118

GENERAL REMARKS.

CHAP. V.

CHAPTER V.

ON THE CIVIL GOVERNMENT OF ELIZABETH.

§ 1. General Remarks. 2. Defective Security of the Subject's Liberty. § 3. Trials for Treason and other Political Offences unjustly conducted. § 4. Illegal Commitments. § 5. Proclamations unwarranted by Law. § 6. Restrictions on Printing. 7. Martial Law. § 8. Loans of Money not quite voluntary. § 9. Character of Lord Burleigh's Administration. 10. Disposition of the House of Commons. 11. Addresses concerning the Succession. Difference on this between the Queen and Commons in 1566. 12. Session of 1571. Influence of the Puritans in Parliament. 13. Session of 1572. 14. Speech of Mr. Wentworth in 1576. The Commons continue to seek Redress of Ecclesiastical Grievances. 15. Also of Monopolies, especially in the Session of 1601. § 16. Influence of the Crown in Parliament. § 17. Debate on Election of non-resident Burgesses. 18. Assertion of Privileges by Commons. Case of Ferrers, under Henry VIII. Other Cases of Privilege. 19. Privilege of determining contested Elections claimed by the House. 20. The English Constitution not admitted to be an absolute Monarchy. 21. Pretensions of the Crown.

§ 1. THE subject of the two last chapters, I mean the policy adopted by Elizabeth for restricting the two religious parties which from opposite quarters resisted the exercise of her ecclesiastical prerogatives, has already afforded us many illustrations of what may more strictly be reckoned the constitutional history of her reign. The tone and temper of her administration have been displayed in a vigilant execution of severe statutes, especially towards the catholics, and sometimes in stretches of power beyond the law. And as Elizabeth had no domestic enemies or refractory subjects who did not range under one or other of these two sects, and little disagreement with her people on any other grounds, the ecclesiastical history of this period is the best preparation for our inquiry into the civil government. In the present chapter I shall first offer a short view of the practical exercise of government in this reign, and then proceed to show how the queen's high assumptions of prerogative were encountered by a resistance in parliament, not quite uniform, but insensibly becoming more vigorous.

§ 2. Elizabeth ascended the throne with all the advantages of a very extended authority. Though the jurisdiction actually exerted by the court of star-chamber could not be vindicated according to statute law, it had been so well established as to pass without many audible murmurs. Her progenitors had intimidated the nobility; and if she had something to fear at one season from this order, the fate of the duke of Norfolk and of the rebellious earls in the north put an end for ever to all apprehension from the feudal influence of

the aristocracy. There seems no reason to believe that she attempted a more absolute power than her predecessors; the wisdom of her councillors, on the contrary, led them generally to shun the more violent measures of the late reigns; but she certainly acted upon many of the precedents they had bequeathed her, with little consideration of their legality. Her own remarkable talents, her masculine intrepidity, her readiness of wit and royal deportment, which the bravest men unaffectedly dreaded, her temper of mind, above all, at once fiery and inscrutably dissembling, would in any circumstances have ensured her more real sovereignty than weak monarchs, however nominally absolute, can ever enjoy or retain. To these personal qualities was added the co-operation of some of the most diligent and circumspect, as well as the most sagacious councillors that any prince has employed; men as unlikely to loose from their grasp the least portion of that authority which they found themselves to possess, as to excite popular odium by an unusual or misplaced exertion of it. The most eminent instances, as I have remarked, of a high-strained prerogative in her reign have some relation to ecclesiastical concerns; and herein the temper of the predominant religion was such as to account no measures harsh or arbitrary that were adopted towards its conquered but still formidable enemy. Yet when the royal supremacy was to be maintained against a different foe by less violent acts of power, it revived the smouldering embers of English liberty. The stern and exasperated puritans became the depositaries of that sacred fire; and this manifests a second connexion between' the temporal and ecclesiastical history of the present reign.

Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of parliament, without let or interruption, to inquire into and obtain the redress of public grievances. Of these the first is by far the most indispensable; nor can the subjects of any state be reckoned to enjoy a real freedom where this condition is not found both in its judicial institutions and in their constant exercise. In this, much more than in positive law, our ancient constitution, both under the Plantagenet and Tudor line, had ever been failing; and it is because one set of writers have looked merely to the letter of our statutes or other authorities, while another have been almost exclusively struck by the instances of arbitrary government they found on record, that such incompatible systems have been laid down with equal positiveness on the character of that constitution.

§ 3. I have found it impossible not to anticipate, in more places than one, some of those glaring transgressions of natural as well as positive law that rendered our courts of justice in cases of treason

120

STATE TRIALS.

CHAP. V. little better than the caverns of murderers. Whoever was arraigned at their bar was almost certain to meet a virulent prosecutor, a judge hardly distinguishable from the prosecutor except by his ermine, and a passive pusillanimous jury. Those who are acquainted only with our modern decent and dignified procedure can form little conception of the irregularity of ancient trials; the perpetual interrogation of the prisoner, which gives most of us so much offence at this day in the tribunals of a neighbouring kingdom; and the want of all evidence except written, perhaps unattested, examinations or confessions.

Sir

The integrity of judges is put to the proof as much by prosecutions for seditious writings as by charges of treason. I have before mentioned the convictions of Udal and Penry for a felony created by the 23rd of Elizabeth; the former of which especially must strike every reader of the trial as one of the gross judicial iniquities of this reign. But, before this sanguinary statute was enacted, a punishment of uncommon severity had been inflicted upon one Stubbe, a puritan lawyer, for a pamphlet against the queen's intended marriage with the duke of Anjou. It will be in the recollection of most of my readers that, in the year 1579, Elizabeth exposed herself to much censure and ridicule, and inspired the justest alarm in her most faithful subjects, by entertaining, at the age of forty-six, the proposals of this young scion of the house of Valois. Her council, though several of them in their deliberations had much inclined against the preposterous alliance, yet in the end, displaying the compliance usual with the servants of self-willed princes, agreed, " conceiving," as they say, "her earnest disposition for this her marriage," to further it with all their power. Philip Sidney, with more real loyalty, wrote her a spirited remonstrance, which she had the magnanimity never to resent. But she poured her indignation on Stubbe, who, not entitled to use a private address, had ventured to arouse a popular cry in his 'Gaping Gulph, in which England will be swallowed up by the French Marriage.' This pamphlet is very far from being, what some have ignorantly or unjustly called it, a virulent libel, but is written in a sensible manner, and with unfeigned loyalty and affection towards the queen. But, besides the main offence of addressing the people on state affairs, he had, in the simplicity of his heart, thrown out many allusions proper to hurt her pride, such as dwelling too long on the influence her husband would acquire over her, and imploring that she would ask her physicians whether to bear children at her years would not be highly dangerous to her life. Stubbe, for writing this pamphlet, received sentence to have his right hand cut off. When the penalty was inflicted, taking off his hat with his left, he exclaimed, "Long live queen Elizabeth!" Burleigh, who

knew that his fidelity had borne so rude a test, employed him afterwards in answering some of the popish libellers.

There is no room for wonder at any verdict that could be returned by a jury when we consider what means the government possessed of securing it. The sheriff returned a panel, either according to express directions, of which we have proofs, or to what he judged himself of the crown's intention and interest. If a verdict had gone against the prosecution in a matter of moment, the jurors must have laid their account with appearing before the starchamber; lucky if they should escape, on humble retractation, with sharp words, instead of enormous fines and indefinite imprisonment. The control of this arbitrary tribunal bound down and rendered impotent all the minor jurisdictions. Until this weight that hung upon the constitution should be taken off, there was literally no prospect of enjoying with security those civil privileges which it held forth.

