1485-1603 law. 8. But the most arbitrary and violent acts of the Tudor government were those executed under the forms of Martial martial law. Any one might be punished as a rebel, or aider or abettor of rebellion, whom the provost marshal, or lieutenant of a county, or their deputies, pleased to suspect. In the fourteenth and fifteenth centuries, the court of the constable and marshal, whose jurisdiction was considered to be of a military nature, and whose proceedings were not according to the common law, sometimes tried offenders by what was called martial law; but only at the time of a serious rebellion. This tribunal fell into disuse under the Tudors. But Mary executed some of Wyatt's rebels without regular process, and she also employed martial law in defence of orthodoxy. Edward VI. also, at a time when there was no rebellion (1552), granted a commission of martial law, and empowered the commissioners to execute it at their discretion.* Queen Elizabeth was not sparing in the use of this law, even on slight occasions. In 1573, one Peter Burchell, a fanatical Puritan, conceiving that Sir Christopher Hatton was an enemy to true religion, determined to assassinate him. By mistake he wounded Sir John Hawkins, for which crime Elizabeth ordered him to be tried instantly by martial law; but the council resisted her with spirit and success. Again, in 1569, she directed a commission to Sir Thomas Wilford, whereby, because idle vagabonds and riotous persons infested the streets of London, he was to attach all such persons, have them tried by martial law, and executed upon the gallows or gibbet openly. Circumstances of which we are ignorant, no doubt, gave rise to this extraordinary commission-a stretch of prerogative without a parallel in English history; the rapid increase of London, which alarmed a government environed by bold and inveterate enemies, and entirely destitute of regular troops to withstand a sudden insurrection. Unusual suspicion was also excited at the time by the intrigues of the Jesuits in favour of Spain, and the Queen's advanced age, which renewed men's doubts as to the succession. In the same year, also, letters were written to the sheriffs and justices of divers counties, directing them to apprehend, on a certain night, all vagabonds and idle persons having no master, nor means of living, and either to commit them to prison, or pass them to their proper homes. This was repeated several times; and Strype says that 13,000 persons were thus apprehended in the north, which very much broke the rebellion attempted in that year.† 9. An arbitrary interference with the administration of justice * Hume, V., 455. + Hallam's Const. Hist., I., 240-243; Hume, V., 455-456. Unjust trials and imprisonments. CHAP. VI. was another characteristic of the Tudor rule. The integrity of the judges in Elizabeth's reign was put to the proof, as much by persecutions for seditious writings, as by charges of treason. One Stubbe, a Puritan lawyer, wrote a pamphlet against the Queen's intended marriage with the Duke of Anjou, in 1579. The publication was not a libel; but was written in a sensible manner, and with unfeigned loyalty and affection towards the Queen. Yet he was sentenced to have his right hand cut off. When the penalty was inflicted, he took off his hat with his left hand, and exclaimed, “Long live Queen Elizabeth!" Burleigh, knowing his fidelity, afterwards employed him against the popish libellers. The coercion of juries and the numerous illegal commitments gave rise to a remarkable strance of complaint by the judges presented to Sir Christopher Hatton, the chancellor, and Sir William Cecil, Lord Burleigh, the lord high treasurer. (34 Elizabeth.) They Remark able remon the judges in Elizabeth's reign 1591. complained: (1) That subjects had been committed and detained in prison, by noblemen and councillors, against the laws of the land, to force them to give up certain suits and actions at law. (2) That others had been detained upon the Queen's writ, without sufficient cause being certified or returned. (3) That those who were liberated by the Queen's writ, had been immediately recommitted to secret places, and not to the ordinary prisons or custody of any sheriff, so that justice could not be done to them. (4) That sergeants and other officers had been imprisoned for lawfully discharging their duties in releasing the prisoners. And (5) That others were sent for by pursuivants, and made to pay heavy charges, under a threat of imprisonment. (6) But they state that the Queen's special command, or order of the council, or an accusation of treason, is, in their opinion, good cause for leaving any one in custody; but that all other causes ought to be specially returned in answer to the writ of Habeas Corpus.* upon mer 10. Amidst so many infringements of the freedom of commerce, Imposition and with so precarious an enjoyment of personal liberty, of customs the English subject still continued to pride himself in chandise. his immunity from taxation without consent of parliament. Elizabeth retained, indeed, notwithstanding the complaints of the merchants at her accession, a custom upon cloths, arbitrarily imposed by her sister, and laid one herself upon sweet wines. But she made no attempt at levying internal taxes, except that the clergy were called upon, in 1586, for an aid not granted by Convocation; to which they showed no little reluctance. By dint of the most remarkable economy she contrived to keep herself independent of parliament; and during the whole course of her * Hallam's Const. Hist., I., 235-236. 1485-1603 reign, Elizabeth received only twenty subsidies, and thirty-nine fifteenths.* SECTION II. THE PARLIAMENT. 5. Parliament not entirely submissive. Although the enumeration of the foregoing acts of violence and arbitrary rule would seem to show an apparently uncontrolled career of power, the crown did not possess so absolute a dominion over parliament as to prevent its resisting these aggressions. Under Henry VIII., indeed, the parliament was servile, and Hallam says that he has only met with one instance in the reign (in 1532) where the Commons refused to pass a bill recommended by the crown.t Good, however, resulted from this servility. The laws passed to please Henry became established precedents, and the parliament thus obtained an authority which it could not have so easily acquired otherwise. For example, the parliament sanctioned attainders, and the divorce of Catherine of Arragon; and in the following reigns, this was urged to prove that the parliament had authority in regard of attainders and divorces. It also passed an act empowering the King to settle the succession to the crown as he pleased, and hence, in Elizabeth's