spond with their declarations so far as they go. The Duke was their master, they his servants, such as were to gain by his prosperity, and be undone by his ruin; would they untruly accuse him, who was the stay of their preferment? Therefore, though they be traitors, and otherwise without credit, yet against the Duke of Norfolk they are well to be believed.

Now on the other side, consider the Duke's own credit, which he hath by his own doings impaired and made inferior to these witnesses of lower degree; you have heard of his oath especially taken for the Commission at York, to deal truly and sincerely; he kept it not, but dealt as if an oath were of no great weight with him. His oath of a Privy Councillor he hath broken, both in disclosing secrets, and in giving advice to a foreign Prince, and a competitor of the Queen's crown, against the Queen his sovereign lady. Now may it not be that these men of mean degree and value, against whom it is not alleged that they have been at any time perjured, may be produced and credited against him that hath so little esteemed his oath? And besides this, he submitted himself to the Queen, he subscribed his submission, and sealed it; he added solemn promises upon his faith and allegiance, not to proceed in the marriage between the Scottish Queen and himself: but he broke them all: therefore it is not for my Lord of Norfolk to stand so much upon the discrediting of the witnesses, and advancing of his own credit, in which he hath been so deficient. Now I will go to the proof.

Duke. I shall hardly make much impression on your Lordships, after so smooth a tale as Mr Attorney of the Wards has told. Yet one thing comforteth me, that your Lordships will weigh and consider well what he says. If they had not dealt untruly with me, I would not have objected to the witnesses; and, as it is, I chiefly challenge Barker, in whom you may see what fear will do; it is well known that Barker is a man of no courage; and fear hath done much in him. The Bishop of Rosse is also a fearful man. Besides, Bracton saith, that witnesses must be freemen, legales, lawful men, and not traitors or outlaws. But the Bishop of Rosse can be no lawful witness, for he is a

foreigner, a Scot; and as to the others, I object to them that they are traitors, having confessed treason, and so are not to be received as witnesses.

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 harken 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:

'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 Westmoreland, 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 might not intercept it, who then lay at the West Borders; 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 † Ibid., p. 49.

* Murdin, p. 125.

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 Leonard 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:

"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 showed, 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, 19*

VOL. XVI