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The court of high commission was another jurisdiction still more terrible; both because the crime of heresy, of which it took cognizance, was more undefinable than any civil offence, and because its methods of inquisition, and of administering oaths, were more contrary to all the most simple ideas of justice and equity. The fines and imprisonments imposed by this court were frequent: the deprivations and suspensions of the clergy for nonconformity were also numerous, and comprehended at one time the third of all the ecclesiastics of England.[*] The queen, in a letter to the archbishop of Canterbury, said expressly, that she was resolved “that no man should be suffered to decline, either on the left or on the right hand, from the drawn line limited by authority, and by her laws and injunctions.”[**]

But martial law went beyond even these two courts in a prompt, and arbitrary, and violent method of decision. Whenever there was any insurrection or public disorder, the crown employed martial law; and it was, during that time, exercised not only over the soldiers, but over the whole people; any one might be punished as a rebel, or an aider and abettor of rebellion, whom the provost martial, or lieutenant of a county, or their deputies, pleased to suspect. Lord Bacon says, that the trial at common law granted to the earl of Essex and his fellow-conspirators, was a favor; for that the case would have borne and required the severity of martial law.[***]

* Neal, vol. i. p. 479.

** Vol. iv. p. 510.

**** Murden, p. 183.

We have seen instances of its being employed by Queen Mary in defence of orthodoxy. There remains a letter of Queen Elizabeth’s to the earl of Sussex, after the suppression of the northern rebellion, in which she sharply reproves him, because she had not heard of his having executed any criminals by martial law;[*] though it is probable that near eight hundred persons suffered, one way or other, on account of that slight insurrection. But the kings of England did not always limit the exercise of this law to times of civil war and disorder. In 1552, when there was no rebellion or insurrection, King Edward granted a commission of martial law; and empowered the commissioners to execute it, “as should be thought by their discretions most necessary.”[**] Queen Elizabeth too was not sparing in the use of this law. In 1573, one Peter Burchet, a Puritan, being persuaded that it was meritorious to kill such as opposed the truth of the gospel, ran into the streets, and wounded Hawkins, the famous sea captain, whom he took for Hatton, the queen’s favorite. The queen was so incensed, that she ordered him to be punished instantly by martial law; but upon the remonstrance of some prudent counsellors, who told her that this law was usually confined to turbulent times, she recalled her order, and delivered over Burchet to the common law.[***] But she continued not always so reserved in executing this authority. There remains a proclamation of hers, in which she orders martial law to be used against all such as import bulls, or even forbidden books and pamphlets from abroad;[****] and prohibits the questioning of the lieutenants or their deputies for their arbitrary punishment of such offenders, “any law or statute to the contrary in anywise notwithstanding.”

* MS. of Lord Royston’s, from the paper office.

** Strype’s Eccles. Memoirs, vol. ii. p. 373, 458, 459.

*** Camden, p. 446. Strype, vol. ii. p. 288.

**** Strype, vol. iii. p. 570

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 endeavored 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 provost-martial: “Granting him authority, and commanding him, upon signification given by the justices of peace in London or the neighboring 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 VI.‘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 court martial, 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 most cruel manner, without their being able to obtain 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.[v]

* Rymer, vol. xvi. p. 279.

** 7 Edw. VI. cap. 20. See Sir John Davis’s Question
concerning Impositions, p. 9.

*** In 1588, the lord mayor committed several citizens to
prison, because they refused to pay the loan demanded of
them. Murden, p. 632.

**** Harrison, chap. 11.

v    Haynes, p 196. See further, La Boderie, vol. i. p. 211.

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 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.