yours, the royal dignity itself, neither by the civil or CHA P. canon law, nor by the law of nature or of nations, is XLIII. "exempt from judgment. If you be innocent, you

66

"wrong your reputation in avoiding a trial. We have 1586. "been present at your protestations of innocence: But 66 queen Elizabeth thinks otherwife; and is heartily for"ry for the appearances, which lie against you. To ex

amine, therefore, your caufe, fhe has appointed com"miffioners; honourable perfons, prudent and upright 66 men, who are ready to hear you with equity, and even "with favour, and will rejoice if you can clear yourself "of the imputations, which have been thrown upon you. "Believe me, madam, the queen herself will rejoice, who "affirmed to me at my departure, that nothing, which, "ever befel her, had given her fo much uneafiness, as "that you should be fufpected of a concurrence in these "criminal enterprizes. Laying afide, therefore, the "fruitless claim of privilege from your royal dignity, "which can now avail you nothing, trust to the better "defence of your innocence, make it appear in open "trial, and leave not upon your memory that stain of "infamy, which must attend your obftinate filence on "this occafion M "

By this artful fpeech, Mary was persuaded to answer before the court; and thereby give an appearance of legal procedure to the trial, and prevented thofe difficulties, which the commiffioners must have fallen into, had she perfevered in maintaining fo fpecious a plea as that of her fovereign and independent character. Her conduct in this particular must be regarded as the more imprudent; becaufe formerly, when Elizabeth's commiffioners pretended not to exercife any jurifdiction over her, and only entered into her cause by her own confent and approbation, she declined juftifying herfelf, when her honour, which ought to have been dearer to her than life, feemed abfolutely to require it.

ON her first appearance before the commiffioners, Mary, either fenfible of her imprudence, or ftill unwilling to degrade herself by fubmitting to a trial, renewed her The trian proteftation against the authority of her judges: The chancellor answered her by pleading the fupreme authority of the English laws over every one who refided in Eng

M Camden, p. 523,

land

CHAP. land: And the commiffioners accommodated matters, XLIII. by ordering both her proteftation and his answer to be re

corded.

1586. THE lawyers of the crown then opened the charge against the queen of Scots. They proved, by intercepted letters, that he had allowed cardinal Allen and others to treat her as queen of England; and that fhehad kept a correspondence with lord Paget and Charles Paget, in a view of engaging the Spaniards to invade the kingdom. Mary feemed not anxious to clear herself from either of these imputations. She only faid, that fhe could not hinder others from ufing what ftyle they pleased in writing to' her; and that the might lawfully try every expedient for the recovery of her liberty.

AN intercepted letter of her's to Mendoza was next produced; in which the promised to transfer to Philip her right to the kingdom of England, if her fon fhould refufe to be converted to the catholic faith; an event, she faid, of which there was no expectation, while he remained in the hands of his Scottish subjects N. Even this part of the charge, fhe took no pains to deny, or rather she feemed to acknowledge it. She faid, that the had no kingdoms to difpofe of; yet was it lawful for her to give at her pleasure what was her own, and he was not accountable to any for her actions. She added, that the had formerly rejected that propofal from Spain; but now, fince all her hopes in England were gone, fhe was fully determined not to refufe foreign affistance. There was also produced evidence to prove, that Allen and Parsons were at that very time negociating by her orders at Rome the conditions of transferring her English crown to the king of Spain, and of difinheriting her heretical fon...

IT is remarkable, that Mary's prejudices against her fon were, at this time, carried to far, that he had even entered into a confpiracy against him, had appointed lord Claud Hamilton regent of Scotland, and had inftigated her adherents to feize James's perfon, and deliver him into the hands of the pope or the king of Spain; whence he was never to be delivered but on condition of his becoming a catholic P. THE

N. State Trials, vol. i. p. 138.. O See note at the end of the volume. P See note at the end of the volume.

1586.

THE only part of the charge, which Mary pofitively CHA P. denied, was her concurrence in the defign of affaffinat- XLIII. ing Elizabeth. This article indeed was the moft heavy, and the only one, which could fully juftify the queen in proceeding to extremities against her. In order to prove the accufation, there were produced the following evidence Copies taken in fecretary Walfingham's office of the intercepted letters between her and Babington, in which her approbation of the murder was clearly expreffed; the evidence of her two fecretaries, Nau and Curle, who had fworn, without being put to any torture, boththat the received these letters from Babington, and that they had written the answers, by her order; the confeffion of Babington, that he had written the letters and received the answers; and the confeffion of Ballard and Savage, that Babington had fhewed them these letters of Mary written in the cypher, which had been fettled between them.

IT is evident, that this feeming complication of evidence refolves itfelf finally into the teftimony of the two fecretaries, who alone were certainly acquainted with their mistress's concurrence in Babington's confpiracy, but who knew themselves expofed to all the rigours of imprisonment, torture, and death, if they refused to give any evidence, which might be required of them. In the cafe of an ordinary criminal, this proof, with all its disadvantages, would be efteemed legal, and even fatisfactory, if not oppofed by fome other circumftances, which fhake the credit of the witneffes: But on the present trial, where the abfolute power of the profecutor concurred with fuch. important interefts and fuch a violent inclination to have the princefs condemned; the teftimony of two witneffes, even though men of character, ought to be supported by strong circumftances, in order to remove all fufpicion of tyranny and injuftice. The proof against Mary, it must be confeffed, is not deftitute of this advantage; and it is difficult, if not impoffible, to account for Babington's receiving an anfwer, written in her name, and in the cypher concerted between them, without allowing, that the matter had been communicated to that princess. Such is the light in which this matter appears, even after time has difcovered every thing, which could guide our judgment with regard to it: No wonder, therefore, that

State Trials, vol. i. p. 113.

the

CHAP. the queen of Scots, unaffifted by council, and confounded XLIII. by fo extraordinary a trial, found herself incapable of making a fatisfactory defence before the commiffioners. 1586. Her reply confifted chiefly in her own denial: Whatever force may be in that denial was much weakened, by her pofitively affirming, that the never had any correfpondence of any kind with Babington; a fact, however, of which there remains not the least question R. She afferted, that, as Nau and Curle had taken an oath of fecrecy and fidelity to her, their evidence against her ought not to be credited. She confeffed, however, that Nau had been in the service of her uncle, the cardinal of Lorraine, and had been recommended to her by the king of France, as a man in whom the might fafely confide. She also acknowledged Curle to be a very honest man, but fimple, and easily imposed on by Nau. If thefe two men had received any letters, or had written any answers, without her knowledge; the imputation, the faid, could never lie on her. And he was the more inclined, fhe added, to entertain this fufpicion against them, because Nau had, in other inftances, been guilty of a like temerity, and had ventured to tranfact bufinefs in her name, without communicating the matter to her $.

THE fole circumstance of her defence, which to us may appear to have fome force, was her requiring that Nau and Curle fhould be confronted with her, and her affirming that they never would to her face perfift in their evidence. But that demand, however equitable, was not then fupported by law in trials of high treason, and was often refused, even in other trials, where the crown was prosecutor. The clause, contained in an act of the 13th of the queen, was a novelty; that the fpecies of treafon there enumerated must be proved by two witneffes, confronted with the criminal. But Mary was not tried upon that act; and the minifters and crown lawyers of this reign were always fure to refufe every indulgence beyond what the ftrict letter of the law. and the fettled practice of the courts of justice required of them. Not to mention, that thefe fecretaries were not probably at Fotheringay-caftle during

the

R See note at the end of the volume. S See note at the end of the volume.

the time of the trial, and could not, upon Mary's de- CHA P mand, be produced before the commiffioners T.

XLIII.

THERE paffed two incidents in this trial, which may be worth obferving. A letter between Mary and Babing- 1586. ton was read, in which mention was made of the earl of Arundel and his brothers: On hearing their names the broke into a figh. Alas," faid the, "what has the no"ble houfe of the Howards fuffered for my fake!" She affirmed, with regard to the fame letter, that it was caly to forge the hand-writing and cypher of another; she was afraid, that this was too familiar a practice with Wallingham, who, the alfo heard, had frequently practifed both, against her life and her fon's. Walfingham, who was one of the commiffioners, rofe up. He protefted, that, in his private capacity, he had never acted any thing against the queen of Scots: In his public capacity, he owned, that, his concern for his fovereign's fafety had made him very diligent in fearching out, by every expedient, all defigns against her facred perfon or her authority. For attaining that end, he would not only make ufe of the affiftance of Ballard, or any other confpirator: He would alfo reward them for betraying their companions. But if he had tampered in any manner, unbefitting his character and office, why did none of the late criminals, either at their trial or execution, accufe him of such practices? Mary endeavoured to pacify him, by faying that the spoke from information; and fhe begged him to give thenceforth no more credit to fuch as flandered her, than fhe fhould to fuch as accufed him. The great character, indeed, which fir Francis Walfingham bears for probity and honour, should remove from him all fufpicion of fuch bafe arts as forgery and fubornation; arts, which even the moft corrupt minifters, in the most corrupt times, would fcruple to employ.

HAVING finished the trial, the commiffioners adjourned 25th O&. from Fotheringay-caftle, and met in the Star Chamber at London; where, after taking the oaths of Mary's two VOL. V.

R

fecreta

T Queen Elizabeth was willing to have allowed Curle and Nau to be produced in the trial, and writes to that purpose, to Burleigh and Walfingham, in her letter of the 7th of October, in Forbes's MS. collections. She only fays, that fhe thinks it needlefs, though he was willing to agree to it. The not confronting of the witneffes was not the result of defign, but the practice of the age.