Page 64 of 162

* See note U, at the end of the volume.

** See note X, at the end of the volume.

*** State Trials, vol. i. p. 113.

It is evident, that this complication of evidence, though every circumstance corroborates the general conclusion, resolves itself finally into the testimony of the two secretaries, who alone were certainly acquainted with their mistress’s concurrence in Babington’s conspiracy, but who knew themselves exposed to all the rigors of imprisonment, torture, and death, if they refused to give any evidence which might be required of them. In the case of an ordinary criminal, this proof, with all its disadvantages, would be esteemed legal, and even satisfactory, if not opposed by some other circumstances which shake the credit of the witnesses: but on the present trial, where the absolute power of the prosecutor concurred with such important interests, and such a violent inclination to have the princess condemned, the testimony of two witnesses, even though men of character, ought to be supported by strong probabilities, in order to remove all suspicion of tyranny and injustice. The proof against Mary, it must be confessed, is not destitute of this advantage; and it is difficult, if not impossible, to account for Babington’s receiving an answer written in her name, and in the cipher concerted between them, without allowing that the matter had been communicated to that princess. Such is the light in which this matter appears, even after time has discovered every thing which could guide our judgment with regard to it: no wonder, therefore, that the queen of Scots, unassisted by counsel, and confounded by so extraordinary a trial, found herself incapable of making a satisfactory defence before the commissioners. Her reply consisted chiefly in her own denial: whatever force may be in that denial was much weakened by her positively affirming, that she never had had any correspondence of any kind with Babington; a fact, however, of which there remains not the least question.[*] 25 She asserted, that as Nau and Curle had taken an oath of secrecy and fidelity to her, their evidence against her ought not to be credited. She confessed, however, that Nau had been in the service of her uncle, the cardinal of Lorraine, and had been recommended to her by the king of France, as a man in whom she might safely confide. She also acknowledged Curle to be a very honest man, but simple and easily imposed on by Nau. If these two men had received any letters, or had written any answers, without her knowledge, the imputation, she said, could never lie on her. And she was the more inclined, she added, to entertain this suspicion against them, because Nau had, in other instances, been guilty of a like temerity, and had ventured to transact business in her name, without communicating the matter to her.[**] 26

* See note Y, at the end of the volume.

** See note Z, at the end cf the volume.

The sole circumstance of her defence which to us may appear to have some force, was her requiring that Nau and Cure should be confronted with her, and her affirming that they never would to her face persist in their evidence. But that demand, however equitable, was not then supported by law in trials of high treason, and was often refused, even in other trials where the crown was prosecutor. The clause contained in an act of the thirteenth of the queen, was a novelty; that the species of treason there enumerated must be proved by two witnesses, confronted with the criminal. But Mary was not tried upon that act; and the ministers and crown lawyers of this reign were always sure to refuse every indulgence beyond what the strict letter of the law, and the settled practice of the courts of justice, required of them. Not to mention, that these secretaries were not probably at Fotheringay Castle during the time of the trial, and could not, upon Mary’s demand, be produced before the commissioners.[*]

* Queen Elizabeth was willing to have allowed Curle and Nau
to be produced in the trial, and writes to that purpose to
Burleigh and Walsingham, in her letter of the seventh of
October, in Forbes’s MS collections. She only says, that she
thinks it needless, though she was willing to agree to it.
The not confronting of the witnesses was not the result of
design, but the practice of the age.

There passed two incidents in this trial which may be worth observing. A letter between Mary and Babington was read, in which mention was made of the earl of Arundel and his brothers: on hearing their names, she broke into a sigh. “Alas,” said she, “what has the noble house of the Howards suffered for my sake!” She affirmed, with regard to the same letter, that it was easy to forge the handwriting and cipher of another; she was afraid that this was too familiar a practice with Walsingham, who, she also heard, had frequently practised both against her life and her son’s. Walsingham, who was one of the commissioners, rose up. He protested that, in his private capacity, he had never acted any thing against the queen of Scots: in his public capacity, he owned, that his concern for his sovereign’s safety had made him very diligent in searching out, by every expedient, all designs against her sacred person or her authority. For attaining that end, he would not only make use of the assistance of Ballard or any other conspirator; he would also reward them for betraying their companions. But if he had tampered in any manner unbefitting his character and office, why did none of the late criminals, either at their trial or execution accuse him of such practices? Mary endeavored to pacify him, by saying that she spoke from information; and she begged him to give thenceforth no more credit to such as slandered her, than she should to such as accused him. The great character, indeed, which Sir Francis Walsingham bears for probity and honor, should remove from him all suspicion of such base arts as forgery and subornation; arts which even the most corrupt ministers, in the most corrupt times, would scruple to employ.

Having finished the trial, the commissioners, adjourned from Fotheringay Castle, and met in the star chamber at London, where, after taking the oaths of Mary’s two secretaries, who voluntarily, without hope or reward, vouched the authenticity of those letters before produced, they pronounced sentence of death upon the queen of Scots, and confirmed it by their seals and subscriptions. The same day, a declaration was published by the commissioners and the judges “that the sentence did nowise derogate from the title and honor of James, king of Scotland; but that he was in the same place, degree, and right, as if the sentence had never been pronounced.”[*]

* Camden, p. 526.

The queen had now brought affairs with Mary to that situation which she had long ardently desired; and had found a plausible reason for executing vengeance on a competitor, whom, from the beginning of her reign, she had ever equally dreaded and hated. But she was restrained from instantly gratifying her resentment, by several important considerations. She foresaw the invidious colors in which this example of uncommon jurisdiction would be represented by the numerous partisans of Mary, and the reproach to which she herself might be exposed with all foreign princes, perhaps with all posterity. The rights of hospitality, of kindred, and of royal majesty, seemed in one signal instance to be all violated; and this sacrifice of generosity to interest, of clemency to revenge, might appear equally unbecoming a sovereign and a woman. Elizabeth, therefore, who was an excellent hypocrite, pretended the utmost reluctance to proceed to the execution of the sentence; affected the most tender sympathy with her prisoner; displayed all her scruples and difficulties; rejected the solicitation of her courtiers and ministers; and affirmed that, were she not moved by the deepest concern for her people’s safety, she would not hesitate a moment in pardoning all the injