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her, as she seems to intimate, by importunate counsel, on the 30th of April, which she countermanded with her own hand at the unseasonable hour of two o'clock in the morning. These circumstances are more indicative of conflicting emotions, than of the hypocritical policy to which they have been ascribed. * We learn from Cecil that the queen 66 I was somewhat sad" after the
death of Norfolk. † It is not unreasonable to believe with Camden that Norfolk would have been spared if the rumour of conspiracy to release him had not supplied the sterner statesmen with a specious reason for his execution. He was put to death on the 8th of June, 1572. He was the only nobleman who perished on the scaffold during the first fourteen years of Elizabeth's reign. The people, to whom he was endeared by his benignity and gracious deportment, not to mention the fine proportions of his person and the manly beauty of his countenance, were moved to compassion by the fate of so excellent a man. § They called to mind the fortunes of his father, adorned as he was by the fame of letters and of arms, who had five and twenty years before perished on the same spot. Elizabeth betrayed her sense of the odium of the execution of the most popular of her nobility, when his sister, lady Berkeley, two years after, having knelt down to obtain a grace from the queen, the latter answered in haste, “No! no! my lady Berkeley! We know you never will love us, for the death of your brother." || Sir Ralph Sadler, in a letter full of insolence and sarcasm, described the impression of Norfolk's conviction on the queen of Scots, whose prison was at that time at Sheffield. During the week of his arraignment and trial, "she never once looked out of her chamber." When she heard the conviction noised abroad in the household, "this queen wept very bitterly, so that my lady Shrewsbury found her weeping and mourning so as to ask the queen what ailed
* Ellis, ii. 262. Camd. 255.
+ Digges, 212.
Fosbroke's Extracts from Smythe's Lives of the Berkeleys, 190. Lon
her; to which she answered, that my lady could not be ignorant of the cause." * What previous faults of such a woman could dispose a manly spirit to withhold fellow feeling from her when she was in the hands of a gaoler, who made her generous sorrows the subject of scurrilous ribaldry?
A great part of the conspiracy to restore Mary through the means of an union with Norfolk, was carried on by Leslie, her representative at the court of London, who was committed to the Tower, where he confessed more important circumstances than were suitable to his deserved reputation for faith and firmness. This prelate complained loudly that the sacred, because most useful, privileges of ambassadors were violated in his person. To his remonstrances the English government returned a twofold answer. They contended that the exemption of ambassadors from those laws to which all other resident aliens were amenable, had for its professed purpose and sole object the preservation of amity with foreign states ; but that a crime so flagrantly adverse to this object as high treason could not be embraced within diplomatic inviolability. They urged, again, that as sovereigns negotiate only on behalf of the communities who own their authority, a dispossessed sovereign wanted the quality most essential to the right of sending ambassadors; that Leslie was no more than the ordinary agent of a princess who, by her abdication, had become a private individual, and that Elizabeth could not consent to clothe her agent with the immunities of the diplomatic character, without contradicting her own recognition of the young king of Scots, and betraying the interests of her neighbours and friends, the successive regents of Scotland.
The English civilians, who were consulted on this grave occasion, determined that the most legitimate ambassador would forfeit his immunities by exciting rebellion against the state with which he was commissioned to cultivate friendship; and that the agents of a prince
Ellis, second series, ii. 329.
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 cannibal punishment, 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.