the others, I object to them that they are traitors, having confessed treason, and so are not to be received as wit

nesses.

Catline, C. J. Bracton is indeed an old writer of our law; and, by Bracton, a foreigner may be a witness.

Wilbraham. This were a strange device, that Scots may not be witnesses; for so, if a man would commit treason, and make none privy but Scots, the treason were unpunishable.

Duke. But it is said that my indictment is founded upon the Statute of 25th Edward III. That Statute consists of three points, compassing the death of the Prince's person, levying of war against the Prince, and aiding of the Prince's enemies; and all these must be proved by overt facts. If, by any way, by any overt fact, you can prove that I have directly touched the Prince's person, or done any of the things that the Statute extendeth to, I will yield myself guilty.

Attorney-General. As to your objection upon the statute, if the Lords, upon the evidence already produced, do think the matters alleged against you to be true in fact, surely the same must needs be construed a compassing of the Queen's death; for the law of treason hath ever been largely construed for the Prince's safety. The practising to levy war within the realm is treason, and a compassing of the Prince's death. Sir William Stanley's case was this: he did but send Clifford over sea, to hearken and send him word what Perkin Warbeck was; that if he thought Perkin was such a man as he was said to be, he would take his part. This was Stanley's case*; and this was adjudged to be treason, and a compassing of the King's death.

Catline, C. J. Usage is the best expounder of the law; and that is the common use how the statute hath been taken and expounded; besides, that Statute was merely a declaration of the Common Law.

Duke. The preamble states, that it was necessary to bring the laws of treason to a certainty, that men may certainly know what is treason.

Attorney-General. You complained of your close im

* See Howell's State Trials, vol. i. p. 277.

prisonment, that you had no books to provide for your answer. It seemeth, however, that you have had books and counsel, for you allege books, statutes, and Bracton. I am sure the study of such books is not in your profession.

Duke. I have been in trouble these two years; think you that in all this time I have not had cause to look for myself

Here was read a part of Barker's Confession*, of the 6th November, 1571, as follows:

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Being asked what he knew of the distribution of the money sent by the Pope, and entrusted to Rudolphi, "he saith, "I understood of Rudolphi, that he had money of the Pope to distribute to the Earl of West'moreland, and others, that had risen against the Queen's Majesty; and that the Bishop of Rosse should take order how it might be sent unto them. The Bishop did use then to ask my Lord's advice in every thing; and, as I can now remember, my Lord's opinion was, that 'my Lord of Westmoreland should have a portion of it now, and my Lady of Northumberland another; ' and that it should be sent them so, as Leonard Dacre I might not intercept it, who then lay at the West Bor'ders; but the Bishop and Rudolphi were willing that Mr. Dacre should be relieved also, and I think gave 'order for it. And when it was heard that my Lord of 'Westmoreland and they were gone into Flanders, then 'did Rudolphi, as far as I can remember, send a man of his expressly into Flanders, to make the distribution there, and order was taken that they should have it ' delivered them monthly."

Duke. I never dealt with that money, nor heard of it ; ; I dealt not at that time with Barker, nor heard anything of the rebels, since they went into Flanders.

Then was read a part of the Bishop of Rosse's Confession of the same matter, taken 6th November, 1571, as follows:

'He saith," that when he understood by Rudolphi, 'that the Pope had assigned the sum of twelve thousand crowns in Flanders, to be distributed for the relief of

* Murdin, p. 125

+ Ibid., p. 49.

་

the English rebels in Flanders, this Examinate did advertise the Duke of Norfolk thereof, requiring that by his means some part thereof might be sent by land to the West Borders of Scotland, to be delivered by the means of Leonard Dacres and the Lord Herries, with 'whom the said Leonard was." Whereunto the Duke of 'Norfolk answered, "that he liked not to deal with Leo'nard Dacres in any thing, but he wished that the Earl of Westmoreland might be relieved with part thereof;" which being agreed upon by the Duke, who would have hoped to have conveyed the same by the means of Bannister, then being in the West Borders, and resident upon the Dacres' lands; this Examinate was in the mean time advertised out of Scotland, that all the rebels, except Leonard Dacres, were gone into Flanders, and so that agreement was left unexecuted. Whereupon, afterwards, this Examinate, Rudolphi, and Barker, did agree how the money should be distributed in Flanders, amongst the English rebels; of which distribution the Duke of Norfolk was advertised, and liked well thereof, and advised that the same should be done accordingly, saying, it would well comfort their present necessity.' Wilbraham. You shall now hear, that after the practice of the marriage, it was a general rule between the Scottish Queen and the Duke, that the Bishop of Rosse should never propose anything to the Queen's Council, nor deal in any great matter, but by the advice and direction of the Duke of Norfolk.

