his request was not complied with. The open examination of witnesses in state prosecutions was not, however, at that time the regular course of proceeding, notwithstanding the gross injustice of a contrary practice; and therefore the refusal to produce the witnesses must not be considered as a wilful denial of justice by the Judges on this trial.

In judging of this case by our modern notions respecting the proper mode of proving criminal charges, must be admitted that there were even greater irregularities in the trial of the Duke of Norfolk than in that of Sir Nicholas Throckmorton. Thus it appears that a letter, purporting to be written by the Duke to the Earl of Murray, was read, without any proof whatever of its genuineness, upon the mere assertion of Counsel, that the Regent had sent a copy of it to the Queen, in his (Murray's) hand-writing. There are also repeated instances of hearsay, even at second hand: the Bishop of Rosse's statement of what Barker or Rudolphi told him that the Duke had said, being frequently used to prove the most material parts of the charge. There is one irregularity in these proceedings so extremely curious that it deserves to be particularly noticed. In enforcing that part of the case which related to the Rudolphi conspiracy, the Solicitor-General informed* the Peers that he had it in charge from the Queen's own mouth to state to them, that a servant of a foreign ambassador in Flanders had made a full disclosure of the plot to the Privy Council; but because it was improper, for reasons of state, to declare the transaction openly, he says that he was ordered by the Queen to desire such of the Peers as were members of the Privy Council to impart it privately to their fellows. A more flagrant violation of the plainest principles of justice than this enforcement of evi* See p. 211.

dence, to be given in the absence of the prisoner, of which he could have no knowledge, and consequently no means or opportunity of answering or explaining, can hardly be conceived.

Upon testimony of such a nature, and obtained by such means as we have above described, it is obvious that no man ought to be convicted of even the most trivial offence. That the Duke of Norfolk, therefore, would not have been condemned upon such evidence at the present day, or under any just and rational system of jurisprudence, will hardly be disputed; but it may be worth while to consider as an historical problem, how far the testimony adduced at the trial, when viewed in combination with facts derived from other sources, establishes the proposition that he was guilty of high treason, with respect to any of the charges contained in the indictment.

The first charge in the indictment was the attempt to marry the Queen of Scots; the material facts upon this charge, excepting the intention to use force against Elizabeth, were not disputed by the Duke at the trial, and may therefore be taken for granted. It was contended by Serjeant Barham, who conducted the first part of the prosecution, and also by the Attorney-General, that the attempt to marry the Scottish Queen was an overt act of high treason, within the Statute of Treasons, in the article of compassing the death of the Queen. The words of the Statute of Treasons, 25 Edward III., applicable to this trial, are as follows: they are given from Mr. Luders's translation, which adheres more literally to the meaning of the original than that printed in the editions of the Statutes: "Whereas there have been divers opinions heretofore what case, when it happeneth, ought to be called treason, and in what case not; the King at the request of the Lords and of the Commons hath made the declaration following, that

is to say; in case where a man doth compass or imagine the death of our Lord the King, the Lady his consort, or of their eldest son and heir; and if a man levy war against our said Lord the King in his realm, or be adherent to the enemies of our Lord the King in the realm, giving to them aid and support in his realm or elsewhere; and thereof be attainted upon due proof of open deed by people of their condition; be it known that in the cases above named there ought to be judgment of treason, for that it extendeth to our Lord the King and his royal Majesty." Before a century had elapsed from the passing of the statute, the meaning of these simple words, which seem hardly capable of two interpretations either by layman or lawyer, had been so distorted by subtle distinctions, and by refined and forced constructions, that, at the time of the trial of the Duke of Norfolk, the evil which the statute was intended to remedy existed to a far greater extent than ever; and it had already become impossible for any man to say "what case, when it happened, ought to be called treason." This trial is indeed as

good an example as could be selected from the earlier cases, of the mode in which constructive treason was made up; and the reader will not refuse the praise of great ingenuity at least to the lawyers of those days, who could so readily make out that the Duke of Norfolk's attempt to marry the Queen of Scots was an overt act—an open manifestation of a secret determination to kill the Queen of England. Let us examine, however, a little in detail how this strange proposition was supported. In order to render the argument in the slightest degree plausible, it was necessary to go back to a grievance committed by Mary more than ten years before; when, upon her marriage with the Dauphin of France, she had assumed to bear the arms of England quartered

with those of France and Scotland without difference. This was heavily complained of by Elizabeth; and long and loud were the remonstrances made on her behalf by Sir Nicholas Throckmorton, who was at that time her Ambassador at Paris. At length a

clause was inserted in the Treaty of Edinburgh, by which the supposed claim was formally renounced; but as Mary always refused to ratify this Treaty, her conduct in so doing was interpreted by the Queen's Counsel, on the trial of the Duke of Norfolk, as a continued pretension to the present possession of the Crown of England adversely to Elizabeth; and it was contended that a design on the part of the Duke, with full knowledge of all these circumstances, to marry a person, so claiming a present title to the English Crown adversely to the reigning sovereign, was an overt act of compassing the death of that sovereign, and high treason within the meaning of the above statute.

It was urged, moreover, that as the Duke had expressed contempt for the Scottish possessions of Mary, and an ill opinion of her personal character, his design to marry her could only be ascribed to an intention to forward her claim to the English Crown. It is obvious, however, that many other motives besides those, the existence of which was negatived on the trial, and such as were of an entirely innocent character, may have influenced his conduct. He may have looked to the improbability of Elizabeth's marriage, and Mary's unquestionable title to the succession after her death; or he may have been persuaded to entertain the scheme by that numerous and powerful party, who promoted the marriage as a means of removing the danger which threatened the Protestant succession, in case of Elizabeth's death without issue. Besides, long since the obnoxious assumption of the arms of England, Eliza

beth had been on terms of peace and amity with Mary; she had been godmother to her child, and had interposed her good offices to reconcile her and her rebellious subjects after the death of Darnley. That the attempt to marry the Queen of Scots under these circumstances, therefore, could not amount to compassing and imagining the death of the sovereign, without the most forced and unnatural construction of the plain words of the Statute of Treasons, must be manifest, not only to every lawyer, but to every man of common sense; that Lord Burleigh's strong and clear understanding had adopted this opinion is evident from his letter to the Queen, above cited*; and though the Counsel for the prosecution stoutly maintained on the trial that the Duke's offence, even upon this state of the facts, was in law high treason, they probably foresaw that the peers would not readily adopt so monstrous a proposition; they therefore added to the charge a design to maintain his purpose of marriage with the Scottish Queen by force; and upon the assumption of this additional fact, it was argued by the Attorney-General, that "to use force against her Majesty in her own realm, can only be done with intent to depose her; for that force she must needs resist, and if she resists it unsuccessfully, then followeth her death and destruction."

Now if the intention of the Duke had been to depose, to constrain, or to imprison the Queen, with a view to effect his ulterior object of marriage with Mary, and if this intention had been demonstrated by some open or overt act, such as levying troops, or collecting arms and ammunition, this reasoning would have been justified by the opinions of Hale, Hawkins, and other learned writers; for it is said that all force used to the person of the King, in its consequence, *See p. 131,