536 STAR CHAMBER UNDER THE TUDORS October bo happen with regard to the lords of the council in the star chamber, where an act of Henry (31 Henry VIII, c. 10, 10) had ordained that they were to sit in the same order as in parliament ? As late as 22 June 1604, Lord Zouche, president of the council in Wales, affirmed in the star chamber that ' he was allwayes of opinion that euery Baron of Englaunde mighte take place and sitte in this cowrte ' ; and the lord chancellor refused to express an opinion, saying that it was not a matter for the court but for the earl marshal to decide. 1 No decision is reported, but the question was much debated. There is, however, little doubt as to the practice in Elizabeth's reign. Although Sir Thomas Smith includes in the personnel of the court ' the Lordes and others of the privie counsell, so many as will, and other Lordes and Barons which be not of the Privie Counsell and be in the towne ', 2 Henry VIII had certainly at times determined ' what the audience should be ' ; and Camden, writing in 1586, twenty-one years after Smith, expresses Elizabeth's practice more accurately when he defines the court as consisting of ' omnes consiliarii status tarn ecclesiastici quam laici, et ex Parliamenti Baronibus illi quos princeps advocabit '. 3 Mill quotes his father to the effect that ' noe man should sitt in the courte but if hee were sworne of the Councell ', 4 and confusion has been caused by the assumption that council in the elder Mill's time meant the privy council. The star chamber being the council in the star chamber, it followed that no one could sit without being sworn. 5 James I himself says that the court consists of ' four sorts of persons : the first two are priuie counsellours and iudges . . . the other two sorts are peeres of the realme and bishops ' ; 6 but assuredly he did not mean to imply that a peer or a bishop as such could claim to sit in the star chamber. In Elizabeth's reign any privy councillor could sit in the star chamber ; the rest of the court was constituted from time to time of such peers, bishops, and judges as the Crown or the chancellor chose to summon. 7 This regular practice was an effective denial of the claim of barons to sit as consiliarii nati ; and, as the old council fell into 1 Hawarde, Reports, ed. Baildon, p. 171 ; cf. Hudson, ii. 24-5 ; Mill in Hargrave MS. 216, p. 202 ; Scofield, pp. 12-13.
- De Republica, ed. Alston, p. 116. 3 Britannia, 1586, p. 63.
4 Hargrave MS. 216, p. 202 ; Scofield, p. 13 ; Leadam, Star Chamber Cases, ii, pp. xxxviii-ix ; Hudson, ii. 24-5. 5 Members of the old council were sworn ; if, later on, they were admitted to the privy council, they were sworn again. The form of the old council oath is given in Rot. Parl. v. 407. For instances of this double swearing see Letters and Papers, vii. 1525, viii. 225 ; Nicolas, vii. 51, 57-8. Political Works, p. 335. 7 Cf . Rushworth, ii. 474 : the chancellor ' at his own discretion commandeth the Chief Justice or any other judge to sit there at his pleasure ' ; and Hudson, ii. 25 : ' I doubt not but that it resteth in the king's pleasure to restrain any man from that table, as well as he may any of his council from the board.'
