by S B Chrimes
Such evidence as exists2 suggests that such punishments as were inflicted by the council at this time were moderate, in the form of fines which were seldom heavy, or imprisonment, usually until the fine had been paid or security for it given. There is no evidence of ruthlessness or extortion in the council penalizations. Star Chamber at this time has been described as a ‘Very gentle instrument of coercion’. But there were other ways of coercion, other means of ruthless extortion that might be resorted to, if it so pleased the king – by his own executive command, outside the sphere of conciliar jurisdiction altogether. Indeed, the council in Star Chamber was scarcely regarded by the government at all as an instrument of coercion for its own purposes. Its procedures were primarily for the benefit of the aggrieved suitor, not of the government. When the king wanted to coerce or seize opportunities for pecuniary advantage under the guise of legal justification, there were other channels open for the exertion of his will.3 One of these was the group of councillors, some of whom might indeed sit with others in Star Chamber, but who as a group attained an identity of its own, and whose activities, unlike those of the council in Star Chamber, were largely focused on the king’s interest, namely, the Council Learned.
‘The king’s Council Learned in the law’ remains a somewhat obscure body,4 of which almost nothing would be known except for the fortuitous survival of some of its records among the archives of the duchy of Lancaster, of which Sir Reginald Bray, a leading member of the Council Learned, was chancellor. Nothing is known of its activities before 1500, and it disappeared in 1509. It is, however, clear that it performed two functions; it acted as a tribunal or court (though never so called) and it acted as a royal debt-collecting agency. It is misleading indeed to describe it as a ‘committee of the council’1; rather it was a group of councillors exercising the discretion of the King’s Council for certain purposes. Its activities as a debt-collecting agency must be considered later; here its judicial activities need attention.
The names of at most only twelve members of the group are recorded at any time during the nine years of its known existence, but not all of these were members at any one time. Two bishops were among them: Roger Leybourne, bishop of Carlisle from 1504, and Robert Sherborne, who had been the king’s secretary, bishop of St David’s from 1505.2 Sir Reginald Bray, and his successor but one as chancellor of the duchy, Richard Empson, were prominent members, so prominent that a closer connection between the Council Learned and the duchy than the merely personal may be conjectured. The other known members at one time or another were Edmund Dudley, Sir James Hobart, the king’s attorney, Thomas Lucas, the king’s solicitor, and William Mordaunt,3 clerk of the Common Pleas and duchy attorney there. All these eight are known to have been at one time or another king’s councillors. Four other persons are known to have been associated with some of these injudicial activities, and may have been reckoned to be of the Council Learned, though not specifically so called in the surviving records. Three of these were common lawyers: Robert Brudenall, a serjeant-at-law in 1504, king’s serjeant in 1505, and a justice of King’s Bench in 1507; Humphrey Coningsby, serjeant in 1494, a justice of the King’s Bench, but only from 21 May 1509;4 and Richard Hesketh, a rising apprentice-at-law who was not destined to become a justice, but was twice a commissioner of gaol delivery and once a commissioner to enquire into the king’s prerogative rights in Henry VII’s time, and was in 1515 to deliver a reading in Gray’s Inn on a subject profitable for aspiring lawyers to lecture upon at these times – the Praerogativa regis.5 The fourth, William Smith, cannot be identified with any assurance.1
The feature common to this personnel was legal training. Except for one of the two bishops2 and Bray, who does not appear to have had a legal training,3 all the members were lawyers (unless William Smith was an exception), and not for nothing therefore were they known as consilium domini regis in lege eruditum or jurisperitum.
The cases that came before this tribunal were of two kinds, either private suits, mostly about land, or government prosecutions. It is far from clear why some private suits were heard by this body instead of the council in Star Chamber, though there are some instances of the plaintiff’s bill being addressed to the Council Learned. In these private suits there is no apparent difference between the Council Learned’s jurisdiction and that of the council in Star Chamber, unless perhaps for some reason the more concentrated legal expertise of the former was thought to be more appropriate. In all such cases the jurisdiction, even if not exactly ‘equitable’ jurisdiction, was to provide remedies by conciliar discretion.
But the bulk of the cases heard were initiated by the government, and there can be no doubt that the raison d’être of the Council Learned was to try certain Crown prosecutions and to collect Crown debts. The connecting link between these two superficially distinct functions was the king’s financial interest, and the reason for circumventing the normal recourse to the common law courts in either function can only be surmised as ‘reason of State’. It is not surprising that the odium that the tightening of the financial screws by this body produced was sufficient to result after Henry VII’s death in its disappearance as such.
