ON THE CIVIL GOVERNMENT OF ELIZABETH
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 enquiry 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.
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 counsellors, 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,
216
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
counsellors 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 connection 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 enquire 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.
Trials for treason and other political offences unjustly conducted. —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 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
217
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, and perhaps unattested,
examinations or confessions. Habington, one of the conspirators
against Elizabeth's life in 1586, complained that two witnesses had
not been brought against him, conformably to the statute of Edward
VI. But Anderson, the chief justice, told him, that as he was indicted
on the act of Edward III., that provision was not in force.[369] In the case of Captain Lee, a partisan of Essex and Southampton, the court
appear to have denied the right of peremptory challenge.[370] Nor was more equal measure dealt to the noblest prisoners by their equals.
The Earl of Arundel was convicted of imagining the queen's death, on
evidence which at the utmost would only have supported an
indictment for reconciliation to the church of Rome.[371]
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 conviction 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. Sir
Philip Sidney, with more real loyalty, wrote her a spirited
remonstrance, which she had the magnanimity never to resent.[372]
But she poured
218
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.[373]
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 pannel, either according to express
directions, of which we have proofs, or to what he judged himself of
the crown's intention and interest.[374] If a verdict had gone against the prosecution in a matter of moment, the jurors must have laid their
account with appearing before the star-chamber; lucky, if they should
219
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. That primæval institution, those inquests by twelve true
men, the unadulterated voice of the people responsible alone to God
and their conscience, which should have been heard in the
sanctuaries of justice, as fountains springing fresh from the lap of
earth, became, like waters constrained in their course by art, stagnant
and impure. 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.[375]
Illegal commitments. —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 enquire, but commitments by a single counsellor 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.[376] This is contained in a passage from Chief Justice Anderson's Reports. But as there is an
original manuscript in the British Museum, differing in some material
points from the print, I shall follow it in preference.[377]
220
Remonstrance of judges against them. —"To the Rt. Hon. our very
good lords Sir Chr. Hatton, of the honourable order of the garter
knight, and chancellor of England, and Sir W. Cecill of the hon. order
of the garter knight, Lord Burleigh, lord high treasurer of England,—
We her majesty's justices, of both benches, and barons of the
exchequer, do desire your lordships that by your good means such
order may be taken that her highness's subjects may not be
committed or detained in prison, by commandment of any nobleman
or counsellor, against the laws of the realm, to the grievous charges
and oppression of her majesty's said subjects: Or else help us to
have access to her majesty, to be suitors unto her highness for the
same; for divers have been imprisoned for suing ordinary actions,
and suits at the common law, until they will leave the same, or
against their wills put their matter to order, although some time it be
after judgment and accusation.
"Item: Others have been committed and detained in prison upon such
commandment against the law; and upon the queen's writ in that
behalf, no cause sufficient hath been certified or returned.
"Item: Some of the parties so committed and detained in prison after
they have, by the queen's writ, been lawfully discharged in court,
have been eftsoones recommitted to prison in secret places, and not
in common and ordinary known prisons, as the Marshalsea, Fleet,
King's Bench, Gatehouse, nor the custodie of any sheriff, so as upon
complaint made for their delivery, the queen's court cannot learn to
whom to award her majesty's writ, without which justice cannot be
done.
"Item: Divers serjeants of London and officers have been many times
committed to prison for lawful execution of her majesty's writs out of
the King's Bench, Common Pleas, and other courts, to their great
charges and oppression, whereby they are put in such fear as they
dare not execute the queen's process.
"Item: Divers have been sent for by pursuivants for private causes,
some of them dwelling far distant from London, and compelled to pay
to the pursuivants great sums of money against the law, and have
been committed to prison till they would release the lawful benefit of
their suits, judgments, or executions for remedie, in which behalf we
are almost daily called upon to minister justice according to law,
whereunto we are bound by our office and oath.
"And whereas it pleased your lordships to will divers of us
221
to set down when a prisoner sent to custody by her majesty, her
council, or some one or two of them, is to be detained in prison, and
not to be delivered by her majesty's courts or judges:
"We think that, if any person shall be committed by her majesty's
special commandment, or by order from the council-board, or for
treason touching her majesty's person (a word of five letters follows,
illegible to me), which causes being generally returned into any court,
is good cause for the same court to leave the person committed in
custody.
"But if any person shall be committed for any other cause, then the
same ought specially to be returned."
