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legitimately deposed could not be clothed by him with the irresponsibility of a public minister. On the other hand, they answered, that a prince not legitimately deposed, and imprisoned in a foreign territory, retained his right of sending privileged ministers: a proposition which seems to be at least laid down with inconvenient latitude.
On the two more pertinent questions, the opinion of the English civilians, though supported by specious reasons, is at variance with the practice of the best times, and would, if enforced, not a little contract that ample security which is essential to the vigorous performance of the arduous duties of an ambassador. Although his perfidy belies his mission, yet there are cases in which a foreign state may think fit to treat those acts as treason which his own government may direct as an execution of their lawful command. Treason, though more directly opposed to a minister's duty than any other crime,is also the very offence in which a fair trial is most nearly impossible. In modern times, the doctrine and usage agree in vesting in the offended state the right of sending back the delinquent minister, and of using such means of expelling him from its territory as are absolutely necessary to its own safety. The answer to the second question would, in strict law, have been unexceptionable, if the legality of the deposition had not been needlessly introduced, and if permanent dispossession were substituted for legal deposition for the right of establishing inviolable ministers depends on the fact, that a nation obeys a government who can regulate the conduct of their subjects to foreigners;—not upon the often very doubtful question whether the actual rulers are also lawful, which no foreign state can justly determine. The length of possession however, the origin of power, and the character of its exercise, are important though undefinable circumstances, which, in cases where possession and obedience are disputed, may affect the policy of foreign states.*
Those who are disposed to investigate this subject, will find it most learnedly treated by Rynkershoek, "De Foro Legatorum." Opp. ii. 121. edit.
About a year before the execution of the duke of Norfolk, Dr. Story, a catholic civilian of considerable note, suffered death, though not for his religion. This man, who was professor of civil law at Oxford under Henry VIII., and opposed the reformation with ability in the house of commons on the accession of Edward, became in the reign of Mary one of the chief instruments of Bonner's butcheries. After the death of Mary, he declared that, far from regret for these executions, he rather lamented that “instead of lopping off boughs and branches, the axe was not laid to the root of the tree:" words which portended no good to Elizabeth. Soon after her accession he fled to Antwerp, where Alva, after the reduction of that city, took him into the Spanish service, and employed him in the occupation of a spy, which nothing but his furious zeal could have disposed him to endure. To the English residents or traders he became necessarily odious, and their hatred against him was embittered by a proclamation interdicting all commercial intercourse with Hamburgh and northern Germany, to prevent the contagion of heresy from spreading into the Netherlands, and with the special purpose of distressing the English merchants. Some of these traders took their revenge by sending a messenger to inform Story that an English ship had just arrived full of heretical books, and that no time was to be lost if he wished to hinder the vent of such poison. He hastened to the shore, and on entering the ship went below, where he was told that the pestilential volumes were hidden. No sooner was he caught in the snare, than Packer, the master, caused the hatches to be shut down, immediately set sail for England, and on his arrival delivered his prey to the more regular authority of the magistrates of Yarmouth. The privy council thanked these magistrates as for an act of spon
1761; the classical work on the question. The majority of readers will be satisfied with Vattel, lib. iv. c. 7, 8, 9.; and, for the modern practice, they will find "Kluber, Droit des Gens moderne de l'Europe," 1819, and "Martens's Précis du Droit des Gens," 1821, useful.
taneous loyalty *, which had been the first means of apprising the council that Story was a prisoner.
On his trial, when he was charged with various acts of treason against the queen, he defended himself on the ground that he was not an English subject, having sworn allegiance to Philip; in answer to which, his accusers contented themselves with asking where he was born; and on his answering "In England,” they condemned him, on the principle that no man can renounce his subjection to the government of his native country, which was then undisputed in Europe, and is still established in Great Britain. On the 1st of June, 1571, he suffered the inhuman punishment inflicted by a barbarous law on traitors, of which some writers have particularised the horrible circumstances in the narrative of his case, as if it had been peculiar to him, and as if it had not been for ages before and after his execution the legal punishment of treason. It must be added that, in civilised times, when executioners, more humane than lawgivers, by inflicting death before the execution of the other unspeakable horrors of the sentence, had practically abrogated the law, and converted what was meant for torture of the living into indignities offered to the remains of the dead, there were not wanting statesmen and lawyers, otherwise of good character, in the British house of commons, who made an obstinate stand for the retention of a sentence of such indecent and unmanly atrocity, that the particulars of it cannot be exhibited in their native hideousness.t
At the moment when the sky of Elizabeth's reign began to be darkened, three of those versatile politicians who had the art and fortune to slide unhurt through all the shocks of forty years of a revolutionary age, were released from the necessity of farther exertions of their
* Books of Privy Council, Aug. 17. 1570.
