The History of England - Vols. 1 to 6 (322 page)

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 dependant 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.”
c
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.d

The government of England during that age, however different in other particulars, bore, in this respect, some resemblance to that of Turkey at present: The sovereign possessed every power, except that of imposing taxes: And in both countries this PLL v6.0 (generated September, 2011)

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limitation, unsupported by other privileges, appears rather prejudicial to the people. In Turkey, it obliges the Sultan to permit the extortion of the bashas 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 repayed, which was seldom the case,
e
it lay in the prince’s hands without interest, which was a sensible loss to the persons from whom the

money was borrowed.f

There remains a proposal made by lord Burleigh, for levying a general loan on the

people, equivalent to a subsidy;g
a scheme which would have laid the burthen 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.

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.
h
Queen Mary also, by an order of council, encreased the customs in some branches; and her sister imitated the example.
i
There was a species of ship money 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.
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When any levies were made for Ireland, France, or the Low Countries, the queen obliged the counties to levy the soldiers, to arm and cloath them, and carry them to the sea-ports at their own charge. New-year’s gifts were, at that time, expected from the nobility, and from the more considerable gentry.
l

Purveyance and pre-emption were also methods of taxation, unequal, arbitrary, and oppressive. The whole kingdom sensibly felt the burthen 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.m

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 PLL v6.0 (generated September, 2011)

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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 preserved a speech of lord Burleigh to the queen and council, in which are contained some particulars not a little

extraordinary.n
Burleigh proposes, that she should erect a court for the correction of all abuses, and should confer on the commissioners a general inquisitorial power over the whole kingdom. He sets before her the example of her wise grandfather, Henry VII. who, by such methods, extremely augmented his revenue; and he recommends, that this new court should proceed, “as well by the direction and ordinary course of the laws, as by virtue of her majesty’s supreme regiment and
absolute power, from
whence law proceeded.”
In a word he expects from this institution, greater accession to the royal treasure, than Henry VIII. derived from the abolition of the abbeys, and all the forfeitures of ecclesiastical revenues. This project of lord Burleigh’s needs not, I think, any comment. A form of government must be very arbitrary indeed, where a wise and good minister could make such a proposal to the sovereign.

Embargoes on merchandize was another engine of royal power, by which the English princes were able to extort money from the people. We have seen instances in the reign of Mary. Elizabeth, before her coronation, issued an order to the custom house, prohibiting the sale of all crimson silks, which should be imported, till the court were first supplied.
o
She expected, no doubt, a good penny-worth from the merchants, while they lay under this restraint.

The parliament pretended to the right of enacting laws, as well as of granting subsidies; but this privilege was, during that age, still more insignificant than the other. Queen Elizabeth expressly prohibited them from meddling either with state matters or ecclesiastical causes; and she openly sent the members to prison, who dared to transgress her imperial edict in these particulars. There passed few sessions of parliament, during her reign, where there occur not instances of this arbitrary conduct.

But the legislative power of the parliament was a mere fallacy; while the sovereign was universally acknowledged to possess a dispensing power, by which all the laws could be invalidated, and rendered of no effect. The exercise of this power was also an indirect method practised for erecting monopolies. Where the statutes laid any branch of manufacture under restrictions, the sovereign, by exempting one person from the laws, gave him in effect the monopoly of that commodity.
p
There was no grievance, at that time, more universally complained of, than the frequent dispensing with the penal laws.
q

But in reality, the crown possessed the full legislative power, by means of proclamations, which might affect any matter, even of the greatest importance, and which the Star-chamber took care to see more rigorously executed than the laws PLL v6.0 (generated September, 2011)

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themselves. The motives for these proclamations were sometimes frivolous and even ridiculous. Queen Elizabeth had taken offence at the smell of woad; and she issued an

edict prohibiting any one from cultivating that useful plant.r
She was also pleased to take offence at the long swords and high ruffs then in fashion: She sent about her officers, to break every man’s sword, and clip every man’s ruff, which was beyond a certain dimension.
s
This practice resembles the method employed by the great Czar Peter, to make his subjects change their garb.

The queen’s prohibition of the
prophesyings,
or the assemblies, instituted for fanatical prayers and conferences, was founded on a better reason; but shews still the unlimited extent of her prerogative. Any number of persons could not meet together, in order to read the scriptures, and confer about religion, though in ever so orthodox a manner, without her permission.

There were many other branches of prerogative incompatible with an exact or regular enjoyment of liberty. None of the nobility could marry without permission from the sovereign. The queen detained the earl of Southampton long in prison, because he

privately married the earl of Essex’s cousin.t
No man could travel without the consent of the prince. Sir William Evers underwent a severe persecution, because he had

presumed to pay a private visit to the king of Scots.u
The sovereign even assumed a supreme and uncontrouled authority over all foreign trade; and neither allowed any person to enter or depart the kingdom, nor any commodity to be imported or exported,

without his consent.w

The parliament, in the thirteenth of the queen, praised her for not imitating the practice, usual among her predecessors, of stopping the course of justice by particular

warrants.x
There could not possibly be a greater abuse, nor a stronger mark of arbitrary power; and the queen, in refraining from it, was very laudable. But she was by no means constant in this reserve. There remain in the public records some warrants of her’s for exempting particular persons from all lawsuits and prosecutions;
y
and these warrants, she says, she grants from her royal prerogative, which she will not allow to be disputed.

It was very usual in queen Elizabeth’s reign, and probably in all the preceding reigns, for noblemen or privy-counsellors to commit to prison any one, who had happened to displease them by suing for his just debts; and the unhappy person, though he gained his cause in the courts of justice, was commonly obliged to relinquish his property in order to obtain his liberty. Some likewise, who had been delivered from prison by the judges, were again committed to custody in secret places, without any possibility of obtaining relief; and even the officers and serjeants of the courts of law were punished for executing the writs in favour of these persons. Nay, it was usual to send for people by pursuivants, a kind of harpies, who then attended the orders of the council and high commission; and they were brought up to London, and constrained by imprisonment, not only to withdraw their lawful suits, but also to pay the pursuivants great sums of money. The judges, in the 34th of the queen, complain to her majesty of the frequency of this practice. It is probable, that so egregious a tyranny was carried no farther down than the reign of Elizabeth; since the parliament, who presented the petition of right, found no later instances of it.
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And even these very judges of Elizabeth, who thus PLL v6.0 (generated September, 2011)

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protect the people against the tyranny of the great, expressly allow, that a person, committed by special command of the queen, is not bailable.

It is easy to imagine, that, in such a government, no justice could, by course of law, be obtained of the sovereign, unless he were willing to allow it. In the naval expedition, undertaken by Raleigh and Frobisher against the Spaniards, in the year 1592, a very rich carrack was taken, worth two hundred thousand pounds. The queen’s share in the adventure was only a tenth; but as the prize was so great, and exceeded so much the expectation of all the adventurers, she was determined not to rest contented with her share. Raleigh humbly and earnestly begged her to accept of a hundred thousand pounds, in lieu of all demands, or rather extortions; and says, that the present, which the proprietors were willing to make her, of eighty thousand pounds, was the greatest

that ever prince received from a subject.a

But it is no wonder the queen, in her administration, should pay so little regard to liberty; while the parliament itself, in enacting laws, was entirely negligent of it. The persecuting statutes, which they passed against papists and puritans, are extremely contrary to the genius of freedom; and by exposing such multitudes to the tyranny of priests and bigots, accustomed the people to the most disgraceful subjection. Their conferring an unlimited supremacy on the queen, or what is worse, acknowledging her inherent right to it, was another proof of their voluntary servitude.