PANEL: Courts Outside the Orbit of the Common Law
Friday, October 23, 10:30-12:00Chair: Janet S. Loengard, Department of History, Moravian College
Star Chamber, 1596-1641: Ontogenesis of a Common Law Court
Thomas G. Barnes, Department of History and School of Law, University of California, Berkeley
By the time of its destruction by statute in 1641 the High Court of Star Chamber had secured a place in the firmament of English judicature, not as a tribunal of extraordinary jurisdiction but as a court evolving the common law of crimes, while providing civil remedies as well as imposing penal sanctions. By definition, this development was limited to misdemeanors, but that area of criminal law assumed new importance in an increasingly moneyed, transactional, dynamic, and sophisticated society. Wealthy litigants attracted the best talent of the common law bar--no other counsel were heard--litigation routinely involved the leaders (utter and coifed), and the Court enjoyed the services of its own, highly learned, specialized bar. Because of the involvement of the Attorney General, and the other King's counsel learned, in litigation, for the first time there developed a sustained and systematic structure of procuration, never entirely replicated after 1641 though sufficiently imitated to enhance the scope and effectiveness of pleas of the Crown. The common law judges played the two key roles at trial: (1) authoritative declaration of the common law; and (2) earliest and usually determinative finding of fact and appropriate sanction. In interlocutory matters, on demurrers, exceptions, and pleas in bar, the judges of the common law courts virtually monopolized referrals. And the rapid development of the common law in Star Chamber summoned unusual reporting talent, contributing to the emergence of the "new model" reports primarily concerned with substantive law rather than substantive rules framed in the interstices of procedure. Finally, all of the law developed in Star Chamber was already in process of rapid absorption in the common law courts before 1641, effectively advanced far enough to make permanent contributions to both criminal law and torts.
The Chancellor's Foot and the Fusion of Law and Equity
John Langbein, Yale Law School
Comment: The Chair
Charles Donahue, Jr., Harvard Law School