sitting as powers as a jurisdic The council when acting as a law court "held its sittings in The council the 'Starred Chamber,' an apartment situated in the outer- the star most quadrangle of the palace, next to the bank of the river, chamber; and consequently easily accessible to the suitors, and which at length was permanently appropriated to the use of the council." To the history of the origin, jurisdiction, and procedure of the star chamber as already set forth but little need be added here. From the passage of the statute of 3 Hen. VII. c. I to the meeting of the Long Parliament, the invigorated judicial power of the council was so extended as to embrace all matters, great and small, public and private. As a court of original jurisdiction, it not only claimed the right to its vast try by its peculiar procedure every class of crimes from sheep- Court of stealing up to high treason, but it also interfered with rights original of property by taking jurisdiction of civil suits. In addition to tion; this, it claimed the right to supply the defects of trial by jury through the exercise of a vigilant supervision over the ordi- its supervi nary law courts, whose proceedings it undertook to control, at one time by withdrawing from them a case upon which they were about to act, at another by summoning before it for fine and imprisonment a jury whose verdict had been unsatisfactory.3 It is not therefore strange that when the press as an instru- its censorment for the expression of public opinion came into prominence during the reign of Henry VIII., the star chamber should have been quick to assume over it a control which soon ripened into a repressive system. Among its earlier proceedings in that regard may be noted the case of the printer Grafton, who was imprisoned, as the records show, for having published certain "invectives," and for having in his possession "a certain seditious epistle, in the English tongue, by the censoMelancthon." 5 At the instigation of Whitgift the press was strictly subjected in 1585 to a regular censorship by ordinances of organized the star chamber, which undertook its complete regulation in Elizabeth; 1 Palgrave, Essay on the Original Authority of the King's Council, p. 38. 2 See above, pp. 25-27. 3 Dicey, The Privy Council, pp. 112, 113; Stephen, Hist. of the Crim. Law, vol. i. pp. 169-173. + The censorship of the press was first assumed in England, as in the rest of Europe, by the church, which suf After fered nothing to be published without 5 Proceedings of the Privy Council, sion of the law courts; ship of the press; rial power under printing without a as the chamber can be traced the beginnings of the law order to prevent the "enormities and abuses of disorderly persons professing the art of printing and selling books."1 By the restrictions thus imposed every one was prohibited special from printing without a special license,2 and the whole printlicense ing trade was put as a monopoly into the hands of ninety-seven prohibited; the monop- London stationers, who as the Stationers' Company constituted oly known a guild empowered to seize all publications put forth by outStationers' siders. Nothing was to be printed that had not received the Company; approval of the bishops, while the guild was authorized to search houses in order to destroy books unlawfully printed, and to bring the offenders before the star chamber, which thus became specially charged with the punishment of press offences. to the star And so it is that to this source we must go for the beginnings of the law of libel.3 Apart, however, from the judicial powers which the council thus exercised in its corporate capacity, each individual member claimed the right of his own motion to order the arrest and commitment of any of his fellow-citizens individual who might be deemed obnoxious. So serious did the grievto order ance become during the reign of Elizabeth that the judges, who were much hindered in their attempts to give relief by habeas corpus, presented a joint remonstrance to some of the council in 1591, in which they asked that "order may be taken that her highness' subjects may not be committed or detained in prison, by commandment of any nobleman or councillor, against the laws of the realm, to the grievous charges and oppression of her majesty's said subjects." And yet while the judges thus opposed the right of arrest when asserted by an individual councillor, they seemed to admit its proper exerof the right cise directly by the crown, or by the council as a whole, when cised by the they said: "We think that, if any person shall be committed whole. by her majesty's special commandment, or by order from the of libel; right of councillors arrests; the remonstrance made by the judges in 1591 against that right; admission when exer council as a 1 See Strype's Whitgift, p. 222, and App. 94. For the elaborate order made by the star chamber in July, 1637, for the better regulation of the press, see Rushworth, vol. iii. App. 306. 2 "Side by side with the restrictions on printing which appear to have more or less broken down there grew up a system of licensing which constituted a true censorship." - Dicey, The Law of the Constitution, p. 247. 8 "In all ages libels have been se verely punished in this court, but most especially they began to be frequent about 42 & 43 Eliz. when Sir Edward Coke was her attorney general." Hudson, pp. 100-104, "Treatise on the Star Chamber," in Collectanea Juridica, vol. ii. As to the control exercised over the press from that time down to the Restoration, see Odgers, Libel and Slander, pp. 10, II. 4 Dicey, The Privy Council, p. 116. council board, or for treason touching her majesty's person, which causes being generally returned into any court, is good cause for the same court to leave the person committed in custody." 