reign, we find the parliament frequently addressing the Queen on this subject, her unmarried state, the probability of Mary's succession, &c. Though the Commons only once refused to pass a bill under Henry VIII., under Edward and Mary they rejected several; and under Elizabeth they frequently set themselves against the court. Hence, under all these three sovereigns, the government endeavoured to strengthen itself by creating new boroughs; Edward adding seventeen, Mary twenty-seven, Elizabeth sixty-two; and the sheriffs were directed to return such persons as the council named. The parliamentary history of Elizabeth's reign is particularly interesting, as illustrative of the awakening spirit of of that spirit which had kept the Plantagenets in awe. dence under The House of Commons contained "men of a bold and Elizabeth. steady patriotism, well read in the laws and records of old time, sensible to the dangers of their country and the abuses of government, and conscious that it was their privilege and their duty to watch over the common weal."§ It is not pretended, that in the four preceding reigns, there had not been men who saw that many of the acts of government were arbitrary and unconstitutional; but the instances of successful parliamentary opposition have left * Hallam's Const. Hist., I., 243-244; Hume, V., 475. Ibid, 43-46. S § ĺbid, 248. indepen † Const. Hist., I., 43. CHAP. VI. no memorial, and the debates are not preserved. Even Elizabeth's chroniclers, Holingshed and Thin, are completely barren of parliamentary information; though Camden, who is, less to be trusted, is not so restrained. But he wrote for the next generation. We begin, however, to find in this reign, more copious and unquestionable documents for parliamentary history; the journals are not entirely lost; and Sir Simon D'Ewe's journal of the debates, from 1580 to 1601, renders us, for the first time, acquainted with the names of those who swayed an English House of Commons.* There were three privileges which no sovereign or minister ever pretended to deny, as the acknowledged constitutional rights of parliament. These were: (1) The granting of subsidies, which could not be raised by any other course. (2) The enactment of statutes, which were not binding without its consent. (3) Inquiry into, and redress of public grievances, either by law or petition to the crown. For the security of these, liberty of speech and free access to the royal person, were claimed by the speaker as customary privileges, at the commencement of every session; and the disposition of the parliament to assert and maintain these privileges was bold and determined.† These kept alive 6. Addresses concerning the succession. the right of the Commons to inquire into, and advise upon, the public administration of affairs. The precariousness of Elizabeth's life was the great peril of the time; on which, the religion and independence of the kingdom depended. Hence, the Commons felt it to be their imperious duty not only to recommend her to marry, but to solicit her that some limitations of the crown should be enacted, in failure of her issue. They first took up this matter in 1562, after the Queen had been suffering under a dangerous sickness, and Elizabeth returned a courteous answer to their address. But in 1566, when it was renewed, a serious disagreement occurred. Both houses united, with a boldness of which there had, perhaps, been no example for more than a hundred years, to overcome the Queen's repugnance; and some of her own council even asserted in parliament that she ought to be forced to marry, or else a successor ought to be named by parliament against her will. When she sent a positive injunction to the speaker, forbidding the Commons to proceed any further in the business, Paul Wentworth boldly moved to know, whether this command was not against their privileges; long and sharp debates followed; and Elizabeth, who always knew when to give way, discreetly revoked her commandment. This is the most * Const. Hist., 248-249. + Ibid, 247. 1485-1603 attacks the Book, and serious disagreement on record between the crown and the Commons, since the days of Richard II. and Henry IV. 7. Puritan influence in parliament, and its effects. For the next five years Elizabeth convoked no parliament, and when they next met, in 1571, she ordered the members not to meddle with matters of state. No proceedings took place about the succession, in consequence; but the Commons entered upon a new topic, owing to the strength of the Puritans in the house. One Strickland brought in a bill for the reformation of the Prayer Strickland Book, on which he was sent for by the council, and put pr under confinement. This was noticed as an infringement is impris of their liberties; the ministers excused the act, because oned." the bill was against the Queen's prerogative and ecclesiastical supremacy; but Mr. Yelverton maintained that all matters not treasonable, nor too much to the derogation of the crown, were tolerable in the house, where all things came to be considered, and where there was such fulness of power, that even the right of the crown was determined by it. Princes were to have their prerogatives, but yet to be confined within reasonable limits. The Queen could not of herself make laws, neither could she break them. Elizabeth, seeing that the Commons would address her to restore Strickland, prudently released him; but sent them word that she would not have ecclesiastical matters dealt with by parliament. The Commons, however, persisted, and sent several bills up to the Lords, where they fell to the ground. This session was the first in which some of the abuses of Elizabeth's civil government were attacked, Mr. Bell making a motion Some memagainst an exclusive patent granted to a company of the prog Bristol merchants. Bell having been sent for by the ative. council, returned to the house, with such an amazed countenance, that it daunted all the rest," and it became the common whisper that no one must speak against licences, lest the Queen and the council should be angry. Fleetwood defended the prerogative of granting patents, on the ground that trade and commerce were entirely under the control of the sovereign; and he quoted precedents to show, that no man might speak in parliament of the royal prerogative. Sir Humphrey Gilbert carried this doctrine still further, and intimated that it was as treasonable to say that the Queen was not to use her prerogatives, as to affirm that she was not the Queen. But these speeches, though related by Hume for the purpose of defending his view of the absolute government of Elizabeth, were rather directed to * Hallam's Const. Hist., I., 253; Hume, V., 173-178. prerog |