The litigation initiated by the Crown was miscellaneous. Offences against various kinds of statutes, including trade regulations, the misdemeanours of sheriffs and jurors, escapes of prisoners, false returns, riots, livery, retaining and maintenance; offences against proclamations, failure to take up knighthood; the king’s feudal and seignorial rights – ward of heirs, assignment of dower, entry without livery, all figured in the list. One case of treason and several of murder figure in the records, but why these should have come before the Council Learned is a mystery. However, the bulk of prosecutions ended, so far as is known, with the imposition of a fine, and many Privy Seals are known to have been issued requiring the payment of money to John Heron in the chamber or else ordering appearance before the Council Learned. But these latter demands were often for unspecified amounts and reasons – they ranked as ‘debts due to the king’, and in this regard the functions of the council as a debt-collecting agency came into the picture.1 What jurisdictional purpose the Council Learned really served, it is hard to see. Most of the matters considered could have been referred to the common law courts, some indeed were so referred by it. But the processes of the ordinary courts were slow, and the threatening weapon of the Privy Seal was not available therein; nor could the accruing fines be readily diverted to the chamber. If the chief purpose of the Council Learned was to operate to the king’s financial advantage then doubtless it was an efficient instrument well designed for the purpose. But it could hardly have expected to become a permanent feature in the administration of justice.
Just as some of the council sitting in Star Chamber performed judicial functions, without its being called the court of Star Chamber in Henry VII’s time, so some of the council could adjudicate upon what were originally intended to be ‘poor men’s causes’, without as yet being called ‘the court of Requests’, a term that did not come into use until twenty years after Henry VII’s death.2 It is doubtful whether the councillors who were concerned with this type of business can be called ‘a standing committee of the council’. They were a group of councillors, and for many years suitors were obliged to follow the king in his progresses and the councillors who happened to be attendant upon him were the ones who dealt with this species of judicial activity. From 1483 a clerk had been appointed specifically as the clerk of the council of Requests, in recognition of his good work in the custody, registration and expedition of bills, requests and supplications of poor persons,1 but the earliest recorded proceeding comes from 1493; from 1497 the council of Requests began to observe the same terms as the common law courts and the council in Star Chamber. Not until 1516 did Wolsey establish a location for it, in the White Hall in Westminster, where it usually though not always met thenceforth. But the location gave it for some time the name of court of White Hall, and although the term ‘court of Requests’ bega
n to be used from 1529, even then it was still sometimes referred to as the council.2
The personnel of the council of Requests under Henry VII seems to have been simply a group of councillors for the time being, some of whom, however, probably never acted as councillors for any other purpose.3 There do not appear as yet to have been any formal appointments of masters of Requests. The keeper of the Privy Seal frequently functioned as the chairman of the group, but then so also did a president of the council, who is first mentioned in 1497, when he took the place of the Privy Seal in proceedings on Requests; and a president is on a number of occasions mentioned as similarly occupied.4 What the significance of this alteration may be can at present only be conjectured, but the office of president of the council can hardly have been set up primarily for such a purpose. There is no evidence that the personnel was necessarily constant; there were considerable variations, as one would expect, but there were apparently always present several ecclesiastics qualified in canon and civil law, as well as normally some common lawyers, and these provided the expertise needed for the adjudication of the legal problems involved.
What exactly differentiated the jurisdiction of the council of Requests from that of the council in Star Chamber is difficult to determine. It will not do to say that the former dealt with civil disputes and the latter with criminal causes,5 for the council in Star Chamber clearly handled both, even though Requests appears to have confined itself to civil causes. The original idea that the requests to be adjudged were only those of poor men unable to obtain remedy by the ordinary courses had already become a fiction, for some of the plaintiffs of whom we have knowlege were certainly not in that category, and there is little to distinguish the petitions considered by the council of Requests from those considered by the council in Star Chamber at this time.1 What the plaintiffs wanted were remedies for one reason or another unobtainable or difficult to obtain in the common law courts; and the summary procedures by written pleadings and depositions on interrogatories, likely to be cheaper and more expeditious than processes elsewhere, were desirable enough. But there is no evidence that the plaintiffs themselves asked for their petition to go to the council of Requests. They sought remedy from the king their sovereign lord, and it was the officials who decided which petition should go where. On what basis the distribution was made there are no means of determining.
The jurisdiction exercised by the council, whether as a whole, or in Star Chamber, or in the Council Learned, or in the council of Requests, was conciliar jurisdiction exercised by virtue of the residuary discretion of the king himself. Jurisdiction exercised by virtue of royal commissions or by statutes was a quite different matter. The bulk of Henry VII’s judicial commissions were of the normal common law variety (commissions of oyer et terminer gaol delivery, of assize, and the like) and do not call for special comment. The occurrence of the rather numerous conspiracies, plots, and rebellions and insurrections during the reign induced the king from time to time to appoint special commissioners2 to pacify the region or regions concerned, and pacification in this sense involved judicial or quasi-judicial activities with strong emphasis upon the summary extraction of financial penalties rather than strict course of the common law.
