in the presence of the justices they would consult with the King's Council. The case of Richard de C. who struck a juror at Westminster is cited, wherein it is said that an award was made by the whole Council that his right hand should be cut off, and his lands and goods forfeited to the King1. The following are instances from the earliest existing records of the Star Chamber of the punishment by that Court of contempts of the common law courts; there are also numerous instances of punishment by the same authority of contempts of the Court of Chancery. From List of Proceedings in the Court of Star Chamber in the Public Record Office, vol. i: Forcible escape when arrested by order of the King's Bench, temp. Hen. VIII (p. 236); misconduct on a commission of gaol delivery, temp. Edw. VI (p. 264); forcible ejections, &c., in contempt of a judgment of the Common Pleas, temp. Edw. VI (p. 282); misconduct in an indictment, temp. Edw. VI (p. 289); attempt to discredit justices and jury in a case of murder, temp. Ph. & M. (p. 309). From Star Chamber Cases, 1641: Saying that Chief Justice Dyer was a corrupt judge-Dyer was Chief Justice 155981 (p. 33). From Star Chamber Reports 1631-2 (Camden Soc. Pub., 1886). Procuring an execution out of the Common Pleas and arrest of the defendant without any previous judgment, 1631-2 (p. 148) 2. It will be remembered that the Act for the Abolition of the Star Chamber (16 Charles I, c. 10) recites that all matters determinable in that Court may have their proper remedy and redress by the common law of the land and in the ordinary course of justice elsewhere. The Act imposed no limit on the future exercise by the courts of common law of the jurisdiction which it abolished in the case of the Star Chamber, and seems to have been so framed as to leave this an open question. Herbert C. J. is reported to have said that 'the reason of disallowing the Star Chamber was because their authority was before and now is in B. R. and consequently that court unnecessary 3.' This seems to be giving a very liberal interpretation to the recital in the Act. Holt C. J. in more guarded language says: This Court (the King's Bench) hath all the lawful power that the Star Chamber had 4'; and Blackstone, with equal caution, remarks that into the Court of King's Bench hath reverted 1 Cf. N.'s case, Y. B. by Pike, 19 Edw. III, p. 452. 2 Acknowledgment is due to Wallace on the Reporters (4th ed., p. 275) for the following reference:-'When Mr. Justice Shallow, grieved by the "disparagements' of Falstaff, threatened to "make a Star Chamber matter of it," vowing that "if he were twenty Sir John Falstaffs he should not abuse Robert Shallow, Esquire-who writes himself Armigero "-he seems to have apprehended with judicial exactness the extraordinary jurisdiction of this tribunal." 3 Rex v. Johnson (1686) Comb. 36. Rex v. Abraham (1690) Comb. 141. 'all that was good and salutary of the jurisdiction of the Court of Star Chamber1.' To illustrate the arguments put forward in favour of retaining the Star Chamber jurisdiction as far as might be, the following may be quoted from a manuscript apparently of the time of Charles II 2. After enumerating forgeries formerly punished in the Star Chamber the writer proceeds: 'If it be objected that most of these forgeries may be punished by indictment at the common law; Answer: It is true they might be if they could be discovered; but it is not to be supposed that those who are such knaves to commit these offences will be also fools to call witnesses to it, and without a positive witness to prove the indictment it will never be found. But by examination of the parties themselves discoveries have been often made.' In referring to conspiracies' so punished, the writer says: "These are deeds of darkness, and if the delinquents may not be examined to accuse themselves and make discoveries either by a plain confession of the fact or by pregnant and violent presumptions no man can be safe in his life or fortune, as may appear by several particulars of this nature.' Before the abolition of the Star Chamber the King's Bench had punished a grave form of contempt summarily, but the report seems to indicate an attempt to establish a jurisdiction of doubtful legality; for perjury in giving bail, upon confession without trial, a man was adjudged to be committed to prison and to stand upon the pillory with a paper mentioning his cause and to be brought to the Courts of King's Bench, Common Pleas, and Exchequer. The report says that his confession was recorded in court without other proceedings against him 3.' When by the abolition of the Star Chamber the whole jurisdiction over libels had passed to the King's Bench, the only procedure to punish them was by indictment or information, or redress might be obtained by action at law. It was argued, though unsuccessfully, in Prynn's case 4, that indictment and not information was the proper form of prosecution in a case of riot. In that case Hale C. J. was quoted as having said: 'If ever informations came in dispute they could not stand but must necessarily fall to the ground.' If Hale thought it illegal to try a man by twelve jurors instead of twenty-four or more, what would he have said to a trial without a jury? 1 Com. iv. 266. 2A short view of criminal causes punishable and heretofore punished in the Court of Star Chamber in the times of Queen Elizabeth, King James, and his late Majesty King Charles.' Bodleian, Tanner MSS., No. 300, fo. 249. 3 Royson's case (1629) Cro. Car. 146; see also Leeser's case (1618) Cro. Jac. 497 ; Higgins v. Sommerland (1614) 2 Bulstr. 68. (1691) 5 Mod. at p. 460. In 1680 Scroggs C. J. tried the experiment of granting a rule at large, viz. that 'The Weekly Packet of Advice from Rome' which contained reflections on the King and the Duke of York should no longer be printed or published by any person whatsoever, and he afterwards committed the editor for a breach of the rule. Roger North tells us that this proceeding 'made a great noise,' and was characterized as 'such an illegal invasion of property as had not been heard of since William the Conqueror.' Upon this was based one of the articles of Scroggs's subsequent impeachment. North thinks the rule was grounded on the law which abolished the Star Chamber, but he points out that although it is therein declared, or the Judges had resolved, that all jurisdiction which the Star Chamber might lawfully exercise rested by law on the Court of King's Bench, it might be said that in such cases the King's Bench must proceed by indictment or information 1. A treatise entitled 'The Doctrine of Libels Discussed and Examined,' published in 17282, commenting (p. 172) on the severity of the sentences in Dangerfield's and Baxter's cases 3, shows how the King's Bench was influenced by the Star Chamber practice in dealing with libels