Constitutional History of England, Henry VII to George II. Volume 2 of 3

by Henry Hallam

Among the exertions of authority practised in the star-chamber which no positive law could be brought to warrant, he enumerates "punishments of breach of proclamations before they have the strength of an act of parliament; which this court hath stretched as far as ever any act of parliament did. As in the 41st of Elizabeth, builders of houses in London were sentenced, and their houses ordered to be pulled down, and the materials to be distributed to the benefit of the parish where the building was; which disposition of the goods soundeth as a great extremity, and beyond the warrant of our laws; and yet, surely, very necessary, if anything would deter men from that horrible mischief of increasing that head which is swoln to a great hugeness already."[61]

The mode of process was sometimes of a summary nature; the accused person being privately examined, and his examination read in the court, if he was thought to have confessed sufficient to deserve sentence, it was immediately awarded without any formal trial or written process. But the more regular course was by information filed at the suit of the attorney-general, or in certain cases, of a private relator. The party was brought before the court by writ of subpœna; and having given bond with sureties not to depart without leave, was to put in his answer upon oath, as well to the matters contained in the information, as to special interrogatories. Witnesses were examined upon interrogatories, and their dispositions read in court. The course of proceeding on the whole seems to have nearly resembled that of the chancery.[62]

Punishments inflicted by the star-chamber.—It was held competent for the court to adjudge any punishment short of death. Fine and imprisonment were of course the most usual. The pillory, whipping, branding, and cutting off the ears, grew into use by degrees. In the reign of Henry VII. and Henry VIII., we are told by Hudson, the fines were not so ruinous as they have been since, which he ascribes to the number of bishops who sat in the court, and inclined to mercy; "and I can well remember," he says, "that the most reverend Archbishop Whitgift did ever constantly maintain the liberty of the free charter, that men ought to be fined, salvo contenemento. But they have been of late imposed according to the nature of the offence, and not the estate of the person. The slavish punishment of whipping," he proceeds to observe, "was not introduced till a great man of the common law, and otherwise a worthy justice, forgot his place of session, and brought it in this place too much in use."[63] It would be difficult to find precedents for the aggravated cruelties inflicted on Leighton, Lilburne, and others; but instances of cutting off the ears may be found under Elizabeth.[64]

