much partiality. It may be proper to say here, however, that for one law
that has been passed in Connecticut of a bigoted or intolerant
character, a diligent explorer into the English court records or
statute-books for evidences of bigotry and revolting cruelty could find
twenty in England. "Kings have been dethroned," says Bancroft, the
eloquent American historian, "recalled, dethroned again, and so many
constitutions framed or formed, stifled or subverted, that memory may
despair of a complete catalogue; but the people of Connecticut have
found no reason to deviate essentially from the government as
established by their fathers. History has ever celebrated the
commanders of armies on which victory has been entailed, the heroes who
have won laurels in scenes of carnage and rapine. Has it no place for
the founders of states, the wise legislators who struck the rock in the
wilderness, and the waters of liberty gushed forth in copious and
perennial fountains?"
JOHN MARSHALL
About this period many evidences were given of a general combination of
the neighboring Indians against the settlements of New England; and
apprehensions were also entertained of hostility from the Dutch of
Manhadoes. A sense of impending danger suggested the policy of forming a
confederacy of the sister-colonies for their mutual defence. And so
confirmed had the habit of self-government become since the attention of
England was absorbed in her domestic dissensions that it was not thought
necessary to consult the parent state on this important measure. After
mature deliberation articles of confederation were digested; and in May,
1643, they were conclusively adopted.
By them "The United Colonies of New England"--Massachusetts, Plymouth,
Connecticut, and New Haven--entered into a firm and perpetual league,
offensive and defensive.
Each colony retained a distinct and separate jurisdiction; no two
colonies could join in one jurisdiction without the consent of the
whole; and no other colony could be received into the confederacy
without the like consent.
The charge of all wars was to be borne by the colonies respectively, in
proportion to the male inhabitants of each between sixteen and sixty
years of age.
On notice of an invasion given by three magistrates of any colony, the
confederates were immediately to furnish their respective quotas. These
were fixed at one hundred from Massachusetts, and forty-five from each
of the other parties to the agreement. If a larger armament should be
found necessary, commissioners were to meet and ascertain the number of
men to be required.
Two commissioners from each government, being church members, were to
meet annually on the first Monday in September. Six possessed the power
of binding the whole. Any measure approved by a majority of less than
six was to be referred to the general court of each colony, and the
consent of all was necessary to its adoption.
They were to choose annually a president from their own body, and had
power to frame laws or rules of a civil nature and of general concern.
Of this description were rules which respected their conduct toward the
Indians, and measures to be taken with fugitives from one colony to
another.
No colony was permitted, without the general consent, to engage in war,
but in sudden and inevitable cases.
If, on any extraordinary meeting of the commissioners, their whole
number should not assemble, any four who should meet were empowered to
determine on a war, and to call for the respective quotas of the several
colonies, but not less than six could determine on the justice of the
war or settle the expenses or levy the money for its support.
If any colony should be charged with breaking an article of the
agreement, or with doing an injury to another colony, the complaint was
to be submitted to the consideration and determination of the
commissioners of such colonies as should be disinterested.
This union, the result of good-sense and of a judicious consideration of
the real interests of the colonies, remained in force until their
charters were dissolved. Rhode Island, at the instance of Massachusetts,
was excluded; and her commissioners were not admitted into the congress
of deputies, which formed the confederation.
ABOLITION OF THE COURT OF STAR-CHAMBER
POPULAR REVOLT AGAINST CHARLES I
A.D. 1641
HENRY HALLAM LORD MACAULAY
Before the accession of Charles I, in 1625, the separation
between the Church of England and the Puritans, which had been
slowly widening for half a century, had become so serious as to
be a menace to the peaceful stability of the kingdom. Charles
began his reign with repressive measures against the Puritan
influences. His use of the Star-chamber and similar tribunals
is an important subject of study in connection with the
preliminary steps on both sides which led at last to the great
civil war.
From the first, Charles aimed at despotic power, which he was
wont to seek in "dark and crooked ways." The House of Commons
stood against him on the popular side. He dissolved his first
Parliament and levied taxes by his own will; dissolved another
Parliament, and did the same, adding other acts of usurpation
and oppression. His third Parliament showed increased
opposition to his methods, and accordingly he decided to change
them. The Parliament passed (1628) the Petition of Right, the
second English Magna Charta, and Charles ratified it. By this
act the King was bound to raise no more moneys without consent
of Parliament, not to imprison anyone contrary to law, not to
billet the military in private houses, and to subject none to
martial law. From 1629 to 1640 Charles governed without a
parliament, replenishing his exchequer by various extraordinary
means.
In the following accounts of the previous workings of the
Star-chamber, Charles' star-chamber methods, his illegal
procedures, his violations of the Petition of Rights, and of
the consequent changes in the relations of his person and
government to the people, a very significant period of
transition in English history is summarized by the ablest
hands.
HENRY HALLAM
The levies of tonnage and poundage without authority of Parliament; the
exaction of monopolies; the extension of the forests; the arbitrary
restraints of proclamations; above all, the general exaction of
ship-money, form the principal articles of charge against the
government of Charles, so far as relates to its inroads on the subject's
property. These were maintained by a vigilant and unsparing exercise of
jurisdiction in the Court of Star-chamber. It was the great weapon of
executive power under Elizabeth and James; nor can we reproach the
present reign with innovation in this respect, though in no former
period had the proceedings of this court been accompanied with so much
violence and tyranny. But this will require some fuller explication.
I hardly need remind the reader that the jurisdiction of the ancient
Concilium Regis Ordinarium, or Court of Star-chamber, continued to be
exercised, more or less frequently, notwithstanding the various statutes
enacted to repress it; and that it neither was supported by the act
erecting a new court in the 3d of Henry VII nor originated at that time.