1 administra cil con finances, and the peace; affairs As an administrative body, the council exercised a multi- As an plicity of functions, the chief of which related to the manage- tive body ment of the finances, the regulation of commerce, including the counthe intercourse with foreign merchants, the supervision of the trolled the church, and the preservation of the peace. And when the commerce, destiny of England widened through the planting of colonies in the church, the New World by adventurers who derived their right to the public soil from charters granted by the crown and not by the parliament, the council was called upon to assume still another vitally important branch of administration. The governing also the power in the colony was usually vested in a local legislature, of the limited by the charter, which sat as a subordinate body subject colonies; to the control of the king in council, to whom all contested matters passed in the last resort.3 In the home land the council likewise undertook to supervise, and to a certain extent and to control, every branch of the political administration, from par- extent all liament itself down to the local self-governing bodies. Out branches of political of its attempts to interfere with the proceedings of parliament administraduring the reign of Elizabeth grew the memorable struggle home. between the conciliar and parliamentary systems, which will be made the subject of special treatment. In the same way it will be convenient to consider separately the relations of the council with the system of local administration which, during, the Tudor period, entered upon a marked and rapid develop ment. a certain tion at ment of 7. Nothing is more difficult for the student of English Developconstitutional history than to grasp with all its complicated local insti details the process through which the local self-governing tutions: communities were gradually developed by the growth of the nation from their ancient to their modern form. 1 Such is the text of an original MS. in the British Museum (Lansdowne MSS., lviii. 87) adopted by Hallam (Const. Hist., vol. i. pp. 234-236) in preference to the printed text of Anderson's Reports, vol. i. p. 297. As to the presentation of a MS. continuing Chief Justice Anderson's resolution in And yet the his own handwriting by his heirs to 2 For an elaboration of its jurisdic- of local, ing com ship became difficulties which surround the inquiry do not exceed its imEngland an portance. The starting-point of every effort to solve these aggregation difficulties should consist of a clear comprehension of the fact self-govern that the consolidated kingdom of England is a mere aggregamunities; tion of shires, local administrative districts divided into hundreds, which, in their turn, are subdivided into townships, the town- generally known in modern times as parishes.1 The history of the smallest local subdivision, "the unit of the constitutional machinery," is specially difficult and involved by reason of the fact that the township has been called upon to act in of which it several distinct capacities, from each of which is derived a new title. In order to escape the confusion which thus arises, the following facts must be kept steadily in view: (1) that the village the village community, the unit of organization throughout the community as the tun or Aryan world, which appeared in Britain as the tun or towntownship; ship, ordered its village and agricultural life through the action involved in several distinct relations, from each derived a new title; the township as the tithing; of the town meeting (tun-moot), a body which elected the town officers, provided for the representation of the town in the assemblies of the hundred and shire, and regulated the internal affairs of the township by the making of by-laws;2 (2) that the administration of the primitive police system based upon the peace-pledge (frithborh), which devolved first upon the family group (maegth), and then upon the artificial political association called the tithing, was finally cast upon the township, when the personal division known as the tithing became territorial. (In that way the police duties, for a time exercised by the tithing as a personal association, passed to the township as a territorial district; and, except in some of the western counties, even the name of the tithing is lost in that of the township); (3) that as the process of feudalization ship as the advanced, the township became dependent upon a superior lord, and as such it was known after the Conquest as the manor of the lord, and in that way a large part of the jurisdiction originally vested in the 'tun-moot passed to the manorial court, known as the court-baron, whose criminal side is the manorial court-leet; (4) that with the advent of Christianity the township as the primary political division of the state was, as a rule, adopted by the church as the district which should define the the town manor; the mano rial court; the town ship as the parish; 4 1 Vol. i. pp. 170-173. Ibid., pp. 196-198. jurisdiction of a single priest. Thus it was that the ancient township, regarded ecclesiastically, came to be known as the parish, and the meetings of the members of the parish for church purposes, usually held in the vestry, came to be known the parish as vestry meetings. In that way the township became so in- vestry; volved with the parish, and the meeting of the township for church purposes became so involved with the meeting of the vestry, that in small parishes the idea and even the name of the township is frequently lost in that of the parish.1 And so it came to pass that the territorial district originally known as the township was finally designated in every-day language as the parish; while the self-governing powers originally vested the township generin the tun-moot passed to the parish vestry, with the excep- ally known tion of such as were absorbed by the manorial courts. the decay of the feudal fabric the manorial courts have gradually passed out of view,2 until such as survive may be regarded as mere archaisms. On the other hand, the parochial system, which survitalized by a scheme of legislation enacted during the Tudor fundamenperiod, which imposed upon the parish important political tal institufunctions, has survived through their exercise as a funda- state. mental institution of the state. With as the parish; vives as a tion of the posite of the who are Some account must therefore be given of the composite The commachinery of the modern parish, and of the manner in which machinery it has been applied first to church and then to state purposes. parish: In the broad ecclesiastical sense, all inhabitants of the parish, all embraced in the cure of souls, are members of it; but in a members of it; narrower and more practical sense, those only are parishioners who bear their share of the public burdens by the payment of money or by the performance of personal services. In the the rector ecclesiastical sense, the head of the parish is the parson, and, if he does not own the tithes, the vicar; and in the same sense, 6 as its eccle siastical head; |