CHAPTER III

ON THE LAWS OF ELIZABETH'S REIGN RESPECTING THE ROMAN CATHOLICS

_Change of religion on the queen's accession._--The accession of

Elizabeth, gratifying to the whole nation on account of the late queen's

extreme unpopularity, infused peculiar joy into the hearts of all

well-wishers to the Reformation. Child of that famous marriage which had

severed the connection of England with the Roman see, and trained

betimes in the learned and reasoning discipline of protestant theology,

suspected and oppressed for that very reason by a sister's jealousy, and

scarcely preserved from the death which at one time threatened her,

there was every ground to be confident, that, notwithstanding her forced

compliance with the catholic rites during the late reign, her

inclinations had continued steadfast to the opposite side.[155] Nor was

she long in manifesting this disposition sufficiently to alarm one

party, though not entirely to satisfy the other. Her great prudence, and

that of her advisers, which taught her to move slowly, while the temper

of the nation was still uncertain, and her government still embarrassed

with a French war and a Spanish alliance, joined with a certain tendency

in her religious sentiments not so thoroughly protestant as had been

expected, produced some complaints of delay from the ardent reformers

just returned from exile. She directed Sir Edward Karn, her sister's

ambassador at Rome, to notify her accession to Paul IV. Several catholic

writers have laid stress on this circumstance as indicative of a desire

to remain in his communion; and have attributed her separation from it

to his arrogant reply, commanding her to lay down the title of royalty,

and to submit her pretentions to his decision. But she had begun to make

alterations, though not very essential, in the church service, before

the pope's behaviour could have become known to her; and the bishops

must have been well aware of the course she designed to pursue, when

they adopted the violent and impolitic resolution of refusing to

officiate at her coronation.[156] Her council was formed of a very few

catholics, of several pliant conformists with all changes, and of some

known friends to the protestant interest. But two of these, Cecil and

Bacon, were so much higher in her confidence, and so incomparably

superior in talents to the other counsellors, that it was evident which

way she must incline.[157] The parliament met about two months after her

accession. The creed of parliament from the time of Henry VIII. had been

always that of the court; whether it were that elections had constantly

been influenced, as we know was sometimes the case, or that men of

adverse principles, yielding to the torrent, had left the way clear to

the partisans of power. This first, like all subsequent parliaments, was

to the full as favourable to protestantism as the queen could desire:

the first fruits of benefices, and, what was far more important, the

supremacy in ecclesiastical affairs, were restored to the Crown; the

laws made concerning religion in Edward's time were re-enacted. These

acts did not pass without considerable opposition among the lords; nine

temporal peers, besides all the bishops, having protested against the

bill of uniformity establishing the Anglican liturgy, though some pains

had been taken to soften the passages most obnoxious to catholics.[158]

But the act restoring the royal supremacy met with less resistance;

whether it were that the system of Henry retained its hold over some

minds, or that it did not encroach, like the former, on the liberty of

conscience, or that men not over-scrupulous were satisfied with the

interpretation which the queen caused to be put upon the oath.

Several of the bishops had submitted to the Reformation under Edward VI.

But they had acted, in general, so conspicuous a part in the late

restoration of popery, that, even amidst so many examples of false

profession, shame restrained them from a second apostasy. Their number

happened not to exceed sixteen, one of whom was prevailed on to conform;

while the rest, refusing the oath of supremacy, were deprived of their

bishoprics by the court of ecclesiastical high commission. In the summer

of 1559, the queen appointed a general ecclesiastical visitation, to

compel the observance of the protestant formularies. It appears from

their reports that only about one hundred dignitaries, and eighty

parochial priests, resigned their benefices, or were deprived.[159] Men

eminent for their zeal in the protestant cause, and most of them exiles

during the persecution, occupied the vacant sees. And thus, before the

end of 1559, the English church, so long contended for as a prize by the

two religions, was lost for ever to that of Rome.

_Acts of supremacy and uniformity._--These two statutes, commonly

denominated the acts of supremacy and uniformity, form the basis of that

restrictive code of laws, deemed by some one of the fundamental

bulwarks, by others the reproach of our constitution, which pressed so

heavily for more than two centuries upon the adherents to the Romish

church. By the former all beneficed ecclesiastics, and all laymen

holding office under the Crown, were obliged to take the oath of

supremacy, renouncing the spiritual as well as temporal jurisdiction of

every foreign prince or prelate, on pain of forfeiting their office or

benefice; and it was rendered highly penal, and for the third offence

treasonable, to maintain such supremacy by writing or advised

speaking.[160] The latter statute trenched more on the natural rights

of conscience; prohibiting, under pain of forfeiting goods and chattels

for the first offence, of a year's imprisonment for the second, and of

imprisonment during life for the third, the use by a minister, whether

beneficed or not, of any but the established liturgy; and imposed a fine

of one shilling on all who should absent themselves from church on

Sundays and holidays.[161]

_Restraint of Roman catholic worship in the first years of

Elizabeth._--This act operated as an absolute interdiction of the

catholic rites, however privately celebrated. It has frequently been

asserted that the government connived at the domestic exercise of that

religion during these first years of Elizabeth's reign. This may

possibly have been the case with respect to some persons of very high

rank whom it was inexpedient to irritate. But we find instances of

severity towards catholics, even in that early period; and it is evident

that their solemn rites were only performed by stealth, and at much

hazard. Thus Sir Edward Waldgrave and his lady were sent to the Tower in

1561, for hearing mass and having a priest in their house. Many others

about the same time were punished for the like offence.[162] Two

bishops, one of whom, I regret to say, was Grindal, write to the council

in 1562, concerning a priest apprehended in a lady's house, that neither

he nor the servants would be sworn to answer to articles, saying they

would not accuse themselves; and, after a wise remark on this, that

"papistry is like to end in anabaptistry," proceed to hint, that "some

think that if this priest might be put to some kind of torment, and so

driven to confess what he knoweth, he might gain the queen's majesty a

good mass of money by the masses that he hath said; but this we refer to

your lordship's wisdom."[163] This commencement of persecution induced

many catholics to fly beyond sea, and gave rise to those reunions of

disaffected exiles, which never ceased to endanger the throne of

Elizabeth.

It cannot, as far as appears, be truly alleged that any greater

provocation had as yet been given by the catholics, than that of

pertinaciously continuing to believe and worship as their fathers had

done before them. I request those who may hesitate about this, to pay

some attention to the order of time, before they form their opinions.

The master mover, that became afterwards so busy, had not yet put his

wires into action. Every prudent man at Rome (and we shall not at least

deny that there were such) condemned the precipitate and insolent

behaviour of Paul IV. towards Elizabeth, as they did most other parts of

his administration. Pius IV., the successor of that injudicious old man,

aware of the inestimable importance of reconciliation, and suspecting

probably that the queen's turn of thinking did not exclude all hope of

it, despatched a nuncio to England, with an invitation to send

ambassadors to the council at Trent, and with powers, as is said, to

confirm the English liturgy, and to permit double communion; one of the

few concessions which the more indulgent Romanists of that age were not

very reluctant to make.[164] But Elizabeth had taken her line as to the

court of Rome; the nuncio received a message at Brussels, that he must

not enter the kingdom; and she was too wise to countenance the impartial

fathers of Trent, whose labours had nearly drawn to a close, and whose

decisions on the controverted points it had never been very difficult to

foretell. I have not found that Pius IV., more moderate than most other

pontiffs of the sixteenth century, took any measures hostile to the

temporal government of this realm; but the deprived ecclesiastics were

not unfairly anxious to keep alive the faith of their former hearers,

and to prevent them from sliding into conformity, through indifference

and disuse of their ancient rites.[165] The means taken were chiefly the

same as had been adopted against themselves, the dispersion of small

papers either in a serious or lively strain; but, the remarkable

position in which the queen was placed rendering her death a most

important contingency, the popish party made use of pretended

conjurations and prophecies of that event, in order to unsettle the

people's minds, and dispose them to anticipate another re-action.[166]

Partly through these political circumstances, but far more from the hard

usage they experienced for professing their religion, there seems to

have been an increasing restlessness among the catholics about 1562,

which was met with new rigour by the parliament of that year.[167]

_Statute of 1562._--The act entitled, "for the assurance of the queen's

royal power over all estates and subjects within her dominions," enacts,

with an iniquitous and sanguinary retrospect, that all persons, who had

ever taken holy orders or any degree in the universities, or had been

admitted to the practice of the laws, or held any office in their

execution, should be bound to take the oath of supremacy, when tendered

to them by a bishop, or by commissioners appointed under the great seal.

