"the right hand, from the drawn line limited by autho- Appendix "rity, and by her laws and injunctions "." III. BUT martial law went beyond even these two courts, in a prompt and arbitrary and violent method of decifion. Whenever there was any infurrection or public diforder, the crown employed martial law; and it was, during that time, exercised not only over the foldiers, but over the whole people: Any one might be punished as a rebel, or an aider and abettor of rebellion, whom the provoft-martial, or lieutenant of a county, or their deputies, pleased to fufpect. Lord Bacon fays, that the trial at common law, granted to the earl of Effex and his fellow conspirators, was a favour: For that the cafe would have borne and required the severity of martial law". We have seen inftances of its being employed by queen Mary in defence of orthodoxy. There remains a letter of queen Elizabeth's to the earl of Suffex, after the fuppreffion of the northern rebellion, in which the reproves him tharply, because he had not heard of his having executed any criminals by martial law, though it is probable, that near eight hundred perfons fuffered, one way or other, on account of that flight infurrection. But the kings of England did not always limit the exercise of this law to the times of civil war and diforder. In 1552, when there was no rebellion, nor infurrection, king Edward granted a commiffion of martial law; and empowered the commiffioners to execute it, as fhould be thought by their difcretions most neceffary R. Queen Elizabeth too was not fparing in the use of this law. In 1573, one Peter Burchet, à puritan, being perfuaded that it was meritorious to kill fuch as oppofed the truth of the gofpel, ran into the streets, and wounded Hawkins, the famous fea-captain, whom he took for Hatton, the queen's favourite. The queen was fo incenfed, that the ordered him to be punished inftantly by martial law; but upon the remonstrance of fome prudent counfellors, who told her, that this law was ufually confined to turbulent times, the recalled her order, and delivered over Burchet to the common laws. But the continued not always fo referved in exerting this authority. There remains a proclamation of hers, in which the orders O Murden, p. 183. P Vol. iv. p. 510. lord Royston's from the paper office. Memoirs, vol. ii. p. 373, 458, 9. Strype, vol. ii. p. 288. QMS. of Appendix orders martial law to be used against all fuch as import bulls, III. or even forbidden books and pamphlets from abroad TM; and prohibits the queftioning of the lieutenants or their deputies, for their arbitrary punishment of fuch offenders, any law or ftatute to the contrary in any wife notwithstanding. We have another act of hers ftill more extraordinary. The streets of London were much infested with idle vagabonds and riotous perfons: The lord mayor had endeavoured to reprefs this disorder: The Star-chamber had exerted its authority, and inflicted punishment on these rioters: But the queen, finding those remedies ineffectual, revived martial law, and gave Sir Thomas Wilford a commiffion of provost-martial: "Granting him 66 authority, and commanding him, upon fignification "given by the juftices of peace in London, or the neigh"bouring counties, of fuch offenders, worthy to be spee 66 dily executed by martial law, to attach and take the "fame perfons, and in the presence of the faid juftices, 66 according to juftice of martial law, to execute them upon the gallows or gibbet openly, or near to fuch "place where the faid rebellious and incorrigible offenders hall be found to have committed the faid great of"" fences "." U 1 fuppofe it will be difficult to produce an inftance of fuch an act of authority in any place nearer than Muscovy. The patent of High Conftable, granted to earl Rivers by Edward IV. proves the nature of the office. The powers are unlimited, perpetual, and remain in force, during peace, as well as during war and rebellion. The parliament, in Edward the VIth's reign, acknowledged the jurifdiction of the Conftable and Marshal'scourt to be part of the law of the land †. THE Star-chamber, and High Commiffion, and Courtmartial, though arbitrary jurifdictions, yet had ftill fome pretence of a trial, at least of a sentence; but there was a grievous punishment very familiarly inflicted in that age, without any other authority than the warrant of a fecretary of state, or of the privy council; and that was, imprifonment, in any jail, and during any time that the minifters T Strype, vol. iii. p. 570. U Rymer, tom. xvi. p. 279. † 37 Edw. VI. cap. zo. See Sir John Davis's question concerning impofitions, p. 9. X In 1588, the lord mayor committed feveral citizens to prifon, because they refused to pay the loan demanded of them. Murden, p. 632. III. minifters fhould think proper. In fufpicious times, all Appendix THIS practice was an indirect way of employing torture: But the rack itself, though not admitted in the ordinary execution of justice*, was frequently ufed, upon any fufpicion, without other authority than a warrant from the fecretary or the privy council. Even the council in the marches