Chapter III: On the Laws of Elizabeth's Reign Respecting the Roman Catholics (4)

[252] Questions were put to civilians by the queen's order in 1570, concerning the extent of Lesley, Bishop of Ross's privilege, as Mary's ambassador. _Murden Papers_, p. 18; _Somers Tracts_, i. 186. They answered, first, that an ambassador that raises rebellion against the prince to whom he is sent, by the law of nations, and the civil law of the Romans, has forfeited the privileges of an ambassador, and is liable to punishment: secondly, that if a prince be lawfully deposed from his public authority, and another substituted in his stead, the agent of such a prince cannot challenge the privileges of an ambassador; since none but absolute princes, and such as enjoy a royal prerogative, can constitute ambassadors. These questions are so far curious, that they show the _jus gentium_ to have been already reckoned in matter of science, in which a particular class of lawyers was conversant.

[253] Strype, 360, 362. Civilians were consulted about the legality of trying Mary. _Idem_, Append. 138.

[254] Butler's _English Catholics_, i. 259; Hume. This is strongly confirmed by a letter printed not long after, and republished in the Harleian _Miscellany_, vol. i. p. 142, with the name of one Leigh, a seminary priest, but probably the work of some protestant. He says, "for contributions of money, and for all other warlike actions, there was no difference between the catholic and the heretic. But in this case [of the Armada] to withstand the threatened conquest, yea, to defend the person of the queen, there appeared such a sympathy, concourse, and consent of all sorts of persons, without respect of religion, as they all appeared to be ready to fight against all strangers as it were with one heart and one body." Notwithstanding this, I am far from thinking that it would have been safe to place the catholics, generally speaking, in command. Sir William Stanley's recent treachery in giving up Deventer to the Spaniards made it unreasonable for them to complain of exclusion from trust. Nor do I know that they did so. But trust and toleration are two different things. And even with respect to the former, I believe it far better to leave the matter in the hands of the executive government, which will not readily suffer itself to be betrayed, than to proscribe, as we have done, whole bodies by a legislative exclusion. Whenever, indeed, the government itself is not to be trusted, there arises a new condition of the problem.

[255] Strype, vols. iii. and iv. _passim_; _Life of Whitgift_, 401, 505; Murden, 667; Birch's _Memoirs of Elizabeth_, Lingard, etc. One hundred and ten catholics suffered death between 1588 and 1603. Lingard, 513.

[256] 33 Eliz. c. 2.

[257] Camden, 566; Strype, iv. 56. This was the declaration of October 1591, which Andreas Philopater answered. Ribadeneira also inveighs against it. According to them, its publication was delayed till after the death of Hatton, when the persecuting part of the queen's council gained the ascendency.

[258] Butler, 178. In Coke's famous speech in opening the case of the Powder-plot, he says that not more than thirty priests and five receivers had been executed in the whole of the queen's reign, and for religion not any one. _State Trials_, ii. 179.

Dr. Lingard says of those who were executed between 1588, and the queen's death, "The butchery, with a few exceptions, was performed on the victim while he was in full possession of his senses." Vol. viii. p. 356. I should be glad to think that the few exceptions were the other way. Much would depend on the humanity of the sheriff, which one might hope to be stronger in an English gentleman than his zeal against popery. But I cannot help acknowledging that there is reason to believe the disgusting cruelties of the legal sentence to have been frequently inflicted. In an anonymous memorial among Lord Burleigh's papers, written about 1586, it is recommended that priests persisting in their treasonable opinion should be hanged, "and the manner of drawing and quartering forborne." Strype, iii. 620. This seems to imply that it had been usually practised on the living. And Lord Bacon, in his observations on a libel written against Lord Burleigh in 1592, does not deny the "bowellings" of catholics; but makes a sort of apology for it, as "less cruel than the wheel or forcipation, or even simple burning." Bacon's Works, vol. i. p. 534.

[259] Burnet, ii. 418.

[260] "Though no papists were in this reign put to death purely on account of their religion, as numberless protestants had been in the woeful days of Queen Mary, yet many were executed for treason." Churton's _Life of Nowell_, p. 147. Mr. Southey, whose abandonment of the oppressed side I sincerely regret, holds the same language; and a later writer, Mr. Townsend, in his _Accusations of History against the Church of Rome_, has laboured to defend the capital, as well as other, punishments of catholics under Elizabeth, on the same pretence of their treason.

Treason, by the law of England, and according to the common use of language, is the crime of rebellion or conspiracy against the government. If a statute is made, by which the celebration of certain religious rites is subjected to the same penalties as rebellion or conspiracy, would any man, free from prejudice, and not designing to impose upon the uninformed, speak of persons convicted on such a statute as guilty of treason, without expressing in what sense he uses the words, or deny that they were as truly punished for their religion, as if they had been convicted of heresy? A man is punished for religion, when he incurs a penalty for its profession or exercise, to which he was not liable on any other account.

This is applicable to the great majority of capital convictions on this score under Elizabeth. The persons convicted could not be traitors in any fair sense of the word, because they were not charged with anything properly denominated treason. It certainly appears that Campian and some other priests about the same time were indicted on the statute of Edward III. for compassing the queen's death, or intending to depose her. But the only evidence, so far as we know or have reason to suspect, that could be brought against them, was their own admission, at least by refusing to abjure it, of the pope's power to depose heretical princes. I suppose it is unnecessary to prove that, without some overt act to show a design of acting upon this principle, it could not fall within the statute.

[261] Watson's _Quodlibets_. True relation of the faction begun at Wisbech, 1601. These tracts contain rather an uninteresting account of the squabbles in Wisbech castle among the prisoners, but cast heavy reproaches on the jesuits, as the "firebrands of all sedition, seeking by right or wrong simply or absolutely the monarchy of all England, enemies to all secular priests, and the causes of all the discord in the English nation."--P. 74. I have seen several other pamphlets of the time relating to this difference. Some account of it may be found in Camden, 648, and Strype, iv. 194, as well as in the catholic historians, Dodd and Lingard.

[262] Rymer, xv. 473, 488.

[263] Butler's _Engl. Catholics_, p. 261.

[264] Ribadeneira says, that Hatton, "animo Catholicus, nihil perinde quam innocentem illorum sanguinem adeo crudeliter perfundi dolebat." He prevented Cecil from promulgating a more atrocious edict than any other, which was published after his death in 1591. _De Schismate Anglic._ c. 9. This must have been the proclamation of 29th Nov. 1591, forbidding all persons to harbour any one, of whose conformity they should not be well assured.

[265] Birch, i. 84.