The penalty for the first refusal of this oath was that of a praemunire;

but any person, who after the space of three months from the first

tender should again refuse it when in like manner tendered, incurred the

pains of high treason. The oath of supremacy was imposed by this statute

on every member of the House of Commons, but could not be tendered to a

peer; the queen declaring her full confidence in those hereditary

counsellors. Several peers of great weight and dignity were still

catholics.[168]

_Speech of Lord Montague against it._--This harsh statute did not pass

without opposition. Two speeches against it have been preserved; one by

Lord Montagu in the House of Lords, the other by Mr. Atkinson in the

Commons, breathing such generous abhorrence of persecution as some

erroneously imagine to have been unknown to that age, because we rarely

meet with it in theological writings. "This law," said Lord Montagu, "is

not necessary; forasmuch as the catholics of this realm disturb not, nor

hinder the public affairs of the realms, neither spiritual nor temporal.

They dispute not, they preach not, they disobey not the queen; they

cause no trouble nor tumults among the people; so that no man can say

that thereby the realm doth receive any hurt or damage by them. They

have brought into the realm no novelties in doctrine and religion. This

being true and evident, as it is indeed, there is no necessity why any

new law should be made against them. And where there is no sore nor

grief, medicines are superfluous, and also hurtful and dangerous. I do

entreat," he says afterwards, "whether it be just to make this penal

statute to force the subjects of this realm to receive and believe the

religion of protestants on pain of death. This I say to be a thing most

unjust; for that it is repugnant to the natural liberty of men's

understanding. For understanding may be persuaded, but not forced." And

further on: "It is an easy thing to understand that a thing so unjust,

and so contrary to all reason and liberty of man, cannot be put in

execution but with great incommodity and difficulty. For what man is

there so without courage and stomach, or void of all honour, that can

consent or agree to receive an opinion and new religion by force and

compulsion; or will swear that he thinketh the contrary to what he

thinketh? To be still, or dissemble, may be borne and suffered for a

time--to keep his reckoning with God alone; but to be compelled to lie

and to swear, or else to die therefore, are things that no man ought to

suffer and endure. And it is to be feared rather than to die they will

seek how to defend themselves; whereby should ensue the contrary of what

every good prince and well advised commonwealth ought to seek and

pretend, that is, to keep their kingdom and government in peace."[169]

_Statute of 1562 not fully enforced._--I am never very willing to admit

as an apology for unjust or cruel enactments, that they are not designed

to be generally executed; a pretext often insidious, always insecure,

and tending to mask the approaches of arbitrary government. But it is

certain that Elizabeth did not wish this act to be enforced in its full

severity. And Archbishop Parker, by far the most prudent churchman of

the time, judging some of the bishops too little moderate in their

dealings with the papists, warned them privately to use great caution in

tendering the oath of supremacy according to the act, and never to do so

the second time, on which the penalty of treason might attach, without

his previous approbation.[170] The temper of some of his colleagues was

more narrow and vindictive. Several of the deprived prelates had been

detained in a sort of honourable custody in the palaces of their

successors.[171] Bonner, the most justly obnoxious of them all, was

confined in the Marshalsea. Upon the occasion of this new statute, Horn,

Bishop of Winchester, indignant at the impunity of such a man, proceeded

to tender him the oath of supremacy, with an evident intention of

driving him to high treason. Bonner, however, instead of evading this

attack, intrepidly denied the other to be a lawful bishop; and, strange

as it may seem, not only escaped all farther molestation, but had the

pleasure of seeing his adversaries reduced to pass an act of parliament,

declaring the present bishops to have been legally consecrated.[172]

This statute, and especially its preamble, might lead a hasty reader to

suspect that the celebrated story of an irregular consecration of the

first protestant bishops at the Nag's-head tavern was not wholly

undeserving of credit. That tale, however, has been satisfactorily

refuted: the only irregularity which gave rise to this statute consisted

in the use of an ordinal, which had not been legally re-established.[173]

_Application of the emperor in behalf of the English catholics._--It was

not long after the act imposing such heavy penalties on catholic priests

for refusing the oath of supremacy, that the Emperor Ferdinand addressed

two letters to Elizabeth, interceding for the adherents to that

religion, both with respect to those new severities to which they might

become liable by conscientiously declining that oath, and to the

prohibition of the free exercise of their rites. He suggested that it

might be reasonable to allow them the use of one church in every city.

And he concluded with an expression, which might possibly be designed to

intimate that his own conduct towards the protestants in his dominions

would be influenced by her concurrence in his request.[174] Such

considerations were not without great importance. The protestant

religion was gaining ground in Austria, where a large proportion of the

nobility as well as citizens had for some years earnestly claimed its

public toleration. Ferdinand, prudent and averse from bigoted counsels,

and for every reason solicitous to heal the wounds which religious

differences had made in the empire, while he was endeavouring, not

absolutely without hope of success, to obtain some concessions from the

pope, had shown a disposition to grant further indulgences to his

protestant subjects. His son, Maximilian, not only through his moderate

temper, but some real inclination towards the new doctrines, bade fair

to carry much farther the liberal policy of the reigning emperor.[175]

It was consulting very little the general interests of protestantism, to

disgust persons so capable and so well disposed to befriend it. But our

queen, although free from the fanatical spirit of persecution which

actuated part of her subjects, was too deeply imbued with arbitrary

principles to endure any public deviation from the mode of worship she

should prescribe. And it must perhaps be admitted that experience alone

could fully demonstrate the safety of toleration, and show the fallacy

of apprehensions that unprejudiced men might have entertained. In her

answer to Ferdinand, the queen declares that she cannot grant churches

to those who disagree from her religion, being against the laws of her

parliament, and highly dangerous to the state of her kingdom; as it

would sow various opinions in the nation to distract the minds of honest

men, and would cherish parties and factions that might disturb the

present tranquillity of the commonwealth. Yet enough had already

occurred in France to lead observing men to suspect that severities and

restrictions are by no means an infallible specific to prevent or subdue

religious factions.

Camden and many others have asserted that by systematic connivance the

Roman catholics enjoyed a pretty free use of their religion for the

first fourteen years of Elizabeth's reign. But this is not reconcilable

to many passages in Strype's collections. We find abundance of persons

harassed for recusancy, that is, for not attending the protestant

church, and driven to insincere promises of conformity. Others were

dragged before ecclesiastical commissions for harbouring priests, or for

sending money to those who had fled beyond sea.[176] Students of the

inns of court, where popery had a strong hold at this time, were

examined in the star-chamber as to their religion, and on not giving

satisfactory answers were committed to the Fleet.[177] The catholic

party were not always scrupulous about the usual artifices of an

oppressed people, meeting force by fraud, and concealing their heartfelt

wishes under the mask of ready submission, or even of zealous

attachment. A great majority both of clergy and laity yielded to the

times; and of these temporising conformists it cannot be doubted that

many lost by degrees all thought of returning to their ancient fold. But

others, while they complied with exterior ceremonies, retained in their

private devotions their accustomed mode of worship. It is an admitted

fact, that the catholics generally attended the church, till it came to

be reckoned a distinctive sign of their having renounced their own

religion. They persuaded themselves (and the English priests,

uninstructed and accustomed to a temporising conduct, did not discourage

the notion) that the private observance of their own rites would excuse

a formal obedience to the civil power.[178] The Romish scheme of

worship, though it attaches more importance to ceremonial rites, has one

remarkable difference from the protestant, that it is far less social;

and consequently the prevention of its open exercise has far less

tendency to weaken men's religious associations, so long as their

individual intercourse with a priest, its essential requisite, can be

preserved. Priests therefore travelled the country in various disguises,

to keep alive a flame which the practice of outward conformity was

calculated to extinguish. There was not a county throughout England,

says a catholic historian, where several of Mary's clergy did not

reside, and were commonly called the old priests. They served as

chaplains in private families.[179] By stealth, at the dead of night, in

private chambers, in the secret lurking-places of an ill-peopled

country, with all the mystery that subdues the imagination, with all the

mutual trust that invigorates constancy, these proscribed ecclesiastics

celebrated their solemn rites, more impressive in such concealment than

if surrounded by all their former splendour. The strong predilection

indeed of mankind for mystery, which has probably led many to tamper in

political conspiracies without much further motive, will suffice to

preserve secret associations, even where their purposes are far less

interesting than those of religion. Many of these itinerant priests

assumed the character of protestant preachers; and it has been said,

with some truth, though not probably without exaggeration, that, under

the directions of their crafty court, they fomented the division then

springing up, and mingled with the anabaptists and other sectaries, in

the hope both of exciting dislike to the establishment, and of

instilling their own tenets, slightly disguised, into the minds of

unwary enthusiasts.[180]

