III. Appendix of such offenders, any law or statute to the contrary in anywise notwithstanding. We have another act of hers still more extraordinary. The streets of London were much infested with idle vagabonds and riotous persons. The lord mayor had endeavoured to repress 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 commission of provostmartial; "granting him authority, and commanding him, upon signification given by the justices of peace in London or the neighbouring counties, of such offenders worthy to be speedily executed by martial law, to attach and take the same persons, and in the presence of the said justices, according to justice of martial law, to execute them upon the gallows or gibbet openly, or near to such place where the said rebellious and incorrigible offenders shall be found to have committed the said great offences." I suppose it would be difficult to produce an instance of such an act of authority in any place nearer than Muscovy. The patent of high constable, 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 VIth's reign acknowledged the jurisdiction of the constable and martial's court to be part of the law of the land'. The star-chamber, and high commission, and courtmartial, though arbitrary jurisdictions, had still some pretence of a trial, at least of a sentence; but there was a grievous punishment very generally inflicted in that age, without any other authority than the warrant of a secretary of state, or of the privy council"; and that was imprisonment in any jail, and during any time that the ministers should think proper. In suspicious times, all the jails were full of prisoners of state; and these unhappy victims of public jealousy were sometimes thrown into dungeons, and loaded with irons, and treated in the k Rymer, vol. xvi. p. 279. 7 Edw. VI. cap. 20. See Sir John Davis's Question concerning Impositions, p. 9. m In 1588, the lord mayor committed several citizens to prison, because they refused to pay the loan demanded of them. Murden, p. 632. most cruel manner, without their being able to obtain Appendix any remedy from law. This practice was an indirect way of employing torture but the rack itself, though not admitted in the ordinary execution of justice", was frequently used, upon any suspicion, by authority of a warrant from a secretary, 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 stronger proof how lightly the rack was employed than the following story told by Lord Bacon. We shall give it in his own words: "The queen was mightily incensed against Haywarde, on account of a book he dedicated to Lord Essex, being a story of the first year of Henry IV.; thinking it a seditious prelude, to put into the people's heads boldness and faction: she said, she had an opinion that there was treason in it, and asked me if I could not find any places in it, that might be drawn within the case of treason? Whereto I answered, For treason, sure I found none; but for felony very many. And when her majesty hastily asked me, Wherein? I told her, the author had committed very apparent theft: for he had taken most of the sentences of Cornelius Tacitus, and translated them into English, and put them into his text. And another time, when the queen could not be persuaded that it was his writing whose name was to it, but that it had some more mischievous author, and said, with great indignation, that she would have him racked, to produce his author; I replied, Nay, madam, he is a doctor; never rack his person, but rack his style: let him have pen, ink, and paper, and help of books, and be enjoined to continue the story where it breaketh off, and I will undertake, by collating the styles, to judge whether he 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 n Harrison, book ii. chap. 11. o Haynes, p. 196. See, farther, la Boderie, vol. i. p. 211. P To our apprehension Haywarde's book seems rather to have a contrary tendency. For he has there preserved the famous speech of the Bishop of Carlisle, which contains, in the most express terms, the doctrine of passive obedience. But Queen Elizabeth was very difficult to please on this head. 9 Cabala, p. 81, III. Appendix real offence was, his dedicating a book to that munificent patron of the learned, the Earl of Essex, at a time when this nobleman lay under her majesty's displeasure. The queen's menace, of trying and punishing Haywarde for treason, could easily have been executed, let his book have been ever so innocent. While so many terrors hung over the people, no jury durst have acquitted a man, when the court was resolved to have him condemned. The practice, also, of not confronting witnesses with the prisoner gave the crown lawyers all imaginable advantage against him. And, indeed, there scarcely occurs an instance, during all these reigns, that the sovereign or the ministers were ever disappointed in the issue of a prosecution. Timid juries, and judges who held their offices during pleasure, never failed to second all the views of the crown. And as the practice was anciently common, of fining, imprisoning, or otherwise punishing the jurors, merely at the discretion of the court, for finding a verdict contrary to the direction of these dependent judges; it is obvious that juries were then no manner of security to the liberty of the subject. The power of pressing both for sea and land service, and obliging any person to accept of any office, however mean or unfit for him, was