The reproach, therefore, of arbitrary and illegal jurisdiction does not wholly fall on the government of Charles. They found themselves in possession of this almost unlimited authority. But doubtless, as far as the history of proceedings in the star-chamber are recorded, they seem much more numerous and violent in the present reign than in the two preceding. Rushworth has preserved a copious selection of cases determined before this tribunal. They consist principally of misdemeanours, rather of an aggravated nature; such as disturbances of the public peace, assaults accompanied with a good deal of violence, conspiracies, and libels. The necessity, however, for such a paramount court to restrain the excesses of powerful men no longer existed, since it can hardly be doubted that the common administration of the law was sufficient to give redress in the time of Charles the First; though we certainly do find several instances of violence and outrage by men of a superior station in life, which speak unfavourably for the state of manners in the kingdom. But the object of drawing so large a number of criminal cases into the star-chamber seems to have been twofold: first, to inure men's minds to an authority more immediately connected with the Crown than the ordinary courts of law, and less tied down to any rules of pleading or evidence; secondly, to eke out a scanty revenue by penalties and forfeitures. Absolutely regardless of the provision of the Great Charter, that no man shall be amerced even to the full extent of his means, the councillors of the star-chamber inflicted such fines as no court of justice, in the present reduced value of money, would think of imposing. Little objection indeed seems to lie, in a free country, and with a well-regulated administration of justice, against the imposition of weighty pecuniary penalties, due consideration being had of the offence and the criminal. But, adjudged by such a tribunal as the star-chamber, where those who inflicted the punishment reaped the gain, and sat, like famished birds of prey, with keen eyes and bended talons, eager to supply for a moment, by some wretch's ruin, the craving emptiness of the exchequer, this scheme of enormous penalties became more dangerous and subversive of justice, though not more odious, than corporal punishment. A gentleman of the name of Allington was fined £12,000 for marrying his niece. One who had sent a challenge to the Earl of Northumberland was fined £5000; another for saying the Earl of Suffolk was a base lord, £4000 to him, and a like sum to the king. Sir David Forbes, for opprobrious words against Lord Wentworth, incurred £5000 to the king, and £3000 to the party. On some soap-boilers, who had not complied with the requisitions of the newly incorporated company, mulcts were imposed of £1500 and £1000. One man was fined and set in the pillory for engrossing corn, though he only kept what grew on his own land, asking more in a season of dearth than the overseers of the poor thought proper to give.[65] Some arbitrary regulations with respect to prices may be excused by a well-intentioned, though mistaken, policy. The charges of inns and taverns were fixed by the judges. But, even in those, a corrupt motive was sometimes blended. The company of vintners, or victuallers, having refused to pay a demand of the lord treasurer, one penny a quart for all wine drank in their houses, the star-chamber, without information filed or defence made, interdicted them from selling or dressing victuals till they submitted to pay forty shillings for each tun of wine to the king.[66] It is evident that the strong interest of the court in these fines must not only have had a tendency to aggravate the punishment, but to induce sentences of condemnation on inadequate proof. From all that remains of proceedings in the star-chamber, they seem to have been very frequently as iniquitous as they were severe. In many celebrated instances, the accused party suffered less on the score of any imputed offence than for having provoked the malice of a powerful adversary, or for notorious dissatisfaction with the existing government. Thus Williams, Bishop of Lincoln, once lord-keeper, the favourite of King James, the possessor for a season of the power that was turned against him, experienced the rancorous and ungrateful malignity of Laud; who, having been brought forward by Williams into the favour of the court, not only supplanted by his intrigues, and incensed the king's mind against his benefactor, but harassed his retirement by repeated persecutions.[67] It will sufficiently illustrate the spirit of these times to mention that the sole offence imputed to the Bishop of Lincoln in the last information against him in the star-chamber was, that he had received certain letters from one Osbaldiston, master of Westminster School, wherein some contemptuous nickname was used to denote Laud.[68] It did not appear that Williams had ever divulged these letters. But it was held that the concealment of a libellous letter was a high misdemeanour. Williams was therefore adjudged to pay £5000 to the king, and £3000 to the archbishop, to be imprisoned during pleasure, and to make a submission; Osbaldiston to pay a still heavier fine, to be deprived of all his benefices, to be imprisoned and make submission; and moreover to stand in the pillory before his school in Dean's-yard, with his ears nailed to it. This man had the good fortune to conceal himself, but the Bishop of Lincoln, refusing to make the required apology, lay above three years in the Tower, till released at the beginning of the long parliament.