The records show the Star-chamber to have taken cognizance both of civil
suits and of offences throughout the time of the Tudors. But precedents
of usurped power cannot establish a legal authority in defiance of the
acknowledged law. It appears that the lawyers did not admit any
jurisdiction in the council, except so far as the statute of Henry VII
was supposed to have given it. "The famous Plowden put his hand to a
demurrer to a bill," says Hudson, "because the matter was not within the
statute; and, although it was then overruled, yet Mr. Sergeant
Richardson, thirty years after, fell again upon the same rock, and was
sharply rebuked for it." The chancellor, who was the standing president
of the Court of Star-chamber, would always find pretences to elude the
existing statutes, and justify the usurpation of this tribunal.
The civil jurisdiction claimed and exerted by the Star-chamber was only
in particular cases, as disputes between alien merchants and Englishmen,
questions of prize or unlawful detention of ships, and, in general, such
as now belong to the court of admiralty; some testamentary matters, in
order to prevent appeals to Rome, which might have been brought from the
ecclesiastical courts; suits between corporations, "of which," says
Hudson, "I dare undertake to show above a hundred in the reigns of Henry
VII and Henry VIII, or sometimes between men of great power and
interest, which could not be tried with fairness by the common law"; for
the corruption of sheriffs and juries furnished an apology for the
irregular, but necessary, interference of a controlling authority. The
ancient remedy, by means of attaint, which renders a jury responsible
for an unjust verdict, was almost gone into disuse, and, depending on
the integrity of a second jury, not always easy to be obtained; so that
in many parts of the kingdom, and especially in Wales, it was impossible
to find a jury who would return a verdict against a man of good family,
either in a civil or criminal proceeding.
The statutes, however, restraining the council's jurisdiction, and the
strong prepossession of the people as to the sacredness of freehold
rights, made the Star-chamber cautious of determining questions of
inheritance, which they commonly remitted to the judges; and from the
early part of Elizabeth's reign they took a direct cognizance of any
civil suits less frequently than before, partly, I suppose, from the
increased business of the court of chancery and the admiralty court,
which took away much wherein they had been wont to meddle, partly from
their own occupation as a court of criminal judicature, which became
more conspicuous as the other went into disuse. This criminal
jurisdiction is that which rendered the Star-chamber so potent and so
odious an auxiliary of a despotic administration.
The offences principally cognizable in this court were forgery, perjury,
riot, maintenance, fraud, libel, and conspiracy. But, besides these,
every misdemeanor came within the proper scope of its inquiry; those
especially of public importance, and for which the law, as then
understood, had provided no sufficient punishment; for the judges
interpreted the law in early times with too great narrowness and
timidity, defects which, on the one hand, raised up the overruling
authority of the court of chancery as the necessary means of redress to
the civil suitor who found the gates of justice barred against him by
technical pedantry, and on the other, brought this usurpation and
tyranny of the Star-chamber upon the kingdom by an absurd scrupulosity
about punishing manifest offences against the public good.
Thus corruption, breach of trust and malfeasance in public affairs,
attempts to commit felony, seem to have been reckoned not indictable at
common law, and came, in consequence, under the cognizance of the
Star-chamber. In other cases its jurisdiction was merely concurrent; but
the greater certainty of conviction and the greater severity of
punishment rendered it incomparably more formidable than the ordinary
benches of justice. The law of libel grew up in this unwholesome
atmosphere, and was moulded by the plastic hands of successive judges
and attorneys-general. Prosecutions of this kind, according to Hudson,
began to be more frequent from the last years of Elizabeth, when Coke
was attorney-general; and it is easy to conjecture what kind of
interpretation they received. To hear a libel sung or read, says that
writer, and to laugh at it and make merriment with it, have ever been
held a publication in law. The gross error that it is not a libel if it
be true, has long since, he adds, been exploded out of this court.
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 swollen to a great hugeness already."
The mode of process was sometimes of a summary nature; the accused
person being privately examined, and his examination read in 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 subpoena, 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 depositions read in court. The course of
proceeding, on the whole, seems to have nearly resembled that of the
chancery.
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 reigns 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," says he, "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." 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.
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
misdemeanors, 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 I, though we certainly
do find several instances of violence and outrage by men of a superior
station in life, which speak unfavorably 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 counsellors
of the Star-chamber inflicted such fines as no court of justice, even 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 twelve thousand pounds
for marrying his niece. One, who had sent a challenge to the Earl of
Northumberland, was fined five thousand pounds; another for saying the
Earl of Suffolk was a base lord, four thousand pounds to him, and a like
sum to the King. Sir David Forbes, for opprobrious words against Lord
Wentworth, incurred five thousand pounds to the King and three thousand
pounds to the party. On some soap-boilers, who had not complied with the
requisitions of the newly incorporated company, mulcts were imposed of
one thousand five hundred pounds and one thousand pounds. 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. 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 drunk 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.
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 favorite 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 favor 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. 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.
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
misdemeanor. Williams was therefore adjudged to pay five thousand pounds
to the King and three thousand 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 about 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. Lilburne, for dispersing
pamphlets against the bishops, was whipped from the Fleet prison to
Westminster, there set in the pillory, and treated afterward with great
cruelty. 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. 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
burden 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 five thousand pounds,
and to suffer perpetual imprisonment. The dogged Puritan employed the
leisure of a jail 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 demeanor was what the court deemed intolerably
contumacious, arising, in fact, from the despair of men who knew that no
humiliation would procure them mercy. 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. 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.