another prerogative totally incompatible with freedom. Osborne gives the following account of Elizabeth's method of employing this prerogative. "In case she found any likely to interrupt her occasions," says he, "she did seasonably prevent him, by a chargeable employment abroad, or putting him upon some service at home, which she knew least grateful to the people contrary to a false maxim, since practised with far worse success, by such princes as thought it better husbandry to buy off enemies than reward friends'." The practice with which Osborne reproaches the two immediate successors of Elizabeth, proceeded partly from the extreme difficulty of their situation, partly from the greater lenity of their disposition. The power of pressing, as may naturally be imagined, was often abused, in other respects, by men of inferior rank; and officers often exacted money for freeing persons from the service". The government of England, during that age, how III. ever different in other particulars, bore, in this respect, Appendix some resemblance to that of Turkey at present the sovereign possessed every power, except that of imposing taxes and in both countries this limitation, unsupported by other privileges, appears rather prejudicial to the people. In Turkey, it obliges the sultan to permit the extortion of the bashaws and governors of provinces, from whom he afterwards squeezes presents, or takes forfeitures in England, it engaged the queen to erect monopolies, and grant patents for exclusive trade: an invention so pernicious, that had she gone on during a track of years at her own rate, England, the seat of riches, and arts, and commerce, would have contained at present as little industry as Morocco, or the coast of Barbary. We may farther observe, 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 predecessors. She often exacted loans from her people; an arbitrary and unequal kind of imposition, and which individuals felt severely for though the money had been regularly repaid, which was seldom the case', it lay in the prince's hands without interest, which was a sensible loss to the persons from whom the money was borrowed". There remains a proposal, made by Lord Burleigh, for levying a general loan on the people, equivalent to a subsidy"; a scheme which would have laid the burden more equally, but which was, in different words, a taxation imposed without consent of Parliament. It is remarkable, that the scheme thus proposed, without any visible necessity, by that wise minister, is the very same which Henry VIII. executed, and which Charles I., enraged by ill usage from his Parliament, and reduced to the greatest difficulties, put afterwards in practice, to the great discontent of the nation. t Bacon, vol. iv. p. 362. u In the second of Richard II. it was enacted that in loans, which the king shall require of his subjects upon letters of privy seal, such as have reasonable excuse of not lending may there be received without farther summons, travail, or grief. See Cotton's Abridg. p. 170. By this law, the king's prerogative of exacting loans was ratified; and what ought to be deemed a reasonable excuse was still left in his own breast to determine. w Haynes, p. 518, 519. Appendix The demand of benevolence was another invention of that age for taxing the people. This practice was so little conceived to be irregular, that the Commons, in 1585, offered the queen a benevolence; which she very generously refused, as having no occasion at that time for money. Queen Mary also, by an order of council, increased the customs in some branches; and her sister imitated the example. There was a species of shipmoney imposed at the time of the Spanish invasion: the several ports were required to equip a certain number of vessels at their own charge; and such was the alacrity of the people for the public defence, that some of the ports, particularly London, sent double the number demanded of them". When any levies were made for Ireland, France, or the Low Countries, the queen obliged the counties to levy the soldiers, to arm and clothe them, and carry them to the seaports at their own charge. New years' gifts were at that time expected from the nobility, and from the more considerable gentry ". Purveyance and pre-emption were also methods of taxation, unequal, arbitrary, and oppressive. The whole kingdom sensibly felt the burden of those impositions ; and it was regarded as a great privilege conferred on Oxford and Cambridge, to prohibit the purveyors from taking any commodities within five miles of these universities. The queen victualled her navy by means of this prerogative during the first years of her reign. Wardship was the most regular and legal of all these impositions by prerogative; yet was it a great badge of slavery, and oppressive to all the considerable families. When an estate devolved to a female, the sovereign obliged her to marry any one he pleased: whether the heir were male or female, the crown enjoyed the whole profit of the estate during the minority. The giving of a rich wardship was a usual method of rewarding a courtier or favourite. The inventions were endless which arbitrary power might employ for the extorting of money, while the people imagined that their property was secured by the crown's being debarred from imposing taxes. Strype has x D'Ewes, p. 494. y Bacon, vol. iv. p. 362. a Strype's Memoirs, vol. i. p. 137. z Monson, p. 267. b Camden, p. 388. |