Posted by Krista J. Kesselring, 10 October 2021.

A new collection of essays on the Court of Star Chamber and its records is out now, freely available online thanks to the Open Access provisions of its publishers. Many historians and literary scholars draw upon Star Chamber’s records as sources or texts, as shown to good effect by contributors to the new book. Some of the essays in the volume suggest, too, that we should look not just through our archives but at them.[1] This post briefly follows up on this suggestion and expands upon the Introduction’s observation that ‘the record’ meant something quite particular for the people who produced the legal documents we use.

Anyone who works with the documentary relics of the past has had occasion to bemoan the fires, floods, wars, and other such ravages that have led to the loss of so many records. People have destroyed many documents intentionally, too, whether deeming them unimportant or dangerous. Researchers working with the Star Chamber archive alternate between gloating about the sheer volume and heft of the treasure trove of documents we have and complaining that the records of judgements and most files from the reign of King Charles have disappeared, lost or destroyed at some point after the court’s closure in 1641.[2] Some of the court’s potentially most interesting and important cases – its notorious proceedings ‘ore tenus’, orally upon confession – left little to no trace in the court’s own archive. The court’s judges also ordered the intentional destruction of some of its records. We know of a few such instances thanks to a second type of documentation, separate from the court’s own archive: informal reports and notes kept by observers of the court’s hearings.

In one well-reported case, for example, Dr. Robert Peterson, dean of Exeter, complained that Samuel Travers, a man he had barred from a posting, had retaliated by conspiring with others to have Katherine Bampton, a former servant of the dean’s, ‘falsely and maliciously’ accuse the plaintiff of having had sex with her out of wedlock and fathering her child. Along with substantial fines for most of the men involved, the judges ordered that Katherine ‘be carried down into the country to be well whipped’ through the streets of Exeter, then to be committed to the House of Correction for a year. They also ordered that all records in the case save for the plaintiff’s bill of complaint and their own decree be called in and burned, so ‘that no scandal remain to the plaintiff hereafter’.[3]

In a 1635 case between Sir James Bagg and Sir Anthony Pell on matters of royal finance in which the Lord Treasurer’s integrity came into question, the judges ‘thought fit for divers special reasons to have all the proceedings in the said cause utterly vacated and cancelled and that the same together with the said decree thereupon be taken off from the file, made void and defaced for that nothing at all remain thereof’.[4] A contemporary reporter noted that the court’s registrar received a warrant under the King’s own hand to ‘forbear entering the censure of the court in this cause, as regularly His Majesty might do by the rules of this court’. Bills and petitions to the court were addressed to the King; as such, he might do with them as he wished.[5] In a few other cases, too, judges reportedly suppressed evidence from publication in court, deeming its content libellous or seditious and thus ‘unfit to be of record’.^[6]

In a subsequently influential case, Rice ap Evan ap Floyd alleged that Richard Barker, an assize judge in Anglesey, had criminally conspired to have William Price executed for a murder he did not commit. In a decision later deemed important in the history of judicial immunity, judges not only found in favour of the assize judge, but also insisted that the judges of the common law courts and their records could not be called to account before any other judge. According to Sir Edward Coke’s report of the case heard in Star Chamber, ‘as the matter was deemed not to be examinable in this court, it was ordered that the bill be taken off the file and cancelled and utterly defaced’.  Even as they ordered the destruction of one set of documents, the judges opined (in Coke’s words) that the common law court’s records ‘are of so high a nature that for their sublimity they import verity in themselves’.[7]

That’s grand stuff indeed. Elsewhere, Coke noted that a ‘record’—produced ‘in a court of record, entered in parchment in the right roll’—is called as much ‘for that it records or bears witness of the truth…It has this sovereign privilege that it is proved by no other but by itself.’[8] 