of Wales was empowered, by their very commission, to make use of torture, whenever they thought proper There cannot be a ftronger proof how lightly the rack was employed, than the following ftory, told by lord Bacon. We shall give it in his own words. "The queen was mightily incenfed against Hay"warde, on account of a book he dedicated to lord Ef"fex, being a story of the first year of king Henry the "fourth, thinking it a feditious prelude to put into the <6 people's heads boldness and faction: She faid, the 66 Y *Harrison, book ii. chap. 11. Y Haynes, p. 196. See farther la Boderie, vol. i. p. 211. Z To our apprehenfion, Haywarde's book feems rather to have a contrary tendency. For he has there preferved the famous fpecch of the bishop of Carlisle, which contains, in the most express terms, the doctrine of paffive obedience. But queen Elizabeth was very difficult to please on this head. Appendix ❝ continue the story where it breaketh off, and I will unIII. "dertake, by collating the styles to judge whether he 66 were the author or no ^." Thus, had it not been for Bacon's humanity, or rather his wit, this author, a man of letters, had been put to the rack, for a most innocent performance. His real offence was, his dedicating a book to that munificent patron of the learned, the earl of Effex, at a time when this nobleman lay under disgrace with her majefty. THE queen's menace, of trying and punishing Haywarde for treafon, could easily have been executed, let his book have been ever fo innocent. While fo many terrors hung over the people, no jury durft have acquitted a man whom the court was refolved to have condemned. The practice alfo, of not confronting witneffes with the prifoner, gave the crown lawyers all imaginable advantage against him. And, indeed, there scarcely occurs an inftance, during all these reigns, that the fovereign, or the minifters, were ever difappointed in the iffue of a profecution. Timid juries, and judges who held their offices during pleasure, never failed to fecond all the views of the court. 66 66 The power of preffing, and obliging any perfon to accept of any office, however mean or unfit for him, was another prerogative totally incompatible with freedom. Ofborne gives the following account of Elizabeth's method of employing this prerogative." In cafe the found any likely to interrupt her occafions," fays he," the "did feasonably prevent him by a chargeable employment abroad, or putting him upon fome fervice at "home, which the knew leaft grateful to the people: "Contrary to a falfe maxim, fince practifed with far "worfe fuccefs, by fuch princes as thought it better hufbandry to buy off enemies than reward friends & " The practice, with which Ofborne reproaches the two immediate fucceffors of Elizabeth, proceeded, partly from the extreme difficulty of their fituation, partly from the greater lenity of their difpofition. The power of preffing, as may naturally be imagined, was often abused, in other refpects by men of inferior rank; and officers often exacted money for freeing perfons from the fervice C. 66 • THE A Cabbala. p. 81. B Page 392. C Murden, p. 181. III. THE government of England during that age, howe- Appendix ver different in other particulars, bore, in this refpect, some resemblance to that of Turkey at prefent: The fovereign poffeffed every power, except that of impofing taxes: And in both countries this limitation, unfupported by other privileges, appears rather prejudicial to the peo. ple. In Turkey, it obliges the Sultan to permit the extortion of the bafhas 'and governors of provinces, from whom he afterwards fqueezes prefents or takes forfeitures : In England, it engaged the queen to erect the monopolies, and grant patents for exclufive trade: An invention fo pernicious, that, had the gone on, during a tract of years, at her own rate, England, the feat of riches, and arts, and commerce, would have contained at present as little industry as Morocco, on the coaft of Barbary. We may further obferve, that this valuable privilege, valuable only because it proved afterwards the means by which the parliament extorted all their other privileges, was very much encroached on, in an indirect manner, during the reign of Elizabeth, as well as of her predeceffors. She often exacted loans from her people; an arbitrary and unequal kind of impofition, and which individuals felt feverely: For though the money had been regularly restored, which was feldom the cafe D, it lay in the prince's hands without intereft, which was a fenfible lofs to the perfons from whom the money was borrowed E. F THERE remains a propofal made by lord Burleigh, for levying a general loan from the people, equivalent to a fubfidy ; a fcheme which would have laid the burthen more equally, but which was, in different words, nothing but a taxation, imposed without confent of parliament. It is remarkable, that the scheme, thus propofed, without any visible neceffity, by that wife minifter, is the very fame which Henry the eighth attempted, and which Bb 2 Charles D Bacon, vol. iv. p. 362. F |
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