_Persecution of the catholics in the ensuing period._--It is my thorough

conviction that the persecution, for it can obtain no better name,[181]

carried on against the English catholics, however it might serve to

delude the government by producing an apparent conformity, could not but

excite a spirit of disloyalty in many adherents of that faith. Nor would

it be safe to assert that a more conciliating policy would have

altogether disarmed their hostility, much less laid at rest those busy

hopes of the future, which the peculiar circumstances of Elizabeth's

reign had a tendency to produce. This remarkable posture of affairs

affected all her civil, and still more her ecclesiastical policy. Her

own title to the crown depended absolutely on a parliamentary

recognition. The act of 35 H. 8, c. 1 had settled the crown upon her,

and thus far restrained the previous statute, 28 H. 8, c. 7, which had

empowered her father to regulate the succession at his pleasure. Besides

this legislative authority, his testament had bequeathed the kingdom to

Elizabeth after her sister Mary; and the common consent of the nation

had ratified her possession. But the Queen of Scots, niece of Henry by

Margaret, his elder sister, had a prior right to the throne during

Elizabeth's reign, in the eyes of such catholics as preferred an

hereditary to a parliamentary title, and was reckoned by the far greater

part of the nation its presumptive heir after her decease. There could

indeed be no question of this, had the succession been left to its

natural course. But Henry had exercised the power with which his

parliament, in too servile a spirit, yet in the plenitude of its

sovereign authority, had invested him, by settling the succession in

remainder upon the house of Suffolk, descendants of his second sister

Mary, to whom he postponed the elder line of Scotland. Mary left two

daughters, Frances and Eleanor. The former became wife of Grey, Marquis

of Dorset, created Duke of Suffolk by Edward; and had three

daughters--Jane, whose fate is well known, Catherine, and Mary. Eleanor

Brandon, by her union with the Earl of Cumberland, had a daughter, who

married the Earl of Derby. At the beginning of Elizabeth's reign, or

rather after the death of the Duchess of Suffolk, Lady Catherine Grey

was by statute law the presumptive heiress of the crown; but according

to the rules of hereditary descent, which the bulk of mankind do not

readily permit an arbitrary and capricious enactment to disturb, Mary

Queen of Scots, granddaughter of Margaret, was the indisputable

representative of her royal progenitors, and the next in succession to

Elizabeth.

_Elizabeth's unwillingness to decide the succession, or to marry._--This

reversion, indeed, after a youthful princess, might well appear rather

an improbable contingency. It was to be expected that a fertile marriage

would defeat all speculations about her inheritance; nor had Elizabeth

been many weeks on the throne, before this began to occupy her subjects'

minds.[182] Among several who were named, two very soon became the

prominent candidates for her favour, the Archduke Charles, son of the

Emperor Ferdinand, and Lord Robert Dudley, sometime after created Earl

of Leicester; one recommended by his dignity and alliances, the other by

her own evident partiality. She gave at the outset so little

encouragement to the former proposal, that Leicester's ambition did not

appear extravagant.[183] But her ablest counsellors who knew his vices,

and her greatest peers who thought his nobility recent and ill acquired,

deprecated so unworthy a connection.[184] Few will pretend to explore

the labyrinths of Elizabeth's heart; yet we may almost conclude that her

passion for this favourite kept up a struggle against her wisdom for the

first seven or eight years of her reign. Meantime she still continued

unmarried; and those expressions she had so early used, of her

resolution to live and die a virgin, began to appear less like coy

affectation than at first. Never had a sovereign's marriage been more

desirable for a kingdom. Cecil, aware how important it was that the

queen should marry, but dreading her union with Leicester, contrived,

about the end of 1564, to renew the treaty with the Archduke

Charles.[185] During this negotiation, which lasted from two to three

years, she showed not a little of that evasive and dissembling coquetry

which was to be more fully displayed on subsequent occasions.[186]

Leicester deemed himself so much interested as to quarrel with those who

manifested any zeal for the Austrian marriage; but his mistress

gradually overcame her misplaced inclinations; and from the time when

that connection was broken off, his prospects of becoming her husband

seem rapidly to have vanished away. The pretext made for relinquishing

this treaty with the archduke was Elizabeth's constant refusal to

tolerate the exercise of his religion; a difficulty which, whether real

or ostensible, recurred in all her subsequent negotiations of a similar

nature.[187]

In every parliament of Elizabeth the House of Commons was zealously

attached to the protestant interest. This, as well as an apprehension of

disturbance from a contested succession, led to those importunate

solicitations that she would choose a husband, which she so artfully

evaded. A determination so contrary to her apparent interest, and to the

earnest desire of her people, may give some countenance to the surmises

of the time, that she was restrained from marriage by a secret

consciousness that it was unlikely to be fruitful.[188] Whether these

conjectures were well founded, of which I know no evidence, or whether

the risk of experiencing that ingratitude which the husbands of

sovereign princesses have often displayed, and of which one glaring

example was immediately before her eyes, outweighed in her judgment that

of remaining single, or whether she might not even apprehend a more

desperate combination of the catholic party at home and abroad, if the

birth of any issue from her should shut out their hopes of Mary's

succession, it is difficult for us to decide.

Though the queen's marriage were the primary object of these addresses,

as the most probable means of securing an undisputed heir to the crown,

yet she might have satisfied the parliament in some degree by limiting

the succession to one certain line. But it seems doubtful whether this

would have answered the proposed end. If she had taken a firm resolution

against matrimony, which, unless on the supposition already hinted,

could hardly be reconciled with a sincere regard for her people's

welfare, it might be less dangerous to leave the course of events to

regulate her inheritance. Though all parties seem to have conspired in

pressing her to some decisive settlement on this subject, it would not

have been easy to content the two factions, who looked for a successor

to very different quarters.[189] It is evident that any confirmation of

the Suffolk title would have been regarded by the Queen of Scots and her

numerous partisans as a flagrant injustice, to which they would not

submit but by compulsion: and on the other hand, by re-establishing the

hereditary line, Elizabeth would have lost her check on one whom she had

reason to consider as a rival and competitor, and whose influence was

already alarmingly extensive among her subjects.

_Imprisonment of Lady Catherine Grey._--She had, however, in one of the

first years of her reign, without any better motive than her own jealous

and malignant humour, taken a step not only harsh and arbitrary, but

very little consonant to policy, which had almost put it out of her

power to defeat the Queen of Scots' succession. Lady Catherine Grey, who

has been already mentioned as next in remainder of the house of Suffolk,

proved with child by a private marriage, as they both alleged, with the

Earl of Hertford. The queen, always envious of the happiness of lovers,

and jealous of all who could entertain any hopes of the succession,

threw them both into the Tower. By connivance of their keepers, the lady

bore a second child during this imprisonment. Upon this Elizabeth caused

an enquiry to be instituted before a commission of privy counsellors and

civilians; wherein, the parties being unable to adduce proof of their

marriage, Archbishop Parker pronounced that their cohabitation was

illegal, and that they should be censured for fornication. He was to be

pitied if the law obliged him to utter so harsh a sentence, or to be

blamed if it did not. Even had the marriage never been solemnised, it

was impossible to doubt the existence of a contract, which both were

still desirous to perform. But there is reason to believe that there had

been an actual marriage, though so hasty and clandestine that they had

not taken precautions to secure evidence of it. The injured lady sunk

under this hardship and indignity;[190] but the legitimacy of her

children was acknowledged by general consent, and, in a distant age, by

a legislative declaration. These proceedings excited much

dissatisfaction; generous minds revolted from their severity, and many

lamented to see the reformed branch of the royal stock thus bruised by

the queen's unkind and impolitic jealousy.[191] Hales, clerk of the

hanaper, a zealous protestant, having written in favour of Lady

Catherine's marriage, and of her title to the succession, was sent to

the Tower.[192] The lord keeper Bacon himself, a known friend to the

house of Suffolk, being suspected of having prompted Hales to write this

treatise, lost much of his mistress's favour. Even Cecil, though he had

taken a share in prosecuting Lady Catherine, perhaps in some degree from

an apprehension that the queen might remember he had once joined in

proclaiming her sister Jane, did not always escape the same

suspicion;[193] and it is probable that he felt the imprudence of

entirely discountenancing a party from which the queen and religion had

nothing to dread. There is reason to believe that the house of Suffolk

was favoured in parliament; the address of the Commons in 1563,

imploring the queen to settle the succession, contains several

indications of a spirit unfriendly to the Scottish line;[194] and a

speech is extant, said to have been made as late as 1571, expressly

vindicating the rival pretension.[195] If indeed we consider with

attention the statute of 13 Eliz. c. 1, which renders it treasonable to

deny that the sovereigns of this kingdom, with consent of parliament,

might alter the line of succession, it will appear little short of a

confirmation of that title, which the descendants of Mary Brandon

derived from a parliamentary settlement. But the doubtful birth of Lord

Beauchamp and his brother, with an ignoble marriage, which Frances, the

younger sister of Lady Catherine Grey, had thought it prudent to

contract, deprived this party of all political consequence much sooner,

as I conceive, than the wisest of Elizabeth's advisers could have

desired; and gave rise to various other pretensions, which failed not to

occupy speculative or intriguing tempers throughout this reign.

_Mary, Queen of Scotland._--We may well avoid the tedious and intricate

paths of Scottish history, where each fact must be sustained by a

controversial discussion. Every one will recollect, that Mary Stuart's

retention of the arms and style of England gave the first, and, as it

proved, inexpiable provocation to Elizabeth. It is indeed true, that she

was queen consort of France, a state lately at war with England, and

that if the sovereigns of the latter country, even in peace, would

persist in claiming the French throne, they could hardly complain of

this retaliation. But, although it might be difficult to find a

diplomatic answer to this, yet every one was sensible of an important

difference between a title retained through vanity, and expressive of

pretensions long since abandoned, from one that several foreign powers

were prepared to recognise, and a great part of the nation might perhaps

only want opportunity to support.[196] If, however, after the death of

Francis II. had set the Queen of Scots free from all adverse

connections, she had with more readiness and apparent sincerity

renounced a pretension which could not be made compatible with

Elizabeth's friendship, she might perhaps have escaped some of the

consequences of that powerful neighbour's jealousy. But, whether it were

that female weakness restrained her from unequivocally abandoning claims

which she deemed well founded, and which future events might enable her

to realise even in Elizabeth's lifetime, or whether she fancied that to

drop the arms of England from her scutcheon would look like a

dereliction of her right of succession, no satisfaction was fairly given

on this point to the English court. Elizabeth took a far more effective

revenge, by intriguing with all the malecontents of Scotland. But while

she was endeavouring to render Mary's throne uncomfortable and

insecure, she did not employ that influence against her in England,

which lay more fairly in her power. She certainly was not unfavourable

to the Queen of Scots' succession, however she might decline compliance

with importunate and injudicious solicitations to declare it. She threw

both Hales and one Thornton into prison for writing against that title.

And when Mary's secretary, Lethington, urged that Henry's testament,

which alone stood in their way, should be examined, alleging that it had

not been signed by the king, she paid no attention to this imprudent

request.[197]

The circumstances wherein Mary found herself placed on her arrival in

Scotland were sufficiently embarrassing to divert her attention from any

regular scheme against Elizabeth, though she may sometimes have indulged

visionary hopes; nor it is probable that with the most circumspect

management she could so far have mitigated the rancour of some or

checked the ambition of others, as to find leisure for hostile

intrigues. But her imprudent marriage with Darnley, and the far greater

errors of her subsequent behaviour, by lowering both her resources and

reputation as far as possible, seemed to be pledges of perfect security

from that quarter. Yet it was precisely when Mary was become most feeble

and helpless, that Elizabeth's apprehensions grew most serious and well

founded.

At the time when Mary, escaped from captivity, threw herself on the

protection of a related, though rival queen, three courses lay open to

Elizabeth, and were discussed in her councils. To restore her by force

of arms, or rather by a mediation which would certainly have been

effectual, to the throne which she had compulsorily abdicated, was the

most generous, and would probably have turned out the most judicious

proceeding. Reigning thus with tarnished honour and diminished power,

she must have continually depended on the support of England, and become

little better than a vassal of its sovereign. Still it might be objected

by many, that the queen's honour was concerned not to maintain too

decidedly the cause of one accused by common fame, and even by evidence

that had already been made public, of adultery and the assassination of

her husband. To have permitted her retreat into France would have shown

an impartial neutrality; and probably that court was too much occupied

at home to have afforded her any material assistance. Yet this appeared

rather dangerous; and policy was supposed, as frequently happens, to

indicate a measure absolutely repugnant to justice, that of detaining

her in perpetual custody.[198] Whether this policy had no other fault

than its want of justice, may reasonably be called in question.

_Combination in favour of Mary._--The queen's determination neither to

marry nor limit the succession had inevitably turned every one's

thoughts towards the contingency of her death. She was young indeed; but

had been dangerously ill, once in 1562,[199] and again in 1568. Of all

possible competitors for the throne, Mary was incomparably the most

powerful, both among the nobility and the people. Besides the undivided

attachment of all who retained any longings for the ancient religion,

and many such were to be found at Elizabeth's court and chapel, she had

the stronghold of hereditary right, and the general sentiment that

revolts from acknowledging the omnipotency of a servile parliament.

Cecil, whom no one could suspect of partiality towards her, admits in a

remarkable minute on the state of the kingdom, in 1569, that "the Queen

of Scots' strength standeth by the universal opinion of the world for

the justice of her title, as coming of the ancient line."[200] This was

no doubt in some degree counteracted by a sense of the danger which her

accession would occasion to the protestant church, and which, far more

than its parliamentary title, kept up a sort of party for the house of

Suffolk. The crimes imputed to her did not immediately gain credit among

the people; and some of higher rank were too experienced politicians to

turn aside for such considerations. She had always preserved her

connections among the English nobility, of whom many were catholics,

and others adverse to Cecil, by whose counsels the queen had been

principally directed in all her conduct with regard to Scotland and its

sovereign.[201] After the unfinished process of enquiry to which Mary

submitted at York and Hampton Court, when the charge of participation in

Darnley's murder had been substantiated by evidence at least that she

did not disprove, and the whole course of which proceedings created a

very unfavourable impression both in England and on the continent, no

time was to be lost by those who considered her as the object of their

dearest hopes. She was in the kingdom; she might, by a bold rescue, be

placed at their head; every hour's delay increased the danger of her

being delivered up to the rebel Scots; and doubtless some eager

protestants had already begun to demand her exclusion by an absolute

decision of the legislature.

Elizabeth must have laid her account, if not with the disaffection of

the catholic party, yet at least with their attachment to the Queen of

Scots. But the extensive combination that appeared, in 1569, to bring

about by force the Duke of Norfolk's marriage with that princess, might

well startle her cabinet. In this combination Westmoreland and

Northumberland, avowed catholics, Pembroke and Arundel, suspected ones,

were mingled with Sussex and even Leicester, unquestioned protestants.

The Duke of Norfolk himself, greater and richer than any English

subject, had gone such lengths in this conspiracy that his life became

the just forfeit of his guilt and folly. It is almost impossible to pity

this unhappy man, who lured by the most criminal ambition, after

proclaiming the Queen of Scots a notorious adulteress and murderer,

would have compassed a union with her at the hazard of his sovereign's

crown, of the tranquillity and even independence of his country, and of

the reformed religion.[202] There is abundant proof of his intrigues

with the Duke of Alva, who had engaged to invade the kingdom. His trial

was not indeed conducted in a manner that we can approve (such was the

nature of state proceedings in that age), nor can it, I think, be denied

that it formed a precedent of constructive treason not easily

reconcilable with the statute; but much evidence is extant that his

prosecutors did not adduce; and no one fell by a sentence more amply

merited, or the execution of which was more indispensable.[203]

_Bull of Pius V._--Norfolk was the dupe throughout all this intrigue of

more artful men; first of Murray and Lethington, who had filled his mind

with ambitious hopes, and afterwards of Italian agents employed by Pius

V. to procure a combination of the catholic party. Collateral to

Norfolk's conspiracy, but doubtless connected with it, was that of the

northern Earls of Northumberland and Westmoreland, long prepared, and

perfectly foreseen by the government, of which the ostensible and

manifest aim was the re-establishment of popery.[204] Pius V., who took

a far more active part than his predecessor in English affairs, and had

secretly instigated this insurrection, now published his celebrated

bull, excommunicating and deposing Elizabeth, in order to second the

efforts of her rebellious subjects.[205] This is, perhaps, with the

exception of that issued by Sixtus V. against Mary IV. of France, the

latest blast of that trumpet, which had thrilled the hearts of monarchs.

Yet there was nothing in the sound that bespoke declining vigour; even

the illegitimacy of Elizabeth's birth is scarcely alluded to; and the

pope seems to have chosen rather to tread the path of his predecessors,

and absolve her subjects from their allegiance, as the just and

necessary punishment of her heresy.

Since nothing so much strengthens any government as an unsuccessful

endeavour to subvert it, it may be thought that the complete failure of

the rebellion under the Earls of Northumberland and Westmoreland, with

the detection and punishment of the Duke of Norfolk, rendered

Elizabeth's throne more secure. But those events revealed the number of

her enemies, or at least of those in whom no confidence could be

reposed. The rebellion, though provided against by the ministry, and

headed by two peers of great family but no personal weight, had not only

assumed for a time a most formidable aspect in the north, but caused

many to waver in other parts of the kingdom.[206] Even in Norfolk, an

eminently protestant county, there was a slight insurrection in 1570,

out of attachment to the duke.[207] If her greatest subject could thus

be led astray from his faith and loyalty, if others not less near to her

councils could unite with him in measures so contrary to her wishes and

interests, on whom was she firmly to rely? Who, especially, could be

trusted, were she to be snatched away from the world, for the

maintenance of the protestant establishment under a yet unknown

successor? This was the manifest and principal danger that her

counsellors had to dread. Her own great reputation, and the respectful

attachment of her people, might give reason to hope that no machinations

would be successful against her crown; but let us reflect in what

situation the kingdom would have been left by her death in a sudden

illness, such as she had more than once experienced in earlier years,

and again in 1571. "You must think," Lord Burleigh writes to Walsingham,

on that occasion, "such a matter would drive me to the end of my wits."

