Chapter III: On the Laws of Elizabeth's Reign Respecting the Roman Catholics (2)

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]

But, while we can hardly pronounce Mary's execution to have been so wholly iniquitous and unwarrantable as it has been represented, it may be admitted that a more generous nature than that of Elizabeth would not have exacted the law's full penalty. The Queen of Scots' detention in England was in violation of all natural, public, and municipal law; and if reasons of state policy or precedents from the custom of princes are allowed to extenuate this injustice, it is to be asked whether such reasons and such precedents might not palliate the crime of assassination imputed to her. Some might perhaps allege, as was so frequently urged at the time, that if her life could be taken with justice, it could not be spared in prudence; and that Elizabeth's higher duty to preserve her people from the risks of civil commotion must silence every feeling that could plead for mercy. Of this necessity different judgments may perhaps be formed; it is evident that Mary's death extinguished the best hope of popery in England: but the relative force of the two religions was greatly changed since Norfolk's conspiracy; and it appears to me that an act of parliament explicitly cutting her off from the crown, and at the same time entailing it on her son, would have afforded a very reasonable prospect of securing the succession against all serious disturbance. But this neither suited the inclination of Elizabeth, nor of some among those who surrounded her.

_Continued persecution of Roman catholics_.--As the catholics endured without any open murmuring the execution of her on whom their fond hopes had so long rested, so for the remainder of the queen's reign they by no means appear, when considered as a body, to have furnished any specious pretexts for severity. In that memorable year, when the dark cloud gathered around our coasts, when Europe stood by in fearful suspense to behold what should be the result of that great cast in the game of human politics, what the craft of Rome, the power of Philip, the genius of Farnese, could achieve against the island-queen with her Drakes and Cecils--in that agony of the protestant faith and English name, they stood the trial of their spirits without swerving from their allegiance. It was then that the catholics in every county repaired to the standard of the lord-lieutenant, imploring that they might not be suspected of bartering the national independence for their religion itself. It was then that the venerable Lord Montague brought a troop of horse to the queen at Tilbury, commanded by himself, his son and grandson.[254] It would have been a sign of gratitude if the laws depriving them of the free exercise of their religion had been, if not repealed, yet suffered to sleep, after these proofs of loyalty. But the execution of priests and of other catholics became on the contrary more frequent, and the fines for recusancy exacted as rigorously as before.[255] A statute was enacted, restraining popish recusants, a distinctive name now first imposed by law, to particular places of residence, and subjecting them to other vexatious provisions.[256] All persons were forbidden, by proclamation, to harbour any of whose conformity they were not assured.[257] Some indulgence was doubtless shown during all Elizabeth's reign to particular persons, and it was not unusual to release priests from confinement; but such precarious and irregular connivance gave more scandal to the puritans than comfort to the opposite party.

The catholic martyrs under Elizabeth amount to no inconsiderable number. Dodd reckons them at 191; Milner has raised the list to 204. Fifteen of these, according to him, suffered for denying the queen's supremacy, 126 for exercising their ministry, and the rest for being reconciled to the Romish church. Many others died of hardships in prison, and many were deprived of their property.[258] There seems nevertheless to be good reason for doubting whether any one who was executed might not have saved his life by explicitly denying the pope's power to depose the queen. It was constantly maintained by her ministers, that no one had been executed for his religion. This would be an odious and hypocritical subterfuge, if it rested on the letter of these statutes, which adjudge the mere manifestation of a belief in the Roman catholic religion, under certain circumstances, to be an act of treason. But both Lord Burleigh, in his _Execution of Justice_, and Walsingham in a letter published by Burnet,[259] positively assert the contrary; and I am not aware that their assertion has been disproved. This certainly furnishes a distinction between the persecution under Elizabeth (which, unjust as it was in its operation, yet as far as it extended to capital inflictions, had in view the security of the government), and that which the protestants had sustained in her sister's reign, springing from mere bigotry and vindictive rancour, and not even shielding itself at the time with those shallow pretexts of policy which it has of late been attempted to set up in its extenuation. But that which renders these condemnations of popish priests so iniquitous, is, that the belief in, or rather the refusal to disclaim, a speculative tenet, dangerous indeed and incompatible with loyalty, but not coupled with any overt act, was construed into treason; nor can any one affect to justify these sentences, who is not prepared to maintain that a refusal of the oath of abjuration, while the pretensions of the house of Stuart subsisted, might lawfully or justly have incurred the same penalty.[260]

An apology was always deduced for these measures, whether of restriction or punishment, adopted against all adherents to the Roman church, from the restless activity of that new militia which the holy see had lately organised. The mendicant orders established in the thirteenth century had lent former popes a powerful aid towards subjecting both the laity and the secular priesthood, by their superior learning and ability, their emulous zeal, their systematic concert, their implicit obedience. But in all these requisites for good and faithful janissaries of the church, they were far excelled by the new order of Ignatius Loyola. Rome, I believe, found in their services what has stayed her fall. They contributed in a very material degree to check the tide of the reformation. Subtle alike and intrepid, pliant in their direction, unshaken in their aim, the sworn, implacable, unscrupulous enemies of protestant governments, the jesuits were a legitimate object of jealousy and restraint. As every member of that society enters into an engagement of absolute, unhesitating obedience to its superior, no one could justly complain that he was presumed capable at least of committing any crimes that the policy of his monarch might enjoin. But if the jesuits by their abilities and busy spirit of intrigue promoted the interests of Rome, they raised up enemies by the same means to themselves within the bosom of the church; and became little less obnoxious to the secular clergy, and to a great proportion of the laity, than to the protestants whom they were commissioned to oppose. Their intermeddling character was shown in the very prisons occupied by catholic recusants, where a schism broke out between the two parties, and the secular priests loudly complained of their usurping associates.[261] This was manifestly connected with the great problem of allegiance to the queen, which the one side being always ready to pay, did not relish the sharp usage it endured on account of the other's disaffection. The council indeed gave some signs of attending to this distinction, by a proclamation issued in 1602, ordering all priests to depart from the kingdom, unless they should come in and acknowledge their allegiance, with whom the queen would take further order.[262] Thirteen priests came forward on this, with a declaration of allegiance as full as could be devised. Some of the more violent papists blamed them for this; and the Louvain divines concurred in the censure.[263] There were now two parties among the English catholics; and those who, goaded by the sense of long persecution, and inflamed by obstinate bigotry, regarded every heretical government as unlawful or unworthy of obedience, used every machination to deter the rest from giving any test of their loyalty. These were the more busy, but by much the less numerous class; and their influence was mainly derived from the law's severity, which they had braved or endured with fortitude. It is equally candid and reasonable to believe that, if a fair and legal toleration, or even a general connivance at the exercise of their worship, had been conceded in the first part of Elizabeth's reign, she would have spared herself those perpetual terrors of rebellion which occupied all her later years. Rome would not indeed have been appeased, and some desperate fanatic might have sought her life; but the English catholics collectively would have repaid her protection by an attachment, which even her rigour seems not wholly to have prevented.

It is not to be imagined that an entire unanimity prevailed in the councils of this reign as to the best mode of dealing with the adherents of Rome. Those temporary connivances or remissions of punishment, which, though to our present view they hardly lighten the shadows of this persecution, excited loud complaints from bigoted men, were owing to the queen's personal humour, or the influence of some advisers more liberal than the rest. Elizabeth herself seems always to have inclined rather to indulgence than extreme severity. Sir Christopher Hatton, for some years her chief favourite, incurred odium for his lenity towards papists, and was, in their own opinion, secretly inclined to them.[264] Whitgift found enough to do with an opposite party. And that too noble and high-minded spirit, so ill fitted for a servile and dissembling court, the Earl of Essex, was the consistent friend of religious liberty, whether the catholic or the puritan were to enjoy it. But those counsellors, on the other hand, who favoured the more precise reformers, and looked coldly on the established church, never failed to demonstrate their protestantism by excessive harshness towards the old religion's adherents. That bold bad man, whose favour is the great reproach of Elizabeth's reign, the Earl of Leicester, and the sagacious, disinterested, inexorable Walsingham, were deemed the chief advisers of sanguinary punishments. But, after their deaths, the catholics were mortified to discover that Lord Burleigh, from whom they had hoped for more moderation, persisted in the same severities; contrary, I think, to the principles he had himself laid down in the paper from which I have above made some extracts.[265]

The restraints and penalties, by which civil governments have at various times thought it expedient to limit the religious liberties of their subjects, may be arranged in something like the following scale. The first and slightest degree is the requisition of a test of conformity to the established religion, as the condition of exercising offices of civil trust. The next step is to restrain the free promulgation of opinions, especially through the press. All prohibitions of the open exercise of religious worship appear to form a third, and more severe, class of restrictive laws. They become yet more rigorous, when they afford no indulgence to the most private and secret acts of devotion or expressions of opinion. Finally, the last stage of persecution is to enforce by legal penalties a conformity to the established church, or an abjuration of heterodox tenets.

The first degree in this classification, or the exclusion of dissidents from trust and power, though it be always incumbent on those who maintain it to prove its necessity, may, under certain rare circumstances, be conducive to the political well-being of a state; and can then only be reckoned an encroachment on the principles of toleration, when it ceases to produce a public benefit sufficient to compensate for the privation it occasions to its objects. Such was the English Test Act during the interval between 1672 and 1688. But, in my judgment, the instances which the history of mankind affords, where even these restrictions have been really consonant to the soundest policy, are by no means numerous. Cases may also be imagined, where the free discussion of controverted doctrines might for a time at least be subjected to some limitation for the sake of public tranquillity. I can scarcely conceive the necessity of restraining an open exercise of religious rites in any case, except that of glaring immorality. In no possible case can it be justifiable for the temporal power to intermeddle with the private devotions or doctrines of any man. But least of all, can it carry its inquisition into the heart's recesses, and bend the reluctant conscience to an insincere profession of truth, or extort from it an acknowledgment of error, for the purpose of inflicting punishment. The statutes of Elizabeth's reign comprehend every one of these progressive degrees of restraint and persecution. And it is much to be regretted that any writers worthy of respect should, either through undue prejudice against an adverse religion, or through timid acquiescence in whatever has been enacted, have offered for this odious code the false pretext of political necessity. That necessity, I am persuaded, can never be made out: the statutes were, in many instances, absolutely unjust; in others, not demanded by circumstances; in almost all, prompted by religious bigotry, by excessive apprehension, or by the arbitrary spirit with which our government was administered under Elizabeth.