It might detain me too long to dwell particularly on the punishments inflicted by the court of star-chamber in this reign. Such historians as have not written in order to palliate the tyranny of Charles, and especially Rushworth, will furnish abundant details, with all those circumstances that portray the barbarous and tyrannical spirit of those who composed that tribunal. Two or three instances are so celebrated that I cannot pass them over. Leighton, a Scots divine, having published an angry libel against the hierarchy, was sentenced to be publicly whipped at Westminster and set in the pillory, to have one side of his nose slit, one ear cut off, and one side of his cheek branded with a hot iron, to have the whole of this repeated the next week at Cheapside, and to suffer perpetual imprisonment in the Fleet.[69] Lilburne, for dispersing pamphlets against the bishops, was whipped from the Fleet prison to Westminster, there set in the pillory, and treated afterwards with great cruelty.[70] Prynne, a lawyer of uncommon erudition and a zealous puritan, had printed a bulky volume, called Histriomastix, full of invectives against the theatre, which he sustained by a profusion of learning. In the course of this, he adverted to the appearance of courtesans on the Roman stage, and by a satirical reference in his index seemed to range all female actors in the class.[71] The queen, unfortunately, six weeks after the publication of Prynne's book, had performed a part in a mask at court. This passage was accordingly dragged to light by the malice of Peter Heylin, a chaplain of Laud, on whom the archbishop devolved the burthen of reading this heavy volume in order to detect its offences. Heylin, a bigoted enemy of everything puritanical, and not scrupulous as to veracity, may be suspected of having aggravated, if not misrepresented, the tendency of a book much more tiresome than seditious. Prynne, however, was already obnoxious, and the star-chamber adjudged him to stand twice in the pillory, to be branded in the forehead, to lose both his ears, to pay a fine of £5000, and to suffer perpetual imprisonment. The dogged puritan employed the leisure of a gaol in writing a fresh libel against the hierarchy. For this, with two other delinquents of the same class, Burton a divine, and Bastwick a physician, he stood again at the bar of that terrible tribunal. Their demeanour was what the court deemed intolerably contumacious, arising in fact from the despair of men who knew that no humiliation would procure them mercy.[72] Prynne lost the remainder of his ears in the pillory; and the punishment was inflicted on them all with extreme and designed cruelty, which they endured, as martyrs always endure suffering, so heroically as to excite a deep impression of sympathy and resentment in the assembled multitude.[73] They were sentenced to perpetual confinement in distant prisons. But their departure from London, and their reception on the road, were marked by signal expressions of popular regard; and their friends resorting to them even in Launceston, Chester, and Carnarvon castles, whither they were sent, an order of council was made to transport them to the isles of the Channel. It was the very first act of the long parliament to restore these victims of tyranny to their families. Punishments by mutilation, though not quite unknown to the English law, had been of rare occurrence; and thus inflicted on men whose station appeared to render the ignominy of whipping and branding more intolerable, they produced much the same effect as the still greater cruelties of Mary's reign, in exciting a detestation for that ecclesiastical dominion which protected itself by means so atrocious.

Character of Laud.—The person on whom public hatred chiefly fell, and who proved in a far more eminent degree than any other individual the evil genius of this unhappy sovereign, was Laud. His talents, though enabling him to acquire a large portion of theological learning, seem to have been by no means considerable. There cannot be a more contemptible work than his Diary; and his letters to Strafford display some smartness, but no great capacity. He managed indeed his own defence, when impeached, with some ability; but on such occasions, ordinary men are apt to put forth a remarkable readiness and energy. Laud's inherent ambition had impelled him to court the favour of Buckingham, of Williams, and of both the kings under whom he lived, till he rose to the see of Canterbury on Abbot's death, in 1633. No one can deny that he was a generous patron of letters, and as warm in friendship as in enmity. But he had placed before his eyes the aggrandisement, first of the church, and next of the royal prerogative, as his end and aim in every action. Though not literally destitute of religion, it was so subordinate to worldly interest, and so blended in his mind with the impure alloy of temporal pride, that he became an intolerant persecutor of the puritan clergy, not from bigotry, which in its usual sense he never displayed, but systematic policy. And being subject, as his friends call it, to some infirmities of temper, that is, choleric, vindictive, harsh, and even cruel to a great degree, he not only took a prominent share in the severities of the star-chamber, but, as his correspondence shows, perpetually lamented that he was restrained from going further lengths.[74]