§ 4. It cannot be too frequently repeated that no power of arbitrary detention has ever been known to our constitution since the charter obtained at Runnymede. The writ of habeas corpus has always been a matter of right. But, as may naturally be imagined, no right of the subject, in his relation to the crown, was preserved with greater difficulty. Not only the privy council in general arrogated to itself a power of discretionary imprisonment, into which no inferior court was to inquire, but commitments by a single councillor appear to have been frequent. These abuses gave rise to a remarkable complaint of the judges, which, though an authentic recognition of the privilege of personal freedom against such irregular and oppressive acts of individual ministers, must be admitted to leave by far too great latitude to the executive government, and to surrender, at least by implication from rather obscure language, a great part of the liberties which many statutes had confirmed. This is contained in a passage from Chief Justice Anderson's Reports.1

§ 5. It was a natural consequence, not more of the high notions entertained of prerogative than of the very irregular and infrequent meeting of parliament, that an extensive and somewhat indefinite authority should be arrogated to proclamations of the king in council. It seems, by the proclamations issued under Elizabeth, that the crown claimed a sort of supplemental right of legislation, to perfect and carry into effect what the spirit of existing laws might require, as well as a paramount supremacy, called sometimes the king's absolute or sovereign power, which sanctioned commands beyond the legal prerogative, for the sake of public safety, whenever

ST. C. H. E.

1 Printed in NOTE at the end of this chapter.

G

122

RESTRICTIONS ON PRINTING.

CHAP. V.

the council might judge that to be in hazard. Thus we find anabaptists, without distinction of natives or aliens, banished the realm; Irishmen commanded to depart into Ireland; the culture of woad, and the exportation of corn, money, and various commodities prohibited; the excess of apparel restrained. A proclamation in 1580 forbids the erection of houses within three miles of London, on account of the too great increase of the city, under the penalty of imprisonment and forfeiture of the materials. This is repeated at other times, and lastly (I mean during her reign) in 1602, with additional restrictions. Some proclamations in this reign hold out menaces which the common law could never have executed on the disobedient. To trade with the French king's rebels, or to export victuals into the Spanish dominions (the latter of which might possibly be construed into assisting the queen's enemies), incurred the penalty of treason. And persons having in their possession goods taken on the high seas, which had not paid customs, are enjoined to give them up, on pain of being punished as felons and pirates. Notwithstanding these instances, it cannot perhaps be said on the whole that Elizabeth stretched her authority very outrageously in this respect. Many of her proclamations, which may at first sight appear illegal, are warrantable by statutes then in force, or by ancient precedents. Thus the council is empowered by an act, 28 H. VIII., c. 14, to fix the prices of wines; and abstinence from flesh in Lent, as well as on Fridays and Saturdays (a common subject of Elizabeth's proclamations), is enjoined by several statutes of Edward VI. and of her own. And it has been argued by some not at all inclined to diminish any popular rights, that the king did possess a prerogative by common law of restraining the export of corn and other commodities.

§ 6. It is natural to suppose that a government thus arbitrary and vigilant must have looked with extreme jealousy on the diffusion of free inquiry through the press. The trades of printing and book-selling, in fact, though not absolutely licensed, were always subject to a sort of peculiar superintendence. Besides protecting the copyright of authors," the council frequently issued proclamations to restrain the importation of books, or to regulate their sale,3 It was penal to utter, or so much as to possess, even the most learned works on the catholic side; or if some connivance was usual in favour of educated men, the utmost strictness was used in

2 We find an exclusive privilege granted in 1563 to Thomas Cooper, afterwards bishop of Winchester, to print his Thesaurus, or Latin dictionary, for twelve years-Rymer, xv. 620; and to Richard Wright to print his translation of Tacitus during his natural life; any one infringing

this privilege to forfeit 40s. for every printed copy. Id. xvi. 97.

3 Strype's Parker, 221. By the 51st of the queen's injunctions, in 1559, no one might print any book or paper whatsoever unless the same be first licensed by the council or ordinary.