In a few earlier cases some discussion had arisen whether Star Chamber was, in fact, a ‘court of record’, with decisions apparently tending toward ‘yes’. But over the early 1600s, opinions on the nature of the record and on Star Chamber started to shift—the opinions Coke voiced were themselves products of increasingly fraught jurisdictional tussles between courts of law.[9] In 1621, William Hudson, one of Star Chamber’s defenders, responded to claims premised on the body’s haphazard way with the records of pleadings and judgements: for some critics, this lack of diligence compared to other courts at Westminster signified that Star Chamber was no ‘settled, ordinary court of justice’, not a ‘court of ordinary justice, which is ever tied to form’, but effectively ‘a committee for such great causes as it pleased the king’. About all Hudson could counter, though, was that the neglect was new. He wrote that in former times the records were so well kept they might well compare with ‘the record’ of other courts.[10] ‘The record’ was coming to mean a parchment roll with Latin-language engrossments of stages in pleading and decisions made. By the time Parliament abolished the court of Star Chamber, one of the distinctions MPs drew between Star Chamber and what they deemed the ordinary, legitimate courts of common law was precisely that the former had no proper record whereas the latter did.[11]

But yes, of course, the court produced records in abundance. While some people came to think that Star Chamber was not a proper ‘court of record’, it produced voluminous documentation, from lengthy bills in the form of petitions through to rejoinders, demurrers, interrogatories, and depositions. Legal action may have been all about finding or making ‘facts’ and incontrovertible determinations, but historians retrospectively using the pleadings wade through claims and counterclaims that were very much controverted, well aware that even the basic allegations of force or fraud might themselves be untrue, intended merely to get the cause heard in this particular court. We can, though, in many cases turn to the reports and notes on cases to learn at least what the judges deemed to be or made into ‘fact’ at the trials’ ends.

More broadly, these reports and notes on cases in Star Chamber are themselves interesting as evidence of thinking in and about the court that ran counter to its characterization as something less than a court of record. Precedent came to matter in this prerogative court in ways that at first glance seem surprising. That’s not to say that the court had anything like a well developed notion of stare decisis, or the binding force of precedent – not even the common law courts did at this point in English legal history – but the reports and notes show signs that the privy councillors and high court judges who heard cases in Star Chamber were starting to show respect for ‘authority’ over reason as a source of legal argument akin to what we see in the better known reporting of common law and Chancery cases.[12] By the late sixteenth and early seventeenth centuries the court’s personnel increasingly turned to precedent to determine what kinds of matters they could hear in Star Chamber and what kinds of punishments or remedies they could offer. They and their clerks turned to the old records to guide their actions in the present, producing compendia of precedents and past actions. Observers in the court also penned reports on current cases, circulating them in manuscript to educate readers in the mechanics of pleading and argument but also in the ways of governance: from such reports readers could admire the ‘sage censures of the grave counsellors’.[13]

Some of the reports on cases thus became commodities, bought and sold as part of news culture in early Stuart England. With clerks charging by the word or sheet, we might also consider the court’s own records as commodities of a sort, too, the products of labour and of exchange, shaped by interests beyond the purely legal. Some documents grew so long that a judge grumbled that he might just make the people producing them wear them as cloaks, fitting perhaps for materials made from old rags or animals’ skins.[14] One satirical pamphlet published around the time of the court’s closure had ‘Christopher Cob-Web’, a keeper of the court’s records, bewail the loss of the court clerks’ lucrative trade and observe that his last best hope for making money from his office lay in selling the heaps of parchment in his care to tailors for pattern-making.[15]

Star Chamber records and reports thus had several functions and meanings in their own day that might inflect how we use them for our own purposes now—whether we approach them as historians, lawyers, literature scholars, archivists, etc. And as our archivally-minded colleagues remind us, how and why the records upon which we rely came into being, and came to be used and saved, can be as interesting as the words written on the paper or parchment.

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Notes:

[1] Paraphrasing Kathryn Burns, ‘Notaries, truth, and consequences’, American Historical Review, 110 (2005), 350-79, p. 355. On the ‘archival turn’, see, e.g., the essays in Archives and Information in the Early Modern World, ed. Liesbeth Corens, Kate Peters, and Alexandra Walsham, Proceedings of the British Academy, 212 (2018), esp. Kate Peters, ‘”Friction in the archives”: access and the politics of record-keeping in revolutionary England’, pp. 151-76.