And Sir Thomas Smith expresses his fears in equally strong

language.[208] Such statesmen do not entertain apprehensions lightly.

Whom, in truth, could her privy council, on such an event, have resolved

to proclaim? The house of Suffolk, had its right been more generally

recognised than it was (Lady Catherine being now dead), presented no

undoubted heir. The young King of Scotland, an alien and an infant,

could only have reigned through a regency; and it might have been

difficult to have selected from the English nobility a fit person to

undertake that office, or at least one in whose elevation the rest

would have acquiesced. It appears most probable that the numerous and

powerful faction who had promoted Norfolk's union with Mary would have

contrived again to remove her from her prison to the throne. Of such a

revolution the disgrace of Cecil and of Elizabeth's wisest ministers

must have been the immediate consequence; and it is probable that the

restoration of the catholic worship would have ensued. These

apprehensions prompted Cecil, Walsingham, and Smith to press the queen's

marriage with the Duke of Anjou far more earnestly than would otherwise

have appeared consistent with her interests. A union with any member of

that perfidious court was repugnant to genuine protestant sentiments.

But the queen's absolute want of foreign alliances, and the secret

hostility both of France and Spain, impressed Cecil with that deep sense

of the perils of the time which his private letters so strongly bespeak.

A treaty was believed to have been concluded in 1567, to which the two

last-mentioned powers, with the Emperor Maximilian and some other

catholic princes, were parties, for the extirpation of the protestant

religion.[209] No alliance that the court of Charles IX. could have

formed with Elizabeth was likely to have diverted it from pursuing this

object; and it may have been fortunate that her own insincerity saved

her from being the dupe of those who practised it so well. Walsingham

himself, sagacious as he was, fell into the snares of that den of

treachery, giving credit to the young king's assurances almost on the

very eve of St. Bartholomew.[210]

_Statutes for the queen's security._--The bull of Pius V., far more

injurious in its consequences to those it was designed to serve than to

Elizabeth, forms a leading epoch in the history of our English

catholics. It rested upon a principle never universally acknowledged,

and regarded with much jealousy by temporal governments, yet maintained

in all countries by many whose zeal and ability rendered them

formidable--the right vested in the supreme pontiff to depose kings for

heinous crimes against the church. One Felton affixed this bull to the

gates of the Bishop of London's palace, and suffered death for the

offence. So audacious a manifestation of disloyalty was imputed with

little justice to the catholics at large, but might more reasonably lie

at the door of those active instruments of Rome, the English refugee

priests and jesuits dispersed over Flanders and lately established at

Douay, who were continually passing into the kingdom, not only to keep

alive the precarious faith of the laity, but, as was generally surmised,

to excite them against their sovereign.[211] This produced the act of 13

Eliz. c. 2; which, after reciting these mischiefs, enacts that all

persons publishing any bull from Rome, or absolving and reconciling any

one to the Romish church, or being so reconciled, should incur the

penalties of high treason; and such as brought into the realm any

crosses, pictures, or superstitious things consecrated by the pope or

under his authority, should be liable to a premunire. Those who should

conceal or connive at the offenders were to be held guilty of misprision

of treason. This statute exposed the catholic priesthood, and in great

measure the laity, to the continual risk of martyrdom; for so many had

fallen away from their faith through a pliant spirit of conformity with

the times, that the regular discipline would exact their absolution and

reconciliation before they could be reinstated in the church's

communion. Another act of the same session, manifestly levelled against

the partisans of Mary, and even against herself, makes it high treason

to affirm that the queen ought not to enjoy the crown, but some other

person; or to publish that she is a heretic, schismatic, tyrant,

infidel, or usurper of the crown; or to claim right to the crown, or to

usurp the same during the queen's life; or to affirm that the laws and

statutes do not bind the right of the crown, and the descent,

limitation, inheritance, or governance thereof. And whosoever should

during the queen's life, by any book or work written or printed,

expressly affirm, before the same had been established by parliament,

that any one particular person was or ought to be heir and successor to

the queen, except the same be the natural issue of her body, or should

print or utter any such book or writing, was for the first offence to be

imprisoned a year, and to forfeit half his goods; and for the second to

incur the penalties of a premunire.[212]

It is impossible to misunderstand the chief aim of this statute. But the

House of Commons, in which the zealous protestants, or, as they were now

rather denominated, puritans, had a predominant influence, were not

content with these demonstrations against the unfortunate captive. Fear,

as often happens, excited a sanguinary spirit amongst them; they

addressed the queen upon what they called the great cause, that is, the

business of the Queen of Scots, presenting by their committee reasons

gathered out of the civil law to prove that "it standeth not only with

justice, but also with the queen's majesty's honour and safety, to

proceed criminally against the pretended Scottish queen."[213]

Elizabeth, who could not really dislike these symptoms of hatred towards

her rival, took the opportunity of simulating more humanity than the

Commons; and when they sent a bill to the upper house attainting Mary of

treason, checked its course by proroguing the parliament. Her

backwardness to concur in any measures for securing the kingdom, as far

as in her lay, from those calamities which her decease might occasion,

could not but displease Lord Burleigh. "All that we laboured for," he

writes to Walsingham in 1572, "and had with full consent brought to

fashion, I mean a law to make the Scottish queen unable and unworthy of

succession to the crown, was by her majesty neither assented to nor

rejected, but deferred." Some of those about her, he hints, made herself

her own enemy by persuading her not to countenance these proceedings in

parliament.[214] I do not think it admits of much question that, at this

juncture, the civil and religious institutions of England would have

been rendered more secure by Mary's exclusion from a throne, which

indeed, after all that had occurred, she could not be endured to fill

without national dishonour. But the violent measures suggested against

her life were hardly, under all the circumstances of her case, to be

reconciled with justice; even admitting her privity to the northern

rebellion and to the projected invasion by the Duke of Alva. These

however were not approved merely by an eager party in the Commons:

Archbishop Parker does not scruple to write about her to Cecil--"If that

only [one] desperate person were taken away, as by justice soon it might

be, the queen's majesty's good subjects would be in better hope, and the

papists' daily expectation vanquished."[215] And Walsingham, during his

embassy at Paris, desires that "the queen should see how much they (the

papists) built upon the possibility of that dangerous woman's coming to

the crown of England, whose life was a step to her majesty's death;"

adding that "she was bound for her own safety and that of her subjects,

to add to God's providence her own policy, so far as might stand with

justice."[216]

_Catholics more rigorously treated._--We cannot wonder to read that

these new statutes increased the dissatisfaction of the Roman catholics,

who perceived a systematic determination to extirpate their religion.

Governments ought always to remember that the intimidation of a few

disaffected persons is dearly bought by alienating any large portion of

the community.[217] Many retired to foreign countries, and receiving for

their maintenance pensions from the court of Spain, became unhappy

instruments of its ambitious enterprises. Those who remained at home

could hardly think their oppression much mitigated by the precarious

indulgences which Elizabeth's caprice, or rather the fluctuation of

different parties in her councils, sometimes extended to them. The queen

indeed, so far as we can penetrate her dissimulation, seems to have been

really averse to extreme rigour against her catholic subjects: and her

greatest minister, as we shall more fully see afterwards, was at this

time in the same sentiments. But such of her advisers as leaned towards

the puritan faction, and too many of the Anglican clergy, whether

puritan or not, thought no measure of charity or compassion should be

extended to them. With the divines they were idolaters; with the council

they were a dangerous and disaffected party; with the judges they were

refractory transgressors of statutes; on every side they were obnoxious

and oppressed. A few aged men having been set at liberty, Sampson, the

famous puritan, himself a sufferer for conscience sake, wrote a letter

of remonstrance to Lord Burleigh. He urged in this that they should be

compelled to hear sermons, though he would not at first oblige them to

communicate.[218] A bill having been introduced in the session of 1571

imposing a penalty for not receiving the communion, it was objected that

consciences ought not to be forced. But Mr. Strickland entirely denied

this principle, and quoted authorities against it.[219] Even Parker, by

no means tainted with puritan bigotry, and who had been reckoned

moderate in his proceedings towards catholics, complained of what he

called "a Machiavel government;" that is, of the queen's lenity in not

absolutely rooting them out.[220]