Here was read, for the proof thereof, a part of the Examination of the Bishop of Rosse*, taken the 31st October, 1571, as follows:

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He saith, "That at the first communication of marriage between this Examinate's mistress, the Queen of Scots, and the Duke of Norfolk, this Examinate had a 'commandment of the Queen of Scots, that he should never propone any matter sent from her, or any other ' matter of great importance to the Queen's Majesty, or 'to any other, till first he had made the Duke of Norfolk privy thereunto, and had his advice so to do."' Duke. What does this make against me?

*Murdin, p. 36.

Wilbraham. The Bishop followed his commission, and kept up his manner of conference with you continually, as his mistress had desired him. So that the money was distributed by your directions.

Duke. I was never privy to the distribution of that money, nor I never spake with Barker about it. I was in the Tower at that time.

Wilbraham. This was when you were not in the Tower. The Rebels lurked in Flanders awhile, in great necessity, without apparel; and suddenly, with this money, they waxed gay. And these men have confessed that it was distributed by your order and direction.

Duke. None accuse me of this, but three witnesses; one absent, one a foreigner, and the third a traitor.

Wilbraham. If every one that is privy to treason must be refused as a witness, then should no treason be proved; for none can tell it but those that are privy, and all such are guilty.

But now we shall proceed to the second point: that you adhered to, and aided the Scottish lords, the Queen's enemies, and maintainers of her rebels. The rebels, after flying into Scotland, were there received by the Duke of Chastelleroy, and others; and being there, they made inroads into the realm, and burned and wasted England with fire and sword. The Queen's Majesty proclaimed open war against the Scots who assisted the rebels; she appointed my Lord of Sussex her lieutenant, with a strong army to invade them, and to pursue both the rebels and the Scots. My Lord of Sussex afterwards entered Scotland, and made open war upon them; so were they published the Queen's enemies, both by proclamation, which is here ready to be shewed, and by open war itself, the best proclamation of all. These persons, thus known to be the Queen's enemies, were so hotly pursued by the Queen's friends, that the Scottish Queen complained thereof to the Duke of Norfolk, and told him, that if she had no aid from France, or elsewhere, her friends in Scotland must of force be constrained to yield: and herein she prayed the Duke of Norfolk's advice. The Duke made answer, "that she should procure the French Ambassador's letters to her friends in Scotland, to put them in some good hope, so that they might hold

out awhile till aid came." The Scottish Queen accordingly wrote to the French Ambassador, and he wrote six letters to the Lord Herries, and other Lords of Scotland, with fair and comfortable promises. The packet of these letters was sent to the Duke. He caused it to be sent, with a letter to Bannister, to convey it to Lowther, upon the West Borders of Scotland, and that Lowther should convey it over to the Lord Herries. Hickford, the Duke's secretary, delivered this packet, and the other letter, to Henry, the Duke's footman, who carried it to Bannister: and Bannister sent it to Lowther, by Colborn his servant; and to dissemble the cause of his servant's going, and to know some certainty whether it came to Lowther's hand or no, a privy token passed between him and Lowther, about the gathering of the rent of Lord Dacre's lands. Lowther sent over the packet, and returned answer to Bannister, "that he had sent it to the Lord Herries; and told him, according to their privy token, that though it were troublesome, yet he would gather the rents for him."

Here was read the Confession* of Barker and Hickford, dated 14th September, 1751, as follows:

'Barker saith, that in July last past he received a packet of letters, containing, as he supposeth, half a dozen 'letters, of the French Ambassador, of the which he 'told the Duke; and the Duke sent for Hickford, and willed him to write to Bannister, who should convey them to Lowther, and so to the Lord Herries in Scotand, as they were directed.'

'I, the said Robert Hickford, do confess it to be very true, that I was privy to a certain packet that Mr. Barker sent to Mr. Bannister, to be conveyed to Lowther in July last past, as I do remember; and that, as my Lord com'manded me, I wrote to Mr. Bannister the same time in cypher, to this effect, that he should cause Lowther to 'send them into Scotland.'

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Wilbraham. You hear how Barker betrayeth it; you hear, also, how Hickford himself confesseth it; and in what manner, I pray you, do they disclose it? They make no haste to accuse the Duke, but all by leisure,

*Murdin, p. 93.