrying out the spirit of trial by jury, all proceedings are in open court, including the examination of witnesses in the presence of the parties and of the jurors, who are to weigh the degree of credit to which they are entitled. Every one familiar at all with the trial of causes knows how vastly superior in eliciting the truth is such an oral examination of witnesses in the presence of the court to an ex parte one taken in the form of depositions. And yet the latter was the mode in which all evidence was taken which was submitted to this court. Indeed, so open is such a course of proceeding to censure and reproach, that a writer who was himself a practitioner in this court, and sufficiently disposed to eulogize it wherever it could claim any advantage or superiority over others, remarks: "Now, concerning the persons of witnesses examined in court, it is a great imputation to our English courts that witnesses are privately

produced, and how base or simple soever they be, although they be tested diabolases, yet they make as good a sound, being read out of paper, as the best. Yea, though a lewd and beggarly fellow take upon him the name and person of an honest man, and he be privately examined, this may be easily overpassed, and not easily found out." This obvious violation of the first principle of justice seems to have been tolerated to its full extent for more than a hundred years, when Lord Ellesmere, as chancellor, passed an order by which every witness who was to be examined in court should be showed to the attorney of the other side, and his name and place of abode delivered, to the end that he might be known to be the same person, and that the other side might examine him if he pleased. But he might not, at any time, examine as to the credit of the witnesses offered against him, or notify the court what their condition was as to credibility; for that causes being for the king, if witnesses' lives should be so ripped up, no man would willingly be produced to testify." And so far was this principle carried in favor of the crown, that it was held by "many of the circuits of judges," that "a witness for the king, upon an indictment, shall not be questioned for perjury; yea, this court hath ordered a great reward to witnesses in this court, by yielding their testimonies for the king;" or, in other words, one of the usual modes of corrupting the fountains of justice in this court was by means of hired informers, who might commit perjury with impunity.

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The tendency of a court thus constituted, and thus irresponsible, was to extend its jurisdiction and arrogate to itself new powers; and so far was this practically carried, that it was difficult to draw any line short of crimes that were capital, which limited the class or character of offences against the power or prerogative of the government, of which this court did not take cognizance. Nor would it allow any one to question its authority. By the rules of the court, it seems, whoever was charged with an offence was required to put in an answer to the information against him in writing, signed by two counsel; and, unless this rule was complied with, it was deemed to be a confession of the charge, although the defendant was himself in court, and orally denied his guilt. Thus in the case of the famous Prynne, whose treatment in this court will be further noticed, he offered his answer signed by one of his counsel, and applied to the court

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