FOOTNOTES:

[155] Elizabeth was much suspected of a concern in the conspiracy of 1554, which was more extensive than appeared from Wyatt's insurrection, and had in view the placing her on the throne, with the Earl of Devonshire for her husband. Wyatt indeed at his execution acquitted her; but as he said as much for Devonshire, who is proved by the letters of Noailles to have been engaged, his testimony is of less value. Nothing, however, appears in these letters, I believe, to criminate Elizabeth. Her life was saved, against the advice of the imperial court, and of their party in the cabinet, especially Lord Paget, by Gardiner, according to Dr. Lingard, writing on the authority of Renard's despatches. Burnet, who had no access to that source of information, imagines Gardiner to have been her most inveterate enemy. She was even released from prison for the time, though soon afterwards detained again, and kept in custody, as is well known, for the rest of this reign. Her inimitable dissimulation was all required to save her from the penalties of heresy and treason. It appears by the memoir of the Venetian ambassador, in 1557 (Lansdowne MSS. 840), as well as from the letters of Noailles, that Mary was desirous to change the succession, and would have done so, had it not been for Philip's reluctance, and the impracticability of obtaining the consent of parliament. Though of a dissembling character, she could not conceal the hatred she bore to one who brought back the memory of her mother's and her own wrongs; especially when she saw all eyes turned towards the successor, and felt that the curse of her own barrenness was to fall on her beloved religion. Elizabeth had been not only forced to have a chapel in her house, and to give all exterior signs of conformity, but to protest on oath her attachment to the catholic faith; though Hume, who always loves a popular story, gives credence to the well known verses ascribed to her, in order to elude a declaration of her opinion on the sacrament. The inquisitors of that age were not so easily turned round by an equivocal answer. Yet Elizabeth's faith was constantly suspected. "Accresce oltro questo l'odio," says the Venetian, "il sapere che sia aliena dalla religione presente, per essere non pur nata, ma dotta ed allevata nell' altra, che se bene con la esteriore ha mostrato, e mostra di essersi ridotta, vivendo cattolicamente, pure e opinione che dissimuli e nell' interiore la ritenga piu che mai."

[156] Elizabeth ascended the throne November 17, 1558. On the 5th of December Mary was buried; and on this occasion White, bishop of Winchester, in preaching her funeral sermon, spoke with virulence against the protestant exiles, and expressed apprehension of their return. Burnet, iii. 272. Directions to read part of the service in English, and forbidding the elevation of the host, were issued prior to the proclamation of December 27, against innovations without authority. The great seal was taken from Archbishop Heath early in January, and given to Sir Nicholas Bacon. Parker was pitched upon to succeed Pole at Canterbury in the preceding month. From the dates of these and other facts, it may be fairly inferred that Elizabeth's resolution was formed independently of the pope's behaviour towards Sir Edward Karn; though that might probably exasperate her against the adherents of the Roman see, and make their religion appear more inconsistent with their civil allegiance. If, indeed, the refusal of the bishops to officiate at her coronation (January 14, 1558-9) were founded in any degree on Paul IV.'s denial of her title, it must have seemed in that age within a hair's-breadth of high treason. But it more probably arose from her order that the host should not be elevated, which in truth was not legally to be justified. Mass was said, however, at her coronation; so that she seems to have dispensed with this prohibition.

[157] See a paper by Cecil on the best means of reforming religion, written at this time with all his cautious wisdom, in Burnet, or in Strype's _Annals of the Reformation_, or in the _Somers Tracts_.

[158] _Parl. Hist._ vol. i. p. 394. In the reign of Edward, a prayer had been inserted in the liturgy to deliver us "from the Bishop of Rome and all his detestable enormities." This was now struck out; and, what was more acceptable to the nation, the words used in distributing the elements were so contrived by blending the two forms successively adopted under Edward, as neither to offend the popish or Lutheran, nor the Zuinglian communicant. A rubric directed against the doctrine of the real or corporal presence was omitted. This was replaced after the restoration. Burnet owns that the greater part of the nation still adhered to this tenet though it was not the opinion of the rulers of the church. ii. 390, 406.

[159] Burnet; Strype's _Annals_, 169. Pensions were reserved for those who quitted their benefices on account of religion. Burnet, ii. 398. This was a very liberal measure, and at the same time a politic check on their conduct. Lingard thinks the number must have been much greater; but the visitors' reports seem the best authority. It is however highly probable that others resigned their preferments afterwards, when the casuistry of their church grew more scrupulous. It may be added, that the visitors restored the married clergy who had been dispossessed in the preceding reign; which would of course considerably augment the number of sufferers for popery.