God and their conscience, which should have been heard in the sanctuaries of justice, as fountains springing fresh from the lap of earth, became, like waters constrained in their course by art, stagnant and impure. Until this weight that hung upon the constitution should be taken off, there was literally no prospect of enjoying with security those civil privileges which it held forth.375
Illegal commitments.—It cannot be too frequently repeated, that no power of arbitrary detention has ever been known to our constitution since the charter obtained at Runnymede. The writ of habeas corpus has always been a matter of right. But as may naturally be imagined, no right of the subject, in his relation to the Crown, was preserved with greater difficulty. Not only the privy council in general arrogated to itself a power of discretionary imprisonment, into which no inferior court was to enquire, but commitments by a single counsellor appear to have been frequent. These abuses gave rise to a remarkable complaint of the judges, which, though an authentic recognition of the privilege of personal freedom against such irregular and oppressive acts of individual ministers, must be admitted to leave by far too great latitude to the executive government, and to surrender, at least by implication from rather obscure language, a great part of the liberties which many statutes had confirmed.376 This is contained in a passage from Chief Justice Anderson's Reports. But as there is an original manuscript in the British Museum, differing in some material points from the print, I shall follow it in preference.377
Remonstrance of judges against them.—"To the Rt. Hon. our very good lords Sir Chr. Hatton, of the honourable order of the garter knight, and chancellor of England, and Sir W. Cecill of the hon. order of the garter knight, Lord Burleigh, lord high treasurer of England—We her majesty's justices, of both benches, and barons of the exchequer, do desire your lordships that by your good means such order may be taken that her highness's subjects may not be committed or detained in prison, by commandment of any nobleman or counsellor, against the laws of the realm, to the grievous charges and oppression of her majesty's said subjects: Or else help us to have access to her majesty, to be suitors unto her highness for the same; for divers have been imprisoned for suing ordinary actions, and suits at the common law, until they will leave the same, or against their wills put their matter to order, although some time it be after judgment and accusation.
"Item: Others have been committed and detained in prison upon such commandment against the law; and upon the queen's writ in that behalf, no cause sufficient hath been certified or returned.
"Item: Some of the parties so committed and detained in prison after they have, by the queen's writ, been lawfully discharged in court, have been eftsoones recommitted to prison in secret places, and not in common and ordinary known prisons, as the Marshalsea, Fleet, King's Bench, Gatehouse, nor the custodie of any sheriff, so as upon complaint made for their delivery, the queen's court cannot learn to whom to award her majesty's writ, without which justice cannot be done.
"Item: Divers serjeants of London and officers have been many times committed to prison for lawful execution of her majesty's writs out of the King's Bench, Common Pleas, and other courts, to their great charges and oppression, whereby they are put in such fear as they dare not execute the queen's process.
"Item: Divers have been sent for by pursuivants for private causes, some of them dwelling far distant from London, and compelled to pay to the pursuivants great sums of money against the law, and have been committed to prison till they would release the lawful benefit of their suits, judgments, or executions for remedie, in which behalf we are almost daily called upon to minister justice according to law, whereunto we are bound by our office and oath.
"And whereas it pleased your lordships to will divers of us to set down when a prisoner sent to custody by her majesty, her council, or some one or two of them, is to be detained in prison, and not to be delivered by her majesty's courts or judges:
"We think that, if any person shall be committed by her majesty's special commandment, or by order from the council-board, or for treason touching her majesty's person (a word of five letters follows, illegible to me), which causes being generally returned into any court, is good cause for the same court to leave the person committed in custody.
"But if any person shall be committed for any other cause, then the same ought specially to be returned."
This paper bears the original signatures of eleven judges. It has no date, but is indorsed 5 June 1591. In the printed report, it is said to have been delivered in Easter term 34 Eliz., that is, in 1592. The Chancellor Hatton, whose name is mentioned, died in November 1591; so that, if there is no mistake, this must have been delivered a second time, after undergoing the revision of the judges. And in fact the differences are far too material to have proceeded from accidental carelessness in transcription. The latter copy is fuller, and on the whole more perspicuous, than the manuscript I have followed; but in one or two places it will be better understood by comparison with it.
Proclamations unwarranted by law.—It was a natural consequence, not more of the high notions entertained of prerogative than of the very irregular and infrequent meeting of parliament, that an extensive and somewhat indefinite authority should be arrogated to proclamations of the king in council. Temporary ordinances, bordering at least on legislative authority, grow out of the varying exigencies of civil society, and will by very necessity be put up with in silence, wherever the constitution of the commonwealth does not, directly or in effect, provide for frequent assemblies of the body in whom the right of making or consenting to laws has been vested. Since the English constitution has reached its zenith, we have endeavoured to provide a remedy by statute for every possible mischief or inconvenience; and if this has swollen our code to an enormous redundance, till, in the labyrinth of written law, we almost feel again the uncertainties of arbitrary power, it has at least put an end to such exertions of prerogative as fell at once on the persons and properties of whole classes. It seems by the proclamations issued under Elizabeth, that the Crown claimed a sort of supplemental right of legislation, to perfect and carry into effect what the spirit of existing laws might require, as well as a paramount supremacy, called sometimes the king's absolute or sovereign power, which sanctioned commands beyond the legal prerogative, for the sake of public safety, whenever the council might judge that to be in hazard. Thus we find anabaptists, without distinction of natives or aliens, banished the realm; Irishmen commanded to depart into Ireland; the culture of woad,378 and the exportation of corn, money, and various commodities, prohibited; the excess of apparel restrained. A proclamation in 1580 forbids the erection of houses within three miles of London, on account of the too great increase of the city, under the penalty of imprisonment and forfeiture of the materials.379 This is repeated at other times, and lastly (I mean during her reign) in 1602, with additional restrictions.380 Some proclamations in this reign hold out menaces, which the common law could never have executed on the disobedient. To trade with the French king's rebels, or to export victuals into the Spanish dominions (the latter of which might possibly be construed into assisting the queen's enemies) incurred the penalty of treason. And persons having in their possession goods taken on the high seas, which had not paid custom, are enjoined to give them up, on pain of being punished as felons and pirates.381 Notwithstanding these instances, it cannot perhaps be said on the whole that Elizabeth stretched her authority very outrageously in this respect. Many of her proclamations, which may at first sight appear illegal, are warrantable by statutes then in force, or by ancient precedents. Thus the council is empowered by an act (28 H. 8, c. 14) to fix the prices of wines; and abstinence from flesh in Lent, as well as on Fridays and Saturdays (a common subject of Elizabeth's proclamations), is enjoined by several statutes of Edward VI. and of her own.382 And it has been argued by some not at all inclined to diminish any popular rights, that the king did possess a prerogative by common law of restraining the export of corn and other commodities.383
Restrictions on printing.—It is natural to suppose that a government thus arbitrary and vigilant must have looked with extreme jealousy on the diffusion of free enquiry through the press. The trades of printing and bookselling, in fact, though not absolutely licensed, were always subject to a sort of peculiar superintendence. Besides protecting the copyright of authors,384 the council frequently issued proclamations to restrain the importation of books, or to regulate their sale.385 It was penal to utter, or so much as to possess, even the most learned works on the catholic side; or if some connivance