Page 101 of 162

* It was never fully established that the prisoner could
legally produce evidence against the crown, till after the
revolution. See Blackstone’s Commentaries, vol. iv. p. 352.

** State Trials, vol. i. p. 144. Strype, voL iv. p. 21.
Strype’s Life of Whitgift, p. 343.

The case of Penry was, if possible, still hardier. This man was a zealous Puritan, or rather a Brownist, a small sect, which afterwards increased, and received the name of “Independents.” He had written against the hierarchy several tracts, such as Martin Marprelate, Theses Martinian, and other compositions, full of low scurrility and petulant satire. After concealing himself for some years, he was seized; and as the statute against seditious words required that the criminal should be tried within a year after committing the offence, he could not be indicted for his printed books. He was therefore tried for some papers found in his pocket, as if he had thereby scattered sedition.[*] It was also imputed to him, by the lord keeper, Puckering, that in some of these papers, “he had only acknowledged her majesty’s royal power to establish laws ecclesiastical and civil; but had avoided the usual terms of making, enacting, decreeing, and ordaining laws; which imply,” says the lord keeper, “a most absolute authority.”[**] Penry for these offences was condemned and executed.

Thus we have seen, that the “most absolute” authority of the sovereign, to make use of the lord keeper’s expression was established on above twenty branches of prerogative, which are now abolished, and which were, every one of them totally incompatible with the liberty of the subject. But what insured more effectually the slavery of the people, than even these branches of prerogative, was, the established principles of the times, which attributed to the prince such an unlimited and indefeasible power, as was supposed to be the origin of all law, and could be circumscribed by none. The homilies published for the use of the clergy, and which they were enjoined to read every Sunday in all the churches, inculcate every where a blind and unlimited passive obedience to the prince, which on no account, and under no pretence, is it ever lawful for subjects in the smallest article to depart from or infringe. Much noise has been made because some court chaplains, during the succeeding reigns, were permitted to preach such doctrines; but there is a great difference between these sermons, and discourses published by authority, avowed by the prince and council, and promulgated to the whole nation.[***]

* Strype’s Life of Whitgift, book iv. chap. 11. Neal, vol.
i. p. 564.

** Strype’s Annals, vol. iv. p. 177.

*** Gifford, a clergyman, was suspended in the year 1584,
for preaching up a limited obedience to the civil
magistrate, Neal, vol. i. p. 435.

So thoroughly were these principles imbibed by the people, during the reigns of Elizabeth and her predecessors, that opposition to them was regarded as the most flagrant sedition; and was not even rewarded by that public praise and approbation, which can alone support men under such dangers and difficulties as attend the resistance of tyrannical authority.[*] It was only during the next generation that the noble principles of liberty took root, and spreading themselves under the shelter of Puritanical absurdities, became fashionable among the people.

It is worth remarking, that the advantage usually ascribed to absolute monarchy, a greater regularity of police, and a more strict execution of the laws, did not attend the former English government, though in many respects it fell under that denomination. A demonstration of this truth is contained in a judicious paper which is preserved by Strype,[**] and which was written by an eminent justice of peace of Somersetshire, in the year 1596, near the end of the queen’s reign; when the authority of that princess may be supposed to be fully corroborated by time, and her maxims of government improved by long practice.

* It is remarkable, that in all the historical plays of
Shakspeare, where the manners and characters, and even the
transactions of the several reigns, are so exactly copied,
there is scarcely any mention of civil liberty, which some
pretended historians have imagined to be the object of all
the ancient quarrels, insurrections, and civil wars. In the
elaborate panegyric of England, contained in the tragedy of
Richard II., and the detail of its advantages, not a word of
its civil constitution, as anywise different from or
superior to that of other European kingdoms; an omission
which cannot be supposed in any English author that wrote
since the restoration, at least since the revolution.

** Annals, vol. iv. p. 290

This paper contains an account of the disorders which then prevailed in the county of Somerset. The author says, that forty persons had there been executed in a year for robberies, thefts, and other felonies; thirty-five burnt in the hand, thirty-seven whipped, one hundred and eighty-three discharged: that those who were discharged were most wicked and desperate persons, who never could come to any good, because they would not work, and none would take them into service: that notwithstanding this great number of indictments, the fifth part of the felonies committed in the county were not brought to trial; the greater number escaped censure, either from the superior cunning of the felons, the remissness of the magistrates, or the foolish lenity of the people: that the rapines committed by the infinite number of wicked, wandering, idle people, were intolerable to the poor countrymen, and obliged them to keep a perpetual watch over their sheepfolds, their pastures, their woods, and their cornfields: that the other counties of England were in no better condition than Somersetshire; and many of them were even in a worse: that there were at least three or four hundred able-bodied vagabonds in every county, who lived by theft and rapine; and who sometimes met in troops to the number of sixty, and committed spoil on the inhabitants: that if all the felons of this kind were assembled, they would be able, if reduced to good subjection, to give the greatest enemy her majesty has a “strong battle:” and that the magistrates themselves were intimidated from executing the laws upon them; and there were instances of justices of peace who, after giving sentence against rogues, had interposed to stop the execution of their own sentence, on account of the danger which hung over them from the confederates of these felons.

In the year 1575, the queen complained in parliament of the bad execution of the laws; and threatened, that if the magistrates were not for the future more vigilant, she would intrust authority to indigent and needy persons, who would find an interest in a more exact administration of justice.[*] It appears that she was as good as her word. For in the year 1601, there were great complaints made in parliament of the rapine of justices of peace; and a member said, that this magistrate was an animal who, for half a dozen of chickens, would dispense with a dozen of penal statutes.[**] It is not easy to account for this relaxation of government, and neglect of police, during a reign of so much vigor as that of Elizabeth. The small revenue of the crown is the most likely cause that can be assigned. The queen had it not in her power to interest a great number in assisting her to execute the laws.[***] 39

* D’Ewes, p. 234.

** D’Ewes, p. 661-694.

*** See note MM, at the end of the volume.

On the whole, the English have no reason, from the example of their ancestors, to be in love with the picture of absolute monarchy; or to prefer the unlimited authority of the prince and his unbounded prerogatives, to that noble liberty, that sweet equality, and that happy security, by which they are at present distinguished above all nations in the universe. The utmost that can be said in favor of the government of that age and perhaps it may be said with truth, is, that the power of the prince, though really unlimited, was exercised after the European manner, and entered not into every part of the administration; that the instances of a high exerted prerogative were not so frequent as to render property sensibly insecure, or reduce the people to a total servitude; that the freedom from faction, the quickness of execution, and the promptitude of those measures which could be taken for offence or defence, made some compensation for the want of a legal and determinate liberty; that as the prince commanded no mercenary army, there was a tacit check on him, which maintained the government in that medium, to which the people had been accustomed; and that this situation of England, though seemingly it approached nearer, was in reality more remote from a despotic and Eastern monarchy, than the present government of that kingdom, where the people, though guarded by multiplied laws, are totally naked, defenceless, and disarmed; and besides, are not secured by any middle power, or independent powerful nobility, interposed between them and the monarch.