the strictest principles of our criminal law; for all the best authorities on this subject declare, that acts of levying war and adherence to enemies may be overt acts of compassing the death of the King within the Statute of Treasons, as well as distinct acts of treason in themselves. And it can hardly admit of doubt, that if the facts contained in the Examinations of the Bishop of Rosse, Barker, and Bannister, respecting the Duke's connexion with the conspiracy; his secret dealing with Rudolphi, the Pope's agent; his privity to the letters sent to the Pope (who was, technically speaking, the only enemy who was party to the conspiracy, the King of Spain and the Queen of Scotland being at peace with Elizabeth); and his agreement to levy forces to co-operate with the Duke of Alva against the Queen of England, were fully proved either by the testimony of other persons or his own admissions, the Duke of Norfolk was properly convicted of high treason upon this part of the charge.

We have already remarked in general upon the unsatisfactory nature of the evidence produced at the trial; and for a more particular illustration of its injustice we refer those who may be inclined to pursue the subject to the Examinations themselves, as published at length in Murdin's State Papers; from these it will appear that many of the most material facts against the Duke were in the first instance strenuously denied by the witnesses, and only drawn from them by repeated ensnaring interrogatories after torture had been applied or threatened; that the proof of many others rested upon vague hearsay, loose reports, or the mere opinion or conjecture of the parties examined; and that instead of laying the mass of depositions before the Peers, in order that they might judge of them fairly as a whole, those parts which directly sup

ported the charge against the Duke were skilfully and warily selected to be read on the trial, and the contradictions, equivocations, and prevarications, as well as the tortures and the threats, were carefully kept out of sight.

A critical examination of the voluminous documents still in existence, relating to the Rudolphi conspiracy, would necessarily lead us too much into detail; but we think that the result of such an examination would be a confirmation of the suspicion raised by the perusal of the trial, that, though the Duke was probably a tool in the hands of persons more artful than himself, he fully participated in the scheme. His letters and examinations evince much disingenuousness and prevarication; and on the trial he admits so much of the evidence of Hickford and Bannister, and confesses his privity to so many facts relating to the conspiracy, that it is difficult to conceive that he could have been ignorant of the real object of Rudolphi's mission. If he was privy to it, in its full extent, he was guilty of misprision of treason at the least, and probably of high treason.

Upon the other charges contained in the indictment, it is unnecessary to make many observations. It was no part of the formal charge, nor was it urged by the Queen's Counsel on the trial, that the Duke of Norfolk was actively concerned in the rebellion in the North with the Earls of Northumberland and Westmoreland indeed, not only was the Duke, at the time of their rising, a prisoner in the Tower, but there is positive evidence to show that on receiving an intimation of their design, he strongly advised them not to take up arms. But the charge in the indictment was that the northern Lords, after their overthrow, having fled into Flanders, received money and assistance from the Duke. This, it was contended, was an adherence to the Queen's enemies by

giving them aid and comfort; and therefore treason within the words of the Statute of Treasons. It is well known that upon the suppression of that disastrous insurrection, several of the noblemen and gentlemen connected with it fled first into Scotland, and, finding no safe asylum in that country, passed over into Flanders, where they were reduced to the greatest penury and distress. The Pope had sent a sum of 12,000 crowns to be distributed amongst these exiles; and all that appeared on the trial to implicate the Duke of Norfolk in this transaction was, that on being informed that this money had been sent by the Pope, he expressed a wish that the Earl of Westmoreland should be relieved with some of it; and that afterwards, when told by Rosse that an arrangement had been made to distribute the money monthly in Flanders amongst the rebels, he liked well thereof, and advised that the same should be done accordingly, saying it would well comfort their present necessity. '* There was

no proof or even suggestion that the money was sent by the Pope to support any treasonable design; and if the Duke of Norfolk, under these circumstances, approved of and promoted the relief of these unfortunate persons, one of whom, the Countess of Westmoreland, was his own sister, his conduct could not in law amount to treason, and in morality must be attributed to more natural and better motives than a criminal adherence to them as rebels against the Queen. But even if he had sent money, and his motives had been such as were attributed to him, still the relief of a 'rebel fled out of the kingdom is not treason; for the statute, is taken strictly, and a rebel is not an enemy; an enemy being always the subject of some foreign Prince, and one who owes no allegiance to the Crown of England.'†

* See p. 320. + Blackstone's Com. vol. iv, p. 83.

The charge of adhering to the Queen's enemies in Scotland was not better supported, either in law or fact, than the last. This charge was founded upon the sending of the money by the French Ambassador, through the Duke's agency, to Lord Herries. The persons who were denominated the Queen's enemies in Scotland were the Duke of Chatelherault, Lord Herries, and others, who had received and succoured the Northern rebels, and had refused to deliver them to Elizabeth. These persons, upon the murder of the Regent Murray, had invaded the English borders in hostile array; and by way of retaliation, and in order to punish those who had given an asylum to her rebels, the Earl of Sussex was ordered to cross the borders, and lay waste the Scottish territory. This order was executed with a degree of severity and even ferocity which might well be compared to the most savage exploits of border warfare in earlier times. * But these transactions took place in May, 1570; and more than twelve months before this money was sent by the French Ambassador, Elizabeth had recalled her army, and all open hostility with England had entirely ceased. No doubt a violent animosity still prevailed between the two factions in Scotland, namely, those who contended for the restoration of Mary, and those who supported the Regency, and who were respectively called the Queen's Lords and the King's Lords : with the latter of these factions Elizabeth had chosen to identify herself; but her conduct in so doing could not, in contemplation of law, render the former her enemies.

* See Lodge's Illustrations.

VOL. XVI.

21*

INTRODUCTION TO THE TRIAL OF PARRY.

THERE is nothing of sufficient interest in the proceedings themselves to entitle this trial to a place in this selection; the case of Parry formed, however, an important feature in the history of Elizabeth's reign, having been much used at the time, and being also referred to by late writers as a justification of the severe laws then passed against Roman Catholics.

The enactments against the Papists during the reign of Elizabeth were no doubt extremely severe : they were not laws of a merely negative and restrictive character, by which persons professing the Popish religion were excluded from offices of trust in church and state; but they inflicted the severest penalties upon them, and amounted, in effect, to a total interdiction of the exercise of the rights of the Roman Catholic Church in England. The justice and policy of those laws will probably find few advocates at the present day; and even at the time they were passed, they appear to have been discouraged by some of the most enlightened statesmen. 'I cannot like,' says Sir Thomas Smith in a letter * to Cecil in 1563, that our House (the House of Commons) is still so extreme in making more penal laws; and in my mind specially, it is not that that can advance religion.'

It has been contended, however, that these rigorous measures were fully justified by the circumstances of the times; and Lord Burleigh, who wrote or caused to be written a book in their defence, entitled, 'The Execution of Justice,' laboured to show that they did not originate in a design on the part of the Protestants

*Forbes's Full View, &c. vol. ii, p. 352.