Laud's extraordinary favour with the king, through which he became a prime adviser in matters of state, rendered him secretly obnoxious to most of the council, jealous, as ministers must always be, of a churchman's overweening ascendancy. His faults, and even his virtues, contributed to this odium. For being exempt from the thirst of lucre, and, though in the less mature state of his fortunes a subtle intriguer, having become frank through heat of temper and self-confidence, he discountenanced all schemes to serve the private interest of courtiers at the expense of his master's exhausted treasury, and went right onward to his object, the exaltation of the Church and Crown. He aggravated the invidiousness of his own situation, and gave an astonishing proof of his influence, by placing Juxon, Bishop of London, a creature of his own, in the greatest of all posts, that of lord high-treasurer. Though Williams had lately been lord-keeper of the seal, it seemed more preposterous to place the treasurer's staff in the hands of a churchman, and of one so little distinguished even in his own profession, that the archbishop displayed his contempt of the rest of the council, especially Cottington, who aspired to it, by such a recommendation.[75] He had previously procured the office of secretary of state for Windebank. But, though overawed by the king's infatuated partiality, the faction adverse to Laud were sometimes able to gratify their dislike, or to manifest their greater discretion, by opposing obstacles to his impetuous spirit.

Lord Strafford.—Of these impediments, which a rash and ardent man calls lukewarmness, indolence, and timidity, he frequently complains in his correspondence with the lord-deputy of Ireland—that Lord Wentworth, so much better known by the title of Earl of Strafford, which he only obtained the year before his death, that we may give it him by anticipation, whose doubtful fame and memorable end have made him nearly the most conspicuous character of a reign so fertile in recollections. Strafford had in his early years sought those local dignities to which his ambition probably was at that time limited, the representation of the county of York and the post of custos rotulorum, through the usual channel of court favour. Slighted by the Duke of Buckingham, and mortified at the preference shown to the head of a rival family, Sir John Saville, he began to quit the cautious and middle course he had pursued in parliament, and was reckoned among the opposers of the administration after the accession of Charles.[76] He was one of those who were made sheriffs of their counties, in order to exclude them from the parliament of 1626. This inspired so much resentment, that he signalised himself as a refuser of the arbitrary loan exacted the next year, and was committed in consequence to prison. He came to the third parliament with a determination to make the court sensible of his power, and possibly with some real zeal for the liberties of his country. But patriotism unhappily, in his self-interested and ambitious mind, was the seed sown among thorns. He had never lost sight of his hopes from the court; even a temporary reconciliation with Buckingham had been effected in 1627, which the favourite's levity soon broke; and he kept up a close connection with the treasurer Weston. Always jealous of a rival, he contracted a dislike for Sir John Eliot, and might suspect that he was likely to be anticipated by that more distinguished patriot in royal favours.[77] The hour of Wentworth's glory was when Charles assented to the petition of right, in obtaining which, and in overcoming the king's chicane and the hesitation of the Lords, he had been pre-eminently conspicuous. From this moment he started aside from the path of true honour; and being suddenly elevated to the peerage and a great post, the presidency of the council of the North, commenced a splendid but baleful career, that terminated at the scaffold.[78] After this fatal apostasy he not only lost all solicitude about those liberties which the petition of right had been designed to secure, but became their deadliest and most shameless enemy.

The council of the North was erected by Henry VIII. after the suppression of the great insurrection of 1536. It had a criminal jurisdiction in Yorkshire and the four more northern counties, as to riots, conspiracies, and acts of violence. It had also, by its original commission, a jurisdiction in civil suits, where either of the parties were too poor to bear the expenses of a process at common law; in which case the council might determine, as it seems, in a summary manner, and according to equity. But this latter authority had been held illegal by the judges under Elizabeth.[79] In fact, the lawfulness of this tribunal in any respect was, to say the least, highly problematical. It was regulated by instructions issued from time to time under the great seal. Wentworth spared no pains to enlarge the jurisdiction of his court. A commission issued in 1632, empowering the council of the North to hear and determine all offences, misdemeanours, suits, debates, controversies, demands, causes, things, and matters whatsoever therein contained, within certain precincts, namely, from the Humber to the Scots frontier. They were specially appointed to hear and determine divers offences, according to the course of the star-chamber, whether provided for by act of parliament or not; to hear complaints according to the rules of the court of chancery, and stay proceedings at common law by injunction; to attach persons by their serjeant in any part of the realm.[80]