A Concise History of the Common Law. Theodore F. T. Plucknett

creating the system of equity.

THE ORIGIN OF THE STAR CHAMBER

      It was only natural that petitions concerning civil matters should be treated in this way. Many petitions, however, raised questions of a criminal character. As we pass through the fifteenth century, disorder and oppression by local magnates constantly becomes more common; petitioners are continually complaining of the lawlessness of their great neighbours, and it is perfectly evident that the courts of common law were helpless in face of this situation. Their procedure was too slow and too mild; juries and sometimes judges were intimidated by large forces of retainers who constituted the private armies of unruly subjects. With such grave matters the Council alone was powerful enough to deal. Peremptory commands to appear before the Council were the only effective procedure. Consequently the Council retained control of these graver matters in its own hands. The Council’s original jurisdiction, therefore, shows signs of dividing into two portions, most of its civil jurisdiction being exercised in its name by the Chancellor, while the rest, together with its criminal powers, was exercised at the Council board.

      When, finally, the House of Lancaster had fallen and the Yorkist, Edward IV, had established himself upon the throne, important changes took place in the Council. As far as we can judge (the affair is somewhat mysterious) what happened was this:¹ the Council lost the power of controlling the administration which it had exercised so rashly under the Lancastrian kings. Edward IV retained in his own hands the control of the State machinery, which he operated through officials responsible to him alone. The Council’s attempt to become the supreme power in the State failed with the fall of the House of Lancaster. The evidence which survives of the Council’s activity under Edward IV is very scanty indeed; yet on the other hand we know that the Council was a very large body. It would seem that Edward IV deliberately confined its activities to the sort of business we have mentioned, namely, the handling of petitions, especially when those petitions raised questions of public order, and the administration of criminal law. Of the many rooms which the Council used in the fifteenth century its favourite seems to have been the Star Chamber, and from the reign of Edward IV onwards it seems that the Council is steadily turning into the Court of Star Chamber.

Not until the reign of Henry VIII do we find the deliberative and executive functions of the old Council revive. But by this time the old Council had become the Court of Star Chamber with a large and regular judicial business. Henry VIII, therefore, had to create a new institution, the Privy Council. When the Court of Star Chamber was abolished in 1641, the old mediaeval Council at last came to an end, and there only remained Henry VIII’s recent invention, the Privy Council.

      A word must be said of the famous act of 1487.¹ Old writers took it as the statutory origin of the Court of Star Chamber, principally on the strength of a marginal title on the statute roll which reads “pro camera stellata”. So firm was this belief that when the court was abolished in 1641 the act of 1487 was repealed. It has now been shown that this act has no connection with the Star Chamber, and that the marginal title is an addition in a later handwriting. The act’s principal effect was to emphasise the separation between the civil jurisdiction of the Chancery and the criminal jurisdiction of the Council, for it called upon the principal officers of State² to exercise wide powers for the repression of serious crime—and it is certain that they had already exercised these powers for many years. In short, the act was one more public threat by the government, which proclaimed its intention of vigorously enforcing the law by a summary procedure in the Council.³

      Nevertheless, as far as the reign of Henry VII is concerned,

      “the most striking characteristic of the court was its moderation. It was surely the mildest-mannered tribunal that ever sentenced a criminal, considerate in its procedure, gentle in its punishments, and failing altogether to live up to the reputation of ruthlessness that the Star Chamber has enjoyed since the seventeenth century.”⁴

STAR CHAMBER AND STATUTE LAW

The tradition which associated the Star Chamber with the act of 1487 has some significance, however, for it emphasises the importance of the problem of enforcing statute law. The fifteenth-century government tried to check the growth of disorder and corruption by enacting heavy penalties against persons guilty of these offences. But statutes are unavailing without enforcement, and they had little effect until the Council and the Star Chamber took the matter in hand. It thus came about that the Star Chamber was largely concerned with the summary enforcement of legislation. Simultaneously, attempts were made from time to time to provide special courts for the enforcement of particular groups of statutes. The act of 1487 is an example of this policy, and the similarity of the means and the end may well account for the rise of the opinion that the act was the origin of the court, instead of both being independent attempts to enforce the same body of statute law.

      Indeed, it was becoming a common opinion that drastic legislation can only be effectively enforced by courts erected ad hoc, and untrammelled by the ancient common law traditions. An early example is a statute of 1362 which contains the following remarkable, but little-known provision:

      “Item, if any man feels himself grieved contrary to any of the articles above written or any others contained in divers statutes, if he will come into the chancery (or someone on his behalf) and make his complaint, he shall now have a remedy there by force of the said articles and statutes without suing anywhere else to have redress.”¹

      If the provisions of this and similar acts had been consistently followed, the Chancery would have become a court for the application of statute law, and particularly that of a constitutional, international or commercial character. The act of 1487, as we have seen, set up a special body to deal with statute law of a criminal character, and this was amended in 1529.² In 1535 or 1536 it was proposed to empower the group mentioned in the act of 1487 to hear charges of corruption against certain public officials,³ and still more interesting is a bill of about the same date which would have set up a court of “conservators of the common weal” to enforce all statutes passed since 1485.⁴ Of the greatest examples of this tendency, the financial courts of Henry VIII, we have already spoken: one other, the Court of High Commission, will be mentioned later.

      The connection of the Star Chamber with the numerous statutory offences created during the fifteenth and sixteenth centuries was carried a step further when, under the Tudors and Stuarts, it undertook to enforce royal proclamations. The legal questions involved belong to constitutional history, where they had much to do with the growing unpopularity of the court, which was considerably augmented by a further development whereby the Star Chamber assumed legislative powers by making “decrees”.¹

THE COURT OF REQUESTS

      Numerous courts were founded upon the model of the Council. Many of them have faint beginnings in the reign of Henry VII or even earlier, but it is to Henry VIII and Elizabeth that they owe the bulk of their power. We have already mentioned the Council and the Star Chamber; there were many more besides. The Court of Requests first appears in 1483² and was modelled to some extent on the Chambre des Requêtes, a similar institution in France. The next we hear of it is in 1485 when a bill to abolish it was introduced into parliament and passed the commons, but got no further.³ Under Henry VII it was, in effect, a committee of the Council for the hearing of poor men’s causes and matters relating to the King’s servants. Sometimes it appears in two divisions, one in the White Hall at Westminster and the other travelling with the King. Its jurisdiction was mainly civil, although at times it entertained matters of a criminal character, such as grave disorder, forgery, etc., and for some time the court seems to have been genuinely popular. Its head was the Lord Privy Seal, and assisting him were a number of masters of requests, two of whom deserve to be remembered for their contributions to legal literature: Christopher St. Germain, and Sir Julius Caesar. Its organisation closely followed that of the Chancery. Its procedure was at first intended to be informal, but the abuses to which this led compelled the court to follow the Chancery system of having bills drawn and signed by counsel. In the end it