after the abolition of the latter Court: 'Whatever might be the practice of the King's Bench in earlier times, we find that latterly it has followed the examples laid down by the Star Chamber for punishing variously according to the nature of the offence, more especially since the suppression of that Court when the King's Bench found left to itself the correction of a great many enormities which before were punishable in the Star Chamber.' And again (p. 134) referring to the case of Rex v. Johnson: One would think that the King's Bench by copying so closely after the Star Chamber in this reign, had a mind either to wipe away or justify the character of cruelty and severity with which that Court was charged.' The same treatise cites a number of cases of libel from the reports, including libels on the Court, punished by indictment or information, down to the first year of Queen Anne, but contains no suggestion of the application of a summary process. In applying the summary process in and after the year 1720, the Courts were perhaps reflecting the practice of the House of 1 Examen, 564; 8 How. St. Tr. 165. 2 Issued anonymously, but evidently the work of a lawyer. A second edition with few variations, entitled, State Law or the Doctrine of Libels, &c., was published without date. 3 (1685) 3 Mod. 68, 69. 4 (1686) 2 Show. K. B. 488. 5 Cf. Starkie on Slander and Libel, 2nd ed., I, xxxi, n., as to the doctrines of the civil law borrowed by the Star Chamber and, on the abolition of that Court, by the courts of common law. Commons in the later Stuart period when commitment for breach of privilege by libels was frequent1. In the case of the Kentish Petition 2 Petition a Committee of the House reported their opinion that to assert the House of Commons have no power of commitment but of their own members tends to the subversion of the constitution of the House, and that to print or publish any books or libels reflecting upon the proceedings of the House or any member thereof for or relating to his service therein is a high violation of the rights and privileges of the House. At the conference between the two Houses in the case of Ashby and White in 1701 the Commons reasserted their right to commit for breach of privilege persons not members of the House, and the Lords in answer said that they never disputed that right. It may be therefore that while the Select Committee in Burdett's case in 1810 based their argument for the right to commit for libels on the analogy of the superior Courts of Justice, the fact was that the Courts had borrowed the practice from the House of Commons. It may also be suggested that in applying attachment to the case of a libel the Court was acting by analogy to the process in the case of slander on the Court on the service of process. On examining the list of precedents furnished by the Select Committee in 1810, we find that the first case is that of John de Northampton, an attorney, in 18 Edward III; the next four cases, extending from 11 Anne to 6 George I, are cases of slander connected with the service of process; and then follows the first instance of a libel, viz. that of Wilkins in 1720. The sequence of cases leads to the supposition that when slander was corrected by the summary process it was considered that libel was a fortiori so punishable— ignoring the distinction between a direct obstruction to the course of justice in executing a particular process, and an indirect obstruction which operated only by tending to bring the general administration of justice into disrepute, and which after the abolition of the Star Chamber, and down to 1720, had invariably been punished by information or indictment. The development of the summary jurisdiction to punish contempts, so far as it can be gathered from the authorities cited above, may be shortly and tentatively stated as follows. Originally the superior courts of common law had jurisdiction to punish disobedience to the King's writ summarily by fine and imprisonment upon attachment, and probably also a disciplinary jurisdiction over 1 See Appendix A to the Report of the Select Committee in Burdett's case referred to p. 184, supra. i Commons Journals (1701), xiii. 767. 3 Lords Journals (1701), xvii. 709, 714. their own officers exercisable summarily. The Court of King's Bench had jurisdiction on indictment or bill1 to punish contempts in facie, obstructions to the service of process, other obstructions to the administration of justice, as by libelling the Court or a judge 2 or assaulting a party on his way to the Court, and deceit or collusion in connexion with pending proceedings. In later times-perhaps in or after the Tudor period-the common law courts gradually established a summary jurisdiction over most of those contempts which had been formerly the subject of indictment or bill, but this did not extend to libels on the Court or judges which were still punished by indictment or by proceedings in the Star Chamber, and upon the abolition of that Court, by information or indictment in the King's Bench. The Council or the Star Chamber as representing the Council, had always exercised a concurrent jurisdiction to punish contempts of other Courts, and, as the Star Chamber records show, had exercised it largely. Upon the abolition of that Court a large portion of its jurisdiction devolved upon the King's Bench, and libels, including libels upon Courts and judges, were punished by information or indictment down to the early part of the eighteenth century. In 1720 is to be found the earliest recorded case of libel or slander on the Court or a judge by a stranger, unconnected with the service of process, being punished by attachment. Whether the Court of Chancery exercised the jurisdiction to punish libels by summary process before the time of Lord Talbot (1733-7) is open to doubt. If that Court did possess such a power it devolved upon each branch of the High Court of Justice when the Judicature Acts came into operation, and thereby became exercisable by the King's Bench Division; but the object of this paper has been to show that such a jurisdiction cannot be founded upon the case of Rex v. Almon. The judgment in that case seems to have been based rather upon what the Court considered the practice ought logically to be than upon what it actually was; the principle upon which it is based could not be supported on the ground of immemorial usage-but only by re-establishing the jurisdiction of the Star Chamber to try without a jury, which the common law judges had not claimed to exercise until eighty years after the Court had ceased to exist. The arguments of Wilmot J. as to the antiquity of attachment may be fully conceded; but for the present purpose it is necessary to contend that he was wrong in supposing that a summary process 1 See the reference to Hale's Discourse, 196, Part I, supra. |