+ Parliam. Debates, xxv. 576.; xxviii. Appendix, 84. It should be for ever remembered, that on the 5th of April, 1813, a bill to take away this can, nibal pishment, proposed by the wise and virtuous Romilly, was lost in the house of commons by a majority of 55 to 43. In the next session it was indeed carried. Stat. 54 Geo. 3. c. 146.
address. The marquess of Winchester, who had served Henry VII., and retained office under every intermediate government, till he died, in his ninety-seventh year, with the staff of lord treasurer in his hands, is perhaps the most remarkable specimen of this species preserved in history. William Herbert, whom Henry VIII. had enriched by a grant of the monastery of Wilton, and ennobled by the title of Earl of Pembroke, had with open arms devoted himself to every sovereign, and had the nimbleness to acknowledge and desert the excellent queen Jane in her reign of a few days. When Mary restored Wilton to the nuns, he received them, as we are told, " cap in hand;" but when they were suppressed by Elizabeth, he drove them out of the house with his horsewhip, addressing them by an appellation which implied their constant breach of the severe virtue which they had vowed to observe. Sir William Petre, who had been secretary of state under Henry and his three children, was a more favourable sample of the same race, who kept his station by the usefulness of his services, without any vices but those of equal support of good and bad governments.
The parliament, which met in 1571, furnished the first considerable instances of a pacific but vigorous resistance in the house of commons to the power of the crown. It has already been remarked, that the necessity which compelled Henry VIII. to obtain parliamentary concurrence, and thereby national support, to the violent revolutions which he made in the regal succession and in the ecclesiastical establishment, had the most decisive tendency to strengthen the authority of parliament. Both Edward and Mary were obliged for the like purposes to establish the jurisdiction of that assembly by examples of a similar nature. That Elizabeth contributed yet more largely to the same effect, has already appeared in a short review of her previous parliaments, and will be still more conspicuous in the transactions of those which are to follow.
Before this period, the struggles for the establishment
of liberty, though they breathe an exalted spirit, and are pregnant with instructive lessons to the founders and improvers of free institutions, yet occurred in circumstances so unlike ours, and were justifiably mingled with so much violence, that, even where our information respecting them is complete, we cannot venture to follow them closely, or to copy them with that deference which is due to the precedents of a calmer and more near period. Much of what was done by Elizabeth must be blamed; but a great part of it may be explained under an immature constitution, by the perils which encompassed her, and by her popularity, which disposed the people to acquiesce in the irregular measures of a monarch who was rather their leader than their sovereign. This princess, who was so fortunate (whatever might have been her motives) as to be engaged in a constant and hazardous contest for the preservation of national independence and of religious liberty, was easily pardoned by her people for some of those infractions of the rights of individuals, which she was tempted or provoked to hazard. It must be acknowledged that her example was in this respect dangerous to those of her successors who, without the same glorious justification, employed their feeble faculties in more extensive transgressions.
The first impulse towards a somewhat systematical opposition of a political nature arose from religion, the prime mover of all the great events of that age. Strickland, " a grave and ancient man*," like most others zealously well affected to religion, was a member of the sect, or rather party, called Puritans, who were desirous of purifying their worship from practices abused by superstition, and of exalting the fervour of their piety to a pitch which would render it more independent of outward ceremonies. On the 6th of April he moved that a conference be desired with the spiritual lords on the means of bringing all things back to the purity of the primitive church, and to the divine institutions of Christ himself; but more especially to reform the more flagrant
* D'Ewes, 156.