[2] For a useful introduction to the surviving records, see Daniel Gosling’s essay in the new volume, ‘The records of the court of Star Chamber at The National Archives and elsewhere’, Star Chamber Matters: An Early Modern Court and its Records, ed. K.J. Kesselring and Natalie Mears (London, 2021), 19-40.

[3] Quotations are from the contemporary report later included in John Rushworth’s Historical Collections of Private Passages of State, vol. 3: 1639-40 (8 vols, London, 1721), Appendix, p. 47; a brief note of the case is also included in Harvard Law School, MS 1101, f. 61r. A remarkably full account of the case was prepared by a contemporary observer and is now included in Samuel R. Gardiner, Reports of Cases in the Courts of Star Chamber and High Commission (Camden Society, n.s. 39, 1886), p. 136-7, and most substantially, 153-75, 180; the latter report is taken from Bodleian, Rawlinson MS A.128.

[4] The National Archives, SP 16/535, f. 286.

[5] John Rushworth, Historical Collections of Private Passages of State, vol. 2: 1629-38 (8 vols, London, 1721), pp. 303-4.

[6] Harvard MS Eng 1350 (Prynne’s trial), no foliation. See, too, e.g., Harvard Law School Library, MS 149, f. 94r and also British Library, Lansdowne 37, f. 118, an order from Lord Burghley in 1583 that the depositions in a case be withdrawn and defaced. On the varied meanings of ‘publication’, see Clare Egan’s essay in the new volume, ‘Jacobean Star Chamber records and the performance of provincial libel’, Star Chamber Matters, ed. Kesselring and Mears, 135-54.

[7] Floyd and Barker, 12 Co. Rep. 23, 77 English Reports 1305 (1607). See also HLS MS 149, ff. 81r-83r.

[8] Coke, The Third Part of the Institutes (London, 1669; first published 1644), 71.

[9] On the disputes over Star Chamber’s status as a ‘court of record’, see W. S. Holdsworth, The History of English Law (17 vols., London, 1956-66), vol.5, pp. 157-61 and S. E. Thorne, ‘Courts of record and Sir Edward Coke’, University of Toronto Law Journal, ii (1937), 24-49.

[10] William Hudson, ‘A Treatise on the Court of Star Chamber’, in Collectanea Juridica, ed. F. Hargrave (2 vols, London, 1792), ii. 1-240, at p. 5-6.

[11] ‘An Act for the Regulating the Privy Council and for taking away the Court commonly called the Star Chamber’, 17 Car. 1, c. 10.

[12] On law reporting, see e.g., L.W. Abbott, Law Reporting in England, 1485-1585 (London, 1973); various essays and introductions by J.H. Baker, including ‘Records, Reports, and the Origins of Case-Law in England’, in Judicial Records, Law Reports, and the Growth of Case Law, ed. J.H. Baker (Berlin, 1989); and essays in Law Reporting in Britain, ed. Chantal Stebbings (London, 1995), esp. David Ibbetson, ‘Report and Record in Early Modern Common Law’.

[13] Noah Millstone, Manuscript Circulation and the Invention of Politics in Early Stuart England (Cambridge, 2016), p. 263, quoting a 1634 letter from Ralph Verney.  On these reports, see especially Ian Williams’s essay, ‘Contemporary Knowledge of the Star Chamber and the Abolition of the Court’, in Star Chamber Matters, ed. Kesselring and Mears, pp. 195-215.

[14] In his notes on cases he observed in Star Chamber, John Hawarde wrote that Lord Chancellor Egerton had fined a counsellor who had produced a bill of 125 sheets in length, and talked of having the man wear it ‘as a herald’s coat’ through the courts of Westminster: J. Hawarde, Les Reportes del Cases in Camera Stellata, 1593-1609, ed. W. P. Baildon (London, 1894), p. 263.

[15] Anon., The Star-Chamber Epitomized, or, A Dialogue between Inquisition, a Newes-Smeller, and Christopher Cob-web, a keeper of the Records for the Star-Chamber (London, 1641).