Of the statutory tribunals set up the one which has attracted the most attention is that established by the act of 1487, the entirely erroneously-called ‘pro camera stellate’ act. The tribunal set up by this act had in fact nothing whatever to do with the council in Star Chamber or with the council in any form.3 The essential purpose of the act was to create a tribunal quite distinct from the council, which, as the King’s Council, could and did exercise all the jurisdiction envisaged without any statutory provision. The whole point was that in 1487 it was thought necessary to establish a tribunal which was not the council or a common law court, to deal with certain classes of offences against the public peace, the very offences the committal of which tended to vitiate the slow traditional process of the common law itself. The aim was to confer summary jurisdiction in these matters upon the principal officers of state. The chancellor, the treasurer, and the keeper of the Privy Seal, or any two of them, were empowered to call to their assistance a bishop and a temporal lord of the king’s most honourable council, and the two chief justices or two other justices in their absence. The tribunal so established was authorized to proceed upon any bill or information put to the chancellor for the king or otherwise against any person ‘for any misbehaving’ (of the kind specified), with authority to summon by writ or Privy Seal, by examination at discretion, and to punish them according to their demerits and in accordance with statutes already made with regard to the specified offences, as they should be punished if they were convicted after the due course of law.1
The six offences specified were: maintenance, retaining by indentures, by promises, or oaths, and by giving liveries, signs and tokens, embracery, corrupt conduct of sheriffs in returning juries, bribe-taking by juries, and riots. These were the particular offences against public order and the proper operation of the common law which were giving the government special concern. All of them had been the subject of statutory provision over the past century,2 most of them had been condemned by the oath administered to the commons and lords in the parliament of 1485.3 The object of the establishment of what can best be described as this ministerial tribunal was to enforce the provisions of statute law expeditiously and summarily, primarily so as to free the common law procedures from the abuses and corruptions that were impeding the course of justice.
It is clear from the evidence, scanty though it is, that the tribunal did operate in Henry VII’s reign. Most of the few cases for which record is extant were initiated by the government; there is no evidence that the offenders prosecuted were particularly outstanding or highly placed, but it is possible that the discovery of new material might put a different light upon the matter. It is certain that the tribunal was operating in 1493, when the common law justices in the Exchequer chamber ruled that the chancellor, treasurer, and Privy Seal, or two of them, were the only judges under the act of 1487, and the other persons only assistants, although they must be associated with the judges to give validity to the judgments of the tribunal.1
In the absence of more than the ten cases the records of which have become available,2 any wide generalizations about the effectiveness of the act of 1487 are hazardous. How far the tribunal it set up was successful in suppressing the offences it dealt with, we do not know. It may well be that it made no mark on the history of the time and that it was superfluous3 because the council in Star Chamber could and did deal with the same kinds of offences, but the framers of the act must have been well aware of such an alternative, but still have had good reason to enact the measure. Only time showed in the long run that the council in Star Chamber would make the tribunal redundant. But that time did not arrive for many years, otherwise there would have been no point in re-enacting the whole measure in 1529 and adding the president of the King’s Council to the ministers, two of whom were to be the judges.4 There was probably a good deal more to the history of the tribunal set up by the act of 1487 than has yet been revealed.5
All the justices of the common law courts appointed soon after his accession by Henry VII had been previously appointed by Richard III, or in the time of Edward IV.
Sir William Huse was appointed to be chief justice of the King’s Bench, Sir Thomas Brian to be chief justice of Common Pleas, and Sir Humphrey Starkey to be chief baron of the Exchequer; all by signed bills with date 20 September 1485.1
Huse (or Husey), of Gray’s Inn, had become the king’s attorney-general in 1471, a serjeant-at-law in 1481, and been appointed chief justice of the King’s Bench in 1481, and continued in office by Richard III. Brian, also of Gray’s Inn, became a serjeant as early as 1463, and was appointed chief justice of Common Pleas soon after Edward IV’s restoration in 1471, and continued under Richard III. Starkey, of the Inner Temple, became a serjeant in 1478 and was appointed chief baron ten days b
efore the dethronement of Edward V, received a new patent from Richard III, and was soon appointed a justice of Common Pleas by him and by Henry VII.
Only one other chief justice of the King’s Bench had to be found by Henry VII, and his choice was to promote John Fineux in November 1495, who less than two years earlier had been appointed a justice of Common Pleas, despite Morton’s opposition to the elevation of a lawyer (a serjeant, of unknown inn, before 1485), who had expressed criticism of the government’s fiscal policy. Fineux, a man outstanding in his profession, remained chief justice until his death in 1525.
A more rapid turnover occurred in the chief justiceship of Common Pleas. Brian died in October 1500, and was succeeded by Thomas Wood, who had been included among Henry VII’s first call of Serjeants in 1485, appointed king’s serjeant in 1488, and a justice of Common Pleas in November 1495. But he died in 1502, and was followed by Sir Thomas Frowyk, of the Inner Temple, a serjeant since 1494, of such eminence that he was promoted direct to the chief justiceship. But he held the office for four years only and on his death in 1506 was succeeded by Sir Robert Read, who had been a justice of King’s Bench from 1495, after having been of Lincoln’s Inn, reader there, and serjeant from November 1485. He continued in the office until his death in 1519.