This indulgence, however, shown by Elizabeth, the topic of reproach in

those times, and sometimes of boast in our own, never extended to any

positive toleration, nor even to any general connivance at the Romish

worship in its most private exercise. She published a declaration in

1570, that she did not intend to sift men's consciences, provided they

observed her laws by coming to church; which, as she well knew, the

greater part deemed inconsistent with their integrity.[221] Nor did the

government always abstain from an inquisition into men's private

thoughts. The inns of court were more than once purified of popery by

examining their members on articles of faith. Gentlemen of good families

in the country were harassed in the same manner.[222] One Sir Richard

Shelley, who had long acted as a sort of spy for Cecil on the continent,

and given much useful information, requested only leave to enjoy his

religion without hindrance; but the queen did not accede to this without

much reluctance and delay.[223] She had indeed assigned no other

ostensible pretext for breaking off her own treaty of marriage with the

Archduke Charles, and subsequently with the Dukes of Anjou and Alencon,

than her determination not to suffer the mass to be celebrated even in

her husband's private chapel. It is worthy to be repeatedly inculcated

on the reader, since so false a colour has been often employed to

disguise the ecclesiastical tyranny of this reign, that the most

clandestine exercise of the Romish worship was severely punished. Thus

we read in the life of Whitgift, that on information given that some

ladies and others heard mass in the house of one Edwards by night, in

the county of Denbigh, he being then Bishop of Worcester and

Vice-President of Wales, was directed to make inquiry into the facts;

and finally was instructed to commit Edwards to close prison, and as for

another person implicated, named Morice, "if he remained obstinate, he

might cause some kind of torture to be used upon him, and the like order

they prayed him to use with the others."[224] But this is one of many

instances, the events of every day, forgotten on the morrow, and of

which no general historian takes account. Nothing but the minute and

patient diligence of such a compiler as Strype, who thinks no fact below

his regard, could have preserved them from oblivion.[225]

It will not surprise those who have observed the effect of all

persecution for matters of opinion upon the human mind, that during this

period the Romish party continued such in numbers and in zeal as to give

the most lively alarm to Elizabeth's administration. One cause of this

was beyond doubt the connivance of justices of the peace, a great many

of whom were secretly attached to the same interest, though it was not

easy to exclude them from the commission, on account of their wealth and

respectability.[226] The facility with which catholic rites can be

performed in secret, as before observed, was a still more important

circumstance. Nor did the voluntary exiles established in Flanders remit

their diligence in filling the kingdom with emissaries. The object of

many at least among them, it cannot for a moment be doubted, from the

aera of the bull of Pius V., if not earlier, was nothing less than to

subvert the queen's throne. They were closely united with the court of

Spain, which had passed from the character of an ally and pretended

friend, to that of a cold and jealous neighbour, and at length of an

implacable adversary. Though no war had been declared between Elizabeth

and Philip, neither party had scrupled to enter into leagues with the

disaffected subjects of the other. Such sworn vassals of Rome and Spain

as an Allen or a Persons, were just objects of the English government's

distrust: it is the extension of that jealousy to the peaceful and loyal

which we stigmatise as oppressive, and even as impolitic.[227]

_Fresh laws against the catholic worship._--In concert with the

directing powers of the Vatican and Escurial, the refugees redoubled

their exertions about the year 1580. Mary was now wearing out her years

in hopeless captivity; her son, though they did not lose hope of him,

had received a strictly protestant education; while a new generation had

grown up in England, rather inclined to diverge more widely from the

ancient religion than to suffer its restoration. Such were they who

formed the House of Commons that met in 1581, discontented with the

severities used against the puritans, but ready to go beyond any

measures that the court might propose to subdue and extirpate popery.

Here an act was passed, which, after repeating the former provisions

that had made it high treason to reconcile any of her majesty's

subjects, or to be reconciled to the church of Rome, imposes a penalty

of L20 a month on all persons absenting themselves from church, unless

they shall hear the English service at home: such as could not pay the

same within three months after judgment were to be imprisoned until they

should conform. The queen, by a subsequent act, had the power of seizing

two-thirds of the party's land, and all his goods, for default of

payment.[228] These grievous penalties on recusancy, as the wilful

absence of catholics from church came now to be denominated, were

doubtless founded on the extreme difficulty of proving an actual

celebration of their own rites. But they established a persecution which

fell not at all short in principle of that for which the inquisition had

become so odious. Nor were the statutes merely designed for terror's

sake, to keep a check over the disaffected, as some would pretend. They

were executed in the most sweeping and indiscriminating manner, unless

perhaps a few families of high rank might enjoy a connivance.[229]

_Execution of Campian and others._--It had certainly been the desire of

Elizabeth to abstain from capital punishments on the score of religion.

The first instance of a priest suffering death by her statutes was in

1577, when one Mayne was hanged at Launceston, without any charge

against him except his religion, and a gentleman who had harboured him

was sentenced to imprisonment for life.[230] In the next year, if we may

trust the zealous catholic writers, Thomas Sherwood, a boy of fourteen

years, was executed for refusing to deny the temporal power of the pope,

when urged by his judges.[231] But in 1581 several seminary priests from

Flanders having been arrested, whose projects were supposed (perhaps not

wholly without foundation) to be very inconsistent with their

allegiance, it was unhappily deemed necessary to hold out some more

conspicuous examples of rigour. Of those brought to trial the most

eminent was Campian, formerly a protestant, but long known as the boast

of Douay for his learning and virtues.[232] This man, so justly

respected, was put to the rack, and revealed through torture the names

of some catholic gentlemen with whom he had conversed.[233] He appears

to have been indicted along with several other priests, not on the

recent statutes, but on that of 25 Edw. III. for compassing and

imagining the queen's death. Nothing that I have read affords the

slightest proof of Campian's concern in treasonable practices, though

his connections, and profession as a jesuit, render it by no means

unlikely. If we may confide in the published trial, the prosecution was

as unfairly conducted, and supported by as slender evidence, as any

perhaps which can be found in our books.[234] But as this account,

wherein Campian's language is full of a dignified eloquence, rather

seems to have been compiled by a partial hand, its faithfulness may not

be above suspicion. For the same reason I hesitate to admit his alleged

declarations at the place of execution, where, as well as at his trial,

he is represented to have expressly acknowledged Elizabeth, and to have

prayed for her as his queen _de facto_ and _de jure_. For this was one

of the questions propounded to him before his trial, which he refused to

answer, in such a manner as betrayed his way of thinking. Most of those

interrogated at the same time, on being pressed whether the queen was

their lawful sovereign whom they were bound to obey, notwithstanding any

sentence of deprivation that the pope might pronounce, endeavoured, like

Campian, to evade the snare. A few, who unequivocally disclaimed the

deposing power of the Roman see, were pardoned.[235] It is more

honourable to Campian's memory that we should reject these pretended

declarations, than imagine him to have made them at the expense of his

consistency and integrity. For the pope's right to deprive kings of

their crowns was in that age the common creed of the jesuits, to whose

order Campian belonged; and the continent was full of writings published

by the English exiles, by Sanders, Bristow, Persons, and Allen, against

Elizabeth's unlawful usurpation of the throne. But many availed

themselves of what was called an explanation of the bull of Pius V.,

given by his successor Gregory XIII.; namely, that the bull should be

considered as always in force against Elizabeth and the heretics, but

should only be binding on catholics when due execution of it could be

had.[236] This was designed to satisfy the consciences of some papists

in submitting to her government, and taking the oath of allegiance. But

in thus granting a permission to dissemble, in hope of better

opportunity for revolt, this interpretation was not likely to

tranquillise her council, or conciliate them towards the Romish party.

The distinction, however, between a king by possession and one by right,

was neither heard for the first, nor for the last time, in the reign of

Elizabeth. It is the lot of every government that is not founded on the

popular opinion of legitimacy, to receive only a precarious allegiance.

Subject to this reservation, which was pretty generally known, it does

not appear that the priests or other Roman catholics, examined at

various times during this reign, are more chargeable with insincerity or

dissimulation than accused persons generally are.

The public executions, numerous as they were, scarcely form the most

odious part of this persecution. The common law of England has always

abhorred the accursed mysteries of a prison-house; and neither admits of

torture to extort confession, nor of any penal infliction not warranted

by a judicial sentence. But this law, though still sacred in the courts

of justice, was set aside by the privy council under the Tudor line. The

rack seldom stood idle in the Tower for all the latter part of

Elizabeth's reign.[237] To those who remember the annals of their

country, that dark and gloomy pile affords associations not quite so

numerous and recent as the Bastile, yet enough to excite our hatred and

horror. But standing as it does in such striking contrast to the fresh

and flourishing constructions of modern wealth, the proofs and the

rewards of civil and religious liberty, it seems like a captive tyrant,

reserved to grace the triumph of a victorious republic, and should teach

us to reflect in thankfulness, how highly we have been elevated in

virtue and happiness above our forefathers.

Such excessive severities under the pretext of treason, but sustained by

very little evidence of any other offence than the exercise of the

catholic ministry, excited indignation throughout a great part of

Europe. The queen was held forth in pamphlets, dispersed everywhere from

Rome and Douay, not only as a usurper and heretic, but a tyrant more

ferocious than any heathen persecutor, for inadequate parallels to whom

they ransacked all former history.[238] These exaggerations, coming

from the very precincts of the inquisition, required the unblushing

forehead of bigotry; but the charge of cruelty stood on too many facts

to be passed over, and it was thought expedient to repel it by two

remarkable pamphlets, both ascribed to the pen of Lord Burleigh.

