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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 offenee, 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.
may tend to his death, and is a strong presumption of something worse intended than the present force, by such as have so far thrown off their bounden duty to their sovereign ; and an old observation of Machiavelli is cited in support of this doctrine, that there is generally but a short interval between the prisons and the graves of princes.'* Still it is apparent, from the very terms of this proposition, that such a case as it supposes would be a constructive treason, and not directly within the words of the statute.
The only proof given upon the trial of any force being intended by the Duke, consisted of two circumstances ; first a vague suggestion made to the Duke by a servant of the Earl of Arundel, respecting the taking the Tower, which was at once repudiated by the Duke, and could not, therefore, be in any way considered as manifesting an intention on his part to use force against the Queen, but quite the reverse ; and secondly, a written statement † by the Bishop of Rosse, of two conversations between the Duke and himself. The substance of the first conversation was as follows : - The Bishop inquired of the Duke, whether, if Elizabeth should not give her consent to the marriage with the Queen of Scots, he had provided such friendship, as by their forces and assistance he might perform it, and stand to it ?' To this the Duke answered, that Elizabeth could not but in the end approve of it, though she might at first oppose it, as the most of her Council, and the whole nobility (with a few exceptions), were favourable to the scheme, 'for he had assayed all their minds.' This the Bishop stated expressly was merely an impression produced on his mind by several conversations with the Duke upon the same subject, and not as a relation of one particular conversation of which he had a distinct recollection.
* Blackstone's Com. vol. iv, 79.
+ See p. 168.
No reliance can therefore be fairly placed upon the expressions represented to have been used by either party ; and, taken with this observation, there is nothing in this first conversation which manifests, in the slightest degree, even an intention on the part of the Duke to use any other force, than that to be produced on the mind of the Queen by the influence of her Council, and the opinions of the nobility. The second conversation took place after the Duke's return from Titchfield, where the Queen had charged him
upon his allegiance to abandon all thoughts of the marriage. He then told the Bishop of Rosse that he should depart into Norfolk, by the advice of the Earls of Arundel and Pembroke, who would do the like ; and there that he should advise with his friends what was best to be done for the advancement of the cause.? On the Bishop's suggesting that the Queen would bring him back from Norfolk by force, he said, that 'no nobleman in England would accept that charge at her command ; that if the Queen once began the quarrel with him, he should have friends enough to assist him ; that the Scottish Queen's person should then be safely enough provided for, and he would do what he could to have her in his hands; that the Earls of Arundel, Pembroke, Northumberland, Westmoreland, and other lords, would do as he did.' The Bishop further stated, that the Duke's servant, Liggons, told him that the Duke was resolved to go forward with the matter by force,' and that there was continual message sent betwixt the Scottish Queen and the Duke, and betwixt them and the Lords in the North, whereupon did grow their attempt and rebellion, as he (the Bishop) did judge.' It must not be
forgotten, that this statement was not made by the Bishop as a witness on the trial, or under the sanction of an oath, but was procured
from him under the threat of torture, and a promise that what he said should not be used in evidence against any man. We must remember, also, that evidence of words spoken must be received with great caution, 'for they may be spoken in heat, without any intention, or be mistaken, perverted, or mis-remembered by the hearers; their meaning depends always upon their connexion with other words: and things, and they may signify differently, even according to the tone of voice with which they are delivered.'* But supposing the Bishop's statement. to be literally true, it cannot be considered to establish the fact, upon the assumption of which the reasoning of the Counsel for the prosecution is grounded, namely, that the Duke had begun to use force against the Queen ; his language merely amounts to a foolish and vain-glorious threat, uttered in a moment of irritation, and cannot fairly be considered as the expression of a settled determination to proceed by force to the attainment of his object. At all events, interpreting the words in their strongest possible sense against the Duke, they are only expressive of an intention to use force, and do not constitute an admission of any act of force really used; they do not, therefore, establish any overt act done, any step actually taken by the Duke, in pursuance of the general design imputed to him of compassing and imagining the death of the sovereign. An overt act was as necessary to establish this species of treason in the time of Elizabeth as it is at the present day ; for the statute of Edward III expressly requires that the accused be thereof attainted upon due proof of open deed? (overt fait). Indeed, if the statute had not made an express provision on this subject, it is obvious that in reason and common sense such proof would have been requisite, for as
* Blackstone's Comm. vol. iv, p. 80.
compassing and imagining are acts of the mind, they cannot possibly be the subjects of judicial cognizance until they are demonstrated by some overt act. As to the assertion of Liggons, that the Duke was determined to proceed by force, and the Bishop's opinion, that the northern rebellion arose out of the correspondence between the Duke, the Scottish Queen, and the Lords in the North, it can hardly be necessary to observe, that such testimony does not partake in the slightest degree of the nature of legitimate evidence ; it is mere hearsay and opinion, and ought not to weigh one feather in the scale in estimating the value of the facts, by which the guilt of the Duke of Norfolk was attempted to be established,
For these reasons, we think that the facts, as they existed previously to the formation of the Rudolphi conspiracy, could not legally support a charge of treason against the Duke of Norfolk ; that Lord Burleigh thought so, is quite manisest ; and it was indeed so palpably the case, even upon the notions of treason then prevalent, that this part of the charge was probably persevered in by the Queen's Counsel at the personal suggestion or command of Elizabeth, with whom the intrigue with the Scottish Queen was always the subject of great jealousy and exasperation, and who considered the Duke's dissimulation and falsehood towards herself as the head and front' of his offence.
But the substantial charge against the Duke was his connexion with the Rudolphi conspiracy; and this was enforced by the Attorney-General, not only as constituting in itself a levying of war, and an adherence to the Queen's enemies, within the Statute of Treasons, but as a series of overt acts of treason in the article of_compassing and imagining the Queen's death. This doctrine was justifiable upon