This paper bears the original signatures of eleven judges. It has no
date, but is indorsed 5 June 1591. In the printed report, it is said to
have been delivered in Easter term 34 Eliz., that is, in 1592. The
Chancellor Hatton, whose name is mentioned, died in November
1591; so that, if there is no mistake, this must have been delivered a
second time, after undergoing the revision of the judges. And in fact
the differences are far too material to have proceeded from accidental
carelessness in transcription. The latter copy is fuller, and on the
whole more perspicuous, than the manuscript I have followed; but in
one or two places it will be better understood by comparison with it.
Proclamations unwarranted by law. —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. Temporary ordinances,
bordering at least on legislative authority, grow out of the varying
exigencies of civil society, and will by very necessity be put up with in
silence, wherever the constitution of the commonwealth does not,
directly or in effect, provide for frequent assemblies of the body in
whom the right of making or consenting to laws has been vested.
Since the English constitution has reached its zenith, we have
endeavoured to provide a remedy by statute for every possible
mischief or inconvenience; and if this has swollen our code to an
enormous redundance, till, in the labyrinth of written law, we almost
feel again the uncertainties of arbitrary power, it has at least put an
end to such exertions of prerogative as fell at once on the persons
and properties of whole classes. 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
222
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 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,[378] 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.[379] This is repeated at other times, and lastly (I mean during her reign) in 1602, with additional restrictions.[380] 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
custom, are enjoined to give them up, on pain of being punished as
felons and pirates.[381] 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. 8, 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.[382] And it has been argued by some not at all inclined to diminish any popular
223
rights, that the king did possess a prerogative by common law of
restraining the export of corn and other commodities.[383]
Restrictions on printing. —It is natural to suppose that a government
thus arbitrary and vigilant must have looked with extreme jealousy on
the diffusion of free enquiry through the press. The trades of printing
and bookselling, in fact, though not absolutely licensed, were always
subject to a sort of peculiar superintendence. Besides protecting the
copyright of authors,[384] the council frequently issued proclamations to restrain the importation of books, or to regulate their sale.[385] 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 suppressing that
light infantry of literature, the smart and vigorous pamphlets with
which the two parties arrayed against the church assaulted her
opposite flanks.[386] Stowe, the well-known chronicler of England, who lay under suspicion of an attachment to popery, had his library
searched by warrant, and his unlawful books taken away; several of
which were but materials for his history.[387] Whitgift, in this, as in every other respect, aggravated the rigour of preceding times. At his
instigation, the star-chamber, in 1585, published ordinances for the
regulation of the press. The preface of these recites enormities and
abuses of disorderly persons professing the art of printing and selling
books to have more and more increased in spite of the ordinances
made against them, which it attributes to the inadequacy of the
penalties hitherto inflicted. Every printer therefore is enjoined to
certify his presses to the Stationers' Company, on pain of having
them defaced, and suffering a year's imprisonment.
224
None to print at all, under similar penalties, except in London, and
one in each of the two universities. No printer who has only set up his
trade within six months to exercise it any longer, nor any to begin it in
future, until the excessive multitude of printers be diminished, and
brought to such a number as the Archbishop of Canterbury and
Bishop of London for the time being shall think convenient; but,
whenever any addition to the number of master printers shall be
required, the Stationers' Company shall select proper persons to use
that calling with the approbation of the ecclesiastical commissioners.
None to print any book, matter, or thing whatsoever, until it shall have
been first seen, perused, and allowed by the Archbishop of
Canterbury, or Bishop of London, except the queen's printer, to be
appointed for some special service, or law-printers, who shall require
the licence only of the chief justices. Every one selling books printed
contrary to the intent of this ordinance, to suffer three months'
imprisonment. The Stationers' Company empowered to search
houses and shops of printers and booksellers, and to seize all books
printed in contravention of this ordinance, to destroy and deface the
presses, and to arrest and bring before the council those who shall
have offended therein.[388]
The forms of English law, however inadequate to defend the subject
in state prosecutions, imposed a degree of seeming restraint on the
Crown, and wounded that pride which is commonly a yet stronger
sentiment than the lust of power, with princes and their counsellors. It
was possible that juries might absolve a prisoner; it was always
necessary that they should be the arbiters of his fate. Delays too
were interposed by the regular process; not such, perhaps, as the life
of man should require, yet enough to weaken the terrors of summary
punishment. Kings love to display the divinity with which their
flatterers invest them, in nothing so much as the instantaneous
execution of their will; and to stand revealed, as it were, in the storm
and thunderbolt, when their power breaks through the
225
operation of secondary causes, and awes a prostrate nation without
the intervention of law. There may indeed be times of pressing
danger, when the conservation of all demands the sac