_Defence of the queen, by Burleigh._--One of these, entitled "The

Execution of Justice in England for Maintenance of public and private

Peace," appears to have been published in 1583. It contains an elaborate

justification of the late prosecutions for treason, as no way connected

with religious tenets, but grounded on the ancient laws for protection

of the queen's person and government from conspiracy. It is alleged that

a vast number of catholics, whether of the laity or priesthood, among

whom the deprived bishops are particularly enumerated, had lived

unmolested on the score of their faith, because they paid due temporal

allegiance to their sovereign. Nor were any indicted for treason, but

such as obstinately maintained the pope's bull depriving the queen of

her crown. And even of these offenders, as many as after condemnation

would renounce their traitorous principles, had been permitted to live;

such was her majesty's unwillingness, it is asserted, to have any blood

spilled without this just and urgent cause proceeding from themselves.

But that any matter of opinion, not proved to have ripened into an overt

act, and extorted only, or rather conjectured, through a compulsive

inquiry, could sustain in law or justice a conviction for high treason,

is what the author of this pamphlet has not rendered manifest.[239]

A second and much shorter paper bears for title, "A Declaration of the

favourable dealing of her Majesty's Commissioners, appointed for the

examination of certain traitors, and of tortures unjustly reported to be

done upon them for matter of religion." Its scope was to palliate the

imputation of excessive cruelty with which Europe was then resounding.

Those who revere the memory of Lord Burleigh must blush for this pitiful

apology. "It is affirmed for truth," he says, "that the forms of torture

in their severity or rigour of execution have not been such and in such

manner performed, as the slanderers and seditious libellers have

published. And that even the principal offender, Campian himself, who

was sent and came from Rome, and continued here in sundry corners of the

realm, having secretly wandered in the greater part of the shires of

England in a disguised suit, to be intent to make special preparation of

treasons, was never so racked but that he was perfectly able to walk and

to write, and did presently write and subscribe all his confessions. The

queen's servants, the warders, whose office and act it is to handle the

rack, were ever by those that attended the examinations specially

charged to use it in so charitable a manner as such a thing might be.

None of those who were at any time put to the rack," he proceeds to

assert, "were asked, during their torture, any question as to points of

doctrine; but merely concerning their plots and conspiracies, and the

persons with whom they had had dealings, and what was their own opinion

as to the pope's right to deprive the queen of her crown. Nor was any

one so racked until it was rendered evidently probable by former

detections or confessions that he was guilty; nor was the torture ever

employed to wring out confessions at random; nor unless the party had

first refused to declare the truth at the queen's commandment." Such

miserable excuses serve only to mingle contempt with our

detestation.[240] But it is due to Elizabeth to observe, that she

ordered the torture to be disused; and upon a subsequent occasion, the

quartering of some concerned in Babington's conspiracy having been

executed with unusual cruelty, gave directions that the rest should not

be taken down from the gallows until they were dead.[241]

I should be reluctant, but for the consent of several authorities, to

ascribe this little tract to Lord Burleigh, for his honour's sake. But

we may quote with more satisfaction a memorial addressed by him to the

queen about the same year, 1583, full not only of sagacious, but just

and tolerant advice. "Considering," he says, "that the urging of the

oath of supremacy must needs, in some degree, beget despair, since in

the taking of it, he [the papist] must either think he doth an unlawful

act, as without the special grace of God he cannot think otherwise, or

else, by refusing it, must become a traitor, which before some hurt done

seemeth hard; I humbly submit this to your excellent consideration,

whether, with as much security of your majesty's person and state, and

more satisfaction for them, it were not better to leave the oath to this

sense, that whosoever would not bear arms against all foreign princes,

and namely the pope, that should any way invade your majesty's

dominions, he should be a traitor. For hereof this commodity will ensue,

that those papists, as I think most papists would, that should take this

oath, would be divided from the great mutual confidence which is now

between the pope and them, by reason of their afflictions for him; and

such priests as would refuse that oath then, no tongue could say for

shame that they suffer for religion, if they did suffer.

"But here it may be objected, they would dissemble and equivocate with

this oath, and that the pope would dispense with them in that case. Even

so may they with the present oath both dissemble and equivocate, and

also have the pope's dispensation for the present oath, as well as for

the other. But this is certain, that whomsoever the conscience, or fear

of breaking an oath, both bind, him would that oath bind. And that they

make conscience of an oath, the trouble, losses, and disgraces that they

suffer for refusing the same do sufficiently testify; and you know that

the perjury of either oath is equal."

These sentiments are not such as bigoted theologians were then, or have

been since, accustomed to entertain. "I account," he says afterwards,

"that putting to death does no ways lessen them; since we find by

experience, that it worketh no such effect, but, like hydra's heads,

upon cutting off one, seven grow up, persecution being accounted as the

badge of the church: and therefore they should never have the honour to

take any pretence of martyrdom in England, where the fullness of blood

and greatness of heart is such that they will even for shameful things

go bravely for death; much more, when they think themselves to climb

heaven, and this vice of obstinacy seems to the common people a divine

constancy; so that for my part I wish no lessening of their number, but

by preaching and by education of the younger under schoolmasters." And

hence the means he recommends for keeping down popery, after the

encouragement of diligent preachers and schoolmasters, are, "the taking

order that, from the highest counsellor to the lowest constable, none

shall have any charge or office but such as will really pray and

communicate in their congregation according to the doctrine received

generally into this realm;" and next, the protection of tenants against

their popish landlords, "that they be not put out of their living, for

embracing the established religion."--"This," he says, "would greatly

bind the commons' hearts unto you, in whom indeed consisteth the power

and strength of your realm; and it will make them less, or nothing at

all, depend on their landlords. And, although there may hereby grow some

wrong, which the tenants upon that confidence may offer to their

landlords, yet those wrongs are very easily, even with one wink of your

majesty's, redressed; and are nothing comparable to the danger of having

many thousands depending on the adverse party."[242]

_Increased severity of the government._--The strictness used with

recusants, which much increased from 1579 or 1580, had the usual

consequence of persecution, that of multiplying hypocrites. For, in

fact, if men will once bring themselves to comply, to take all oaths, to

practise all conformity, to oppose simulation and dissimulation to

arbitrary inquiries, it is hardly possible that any government should

not be baffled. Fraud becomes an over-match for power. The real danger

meanwhile, the internal disaffection, remains as before, or is

aggravated. The laws enacted against popery were precisely calculated to

produce this result. Many indeed, especially of the female sex, whose

religion, lying commonly more in sentiment than reason, is less ductile

to the sophisms of worldly wisdom, stood out and endured the penalties.

But the oath of supremacy was not refused; the worship of the church was

frequented by multitudes who secretly repined for a change; and the

council, whose fear of open enmity had prompted their first severities,

were led on by the fear of dissembled resentment to devise yet further

measures of the same kind. Hence, in 1584, a law was enacted, enjoining

all jesuits, seminary priests, and other priests, whether ordained

within or without the kingdom, to depart from it within forty days, on

pain of being adjudged traitors. The penalty of fine and imprisonment at

the queen's pleasure was inflicted on such as, knowing any priest to be

within the realm, should not discover it to a magistrate. This seemed to

fill up the measure of prosecution, and to render the longer

preservation of this obnoxious religion absolutely impracticable. Some

of its adherents presented a petition against this bill, praying that

they might not be suspected of disloyalty on account of refraining from

the public worship, which they did to avoid sin; and that their priests

might not be banished from the kingdom.[243] And they all very justly

complained of this determined oppression. The queen, without any fault

of theirs, they alleged, had been alienated by the artifices of

Leicester and Walsingham. Snares were laid to involve them unawares in

the guilt of treason; their steps were watched by spies; and it was

become intolerable to continue in England. Camden indeed asserts that

counterfeit letters were privately sent in the name of the Queen of

Scots or of the exiles, and left in papists' houses.[244] A general

inquisition seems to have been made about this time; but whether it was

founded on sufficient grounds of previous suspicion, we cannot

absolutely determine. The Earl of Northumberland, brother of him who had

been executed for the rebellion of 1570, and the Earl of Arundel, son of

the unfortunate Duke of Norfolk, were committed to the Tower, where the

former put an end to his own life (for we cannot charge the government

with an unproved murder); and the second, after being condemned for a

traitorous correspondence with the queen's enemies, died in that

custody. But whether or no some conspiracies (I mean more active than

usual, for there was one perpetual conspiracy of Rome and Spain during

most of the queen's reign), had preceded these severe and unfair methods

by which her ministry counteracted them, it was not long before schemes,

more formidable than ever, were put in action against her life. As the

whole body of catholics was irritated and alarmed by the laws of

proscription against their clergy, and by the heavy penalties on

recusancy, which, as they alleged, showed a manifest purpose to reduce

them to poverty;[245] so some desperate men saw no surer means to rescue

their cause than the queen's assassination. One Somerville, half a

lunatic, and Parry, a man who, long employed as a spy upon the papists,

had learned to serve with sincerity those he was sent to betray, were

the first who suffered death for unconnected plots against Elizabeth's

life.[246]

_Plot in favour of Mary._--More deep-laid machinations were carried on

by several catholic laymen at home and abroad, among whom a brother of

Lord Paget was the most prominent.[247] These had in view two objects,

the deliverance of Mary, and the death of her enemy. Some perhaps who

were engaged in the former project did not give countenance to the

latter. But few, if any, ministers have been better served by their

spies than Cecil and Walsingham. It is surprising to see how every

letter seems to have been intercepted, every thread of these

conspiracies unravelled, every secret revealed to these wise counsellors

of the queen. They saw that while one lived, whom so many deemed the

presumptive heir, and from whose succession they anticipated, at least

in possibility, an entire reversal of all that had been wrought for

thirty years, the queen was as a mark for the pistol or dagger of every

zealot. And fortunate, no question, they thought it, that the detection

of Babington's conspiracy enabled them with truth, or a semblance of

truth, to impute a participation in that crime to the most dangerous

enemy whom, for their mistress, their religion, or themselves, they had

to apprehend.

Mary had now consumed the best years of her life in custody; and, though

still the perpetual object of the queen's vigilance, had perhaps

gradually become somewhat less formidable to the protestant interest.

Whether she would have ascended the throne, if Elizabeth had died

during the latter years of her imprisonment, must appear very doubtful,

when we consider the increasing strength of the puritans, the antipathy

of the nation to Spain, the prevailing opinion of her consent to

Darnley's murder, and the obvious expedient of treating her son, now

advancing to manhood, as the representative of her claim. The new

projects imputed to her friends even against the queen's life,

exasperated the hatred of the protestants against Mary. An association

was formed in 1584, the members of which bound themselves by oath "to

withstand and pursue, as well by force of arms as by all other means of

revenge, all manner of persons, of whatsoever state they shall be and

their abettors, that shall attempt any act, or counsel, or consent to

anything that shall tend to the harm of her majesty's royal person; and

never to desist from all manner of forcible pursuit against such

persons, to the utter extermination of them, their counsellors, aiders,

and abettors. And if any such wicked attempt against her most royal

person shall be taken in hand or procured, whereby any that have, may or

shall pretend title to come to this crown by the untimely death of her

majesty so wickedly procured (which God of his mercy forbid!), that the

same may be avenged, we do not only bind ourselves both jointly and

severally never to allow, accept, or favour any such pretended

successor, by whom or for whom any such detestable act shall be

attempted or committed, as unworthy of all government in any christian

realm or civil state, but do also further vow and promise, as we are

most bound, and that in the presence of the eternal and everlasting God,

to _prosecute such person or persons to death_, with our joint and

particular forces, and to act the utmost revenge upon them, that by any

means we or any of us can devise and do, or cause to be devised and done

for their utter overthrow and extirpation."[248]

_Execution of Mary Queen of Scots._--The pledge given by this voluntary

association received the sanction of parliament in an act "for the

security of the queen's person, and continuance of the realm in peace."

This statute enacts that, if any invasion or rebellion should be made by

or for any person pretending title to the crown after her majesty's

decease, or if anything be confessed or imagined tending to the hurt of

her person with the privity of any such person, a number of peers, privy

counsellors, and judges, to be commissioned by the queen, should examine

and give judgment on such offences, and all circumstances relating

thereto; after which judgment all persons against whom it should be

published should be disabled for ever to make any such claim.[249] I

omit some further provisions to the same effect, for the sake of

brevity. But we may remark that this statute differs from the

associators' engagement, in omitting the outrageous threat of pursuing

to death any person, whether privy or not to the design, on whose behalf

an attempt against the queen's life should be made. The main intention

of the statute was to procure, in the event of any rebellious movements,

what the queen's counsellors had long ardently desired to obtain from

her, an absolute exclusion of Mary from the succession. But, if the

scheme of assassination, devised by some of her desperate partisans, had

taken effect, however questionable might be her concern in it, I have

little doubt that the rage of the nation would, with or without some

process of law, have instantly avenged it in her blood. This was, in the

language of parliament, their great cause; an expression which, though

it may have an ultimate reference to the general interest of religion is

never applied, so far as I remember, but to the punishment of Mary,

which they had demanded in 1572, and now clamoured for in 1586. The

addresses of both houses to the queen, to carry the sentence passed by

the commissioners into effect, her evasive answers and feigned

reluctance, as well as the strange scenes of hypocrisy which she acted

afterwards, are well known matters of history, upon which it is

unnecessary to dwell. No one will be found to excuse the hollow

affectation of Elizabeth; but the famous sentence that brought Mary to

the scaffold, though it has certainly left in popular opinion a darker

stain on the queen's memory than any other transaction of her life, if

not capable of complete vindication, has at least encountered a

disproportioned censure.

It is of course essential to any kind of apology for Elizabeth in this

matter, that Mary should have been assenting to a conspiracy against her

life. For it could be no real crime to endeavour at her own deliverance;

nor, under the circumstances of so long and so unjust a detention, would

even a conspiracy against the aggressor's power afford a moral

justification for her death. But though the proceedings against her are

by no means exempt from the shameful breach of legal rules, almost

universal in trials for high treason during that reign (the witnesses

not having been examined in open court); yet the depositions of her two

secretaries, joined to the confessions of Babington and other

conspirators, form a body of evidence, not indeed irresistibly

convincing, but far stronger than we find in many instances where

condemnation has ensued. And Hume has alleged sufficient reasons for

believing its truth, derived from the great probability of her

concurring in any scheme against her oppressor, from the certainty of

her long correspondence with the conspirators (who, I may add, had not

made any difficulty of hinting to her their designs against the queen's

life),[250] and from the deep guilt that the falsehood of the charge

must inevitably attach to Sir Francis Walsingham.[251] Those at least

who cannot acquit the Queen of Scots of her husband's murder, will

hardly imagine that she would scruple to concur in a crime so much more

capable of extenuation, and so much more essential to her interests. But

as the proofs are not perhaps complete, we must hypothetically assume

her guilt, in order to set this famous problem in the casuistry of

public law upon its proper footing.

It has been said so often, that few perhaps wait to reflect whether it

has been said with reason, that Mary, as an independent sovereign, was

not amenable to any English jurisdiction. This, however, does not appear

unquestionable. By one of those principles of law, which may be called

natural, as forming the basis of a just and rational jurisprudence,

every independent government is supreme within its own territory.

Strangers, voluntarily resident within a state, owe a temporary

allegiance to its sovereign, and are amenable to the jurisdiction of

his tribunals; and this principle, which is perfectly conformable to

natural law, has been extended by positive usage even to those who are

detained in it by force. Instances have occurred very recently in

England, when prisoners of war have suffered death for criminal

offences; and if some have doubted the propriety of carrying such

sentences into effect, where a penalty of unusual severity has been

inflicted by our municipal law, few, I believe, would dispute the

fitness of punishing a prisoner of war for wilful murder, in such a

manner as the general practice of civil societies and the prevailing

sentiments of mankind agree to point out. It is certainly true that an

exception to this rule, incorporated with the positive law of nations,

and established, no doubt, before the age of Elizabeth, has rendered the

ambassadors of sovereign princes exempt, in all ordinary cases at least,

from criminal process. Whether, however, an ambassador may not be

brought to punishment for such a flagrant abuse of the confidence which

is implied by receiving him, as a conspiracy against the life itself of

the prince at whose court he resides, has been doubted by those writers

who are most inclined to respect the privileges with which courtesy and

convenience have invested him.[252] A sovereign, during a temporary

residence in the territories of another, must of course possess as

extensive an immunity as his representative. But that he might, in such

circumstances, frame plots for the prince's assassination with impunity,

seems to take for granted some principle that I do not apprehend.

But whatever be the privilege of inviolability attached to sovereigns,

it must, on every rational ground, be confined to those who enjoy and

exercise dominion in some independent territory. An abdicated or

dethroned monarch may preserve his title by the courtesy of other

states, but cannot rank with sovereigns in the tribunals where public

law is administered. I should be rather surprised to hear any one

assert that the parliament of Paris was incompetent to try Christina for

the murder of Monaldeschi. And, though we must admit that Mary's

resignation of her crown was compulsory, and retracted on the first

occasion; yet after a twenty years' loss of possession, when not one of

her former subjects avowed allegiance to her, when the King of Scotland

had been so long acknowledged by England and by all Europe, is it

possible to consider her as more than a titular queen, divested of every

substantial right to which a sovereign tribunal could have regard? She

was styled accordingly, in the indictment, "Mary, daughter and heir of

James the Fifth, late King of Scots, otherwise called Mary Queen of

Scots, dowager of France." We read even that some lawyers would have had

her tried by a jury of the county of Stafford, rather than the special

commission; which Elizabeth noticed as a strange indignity. The

commission, however, was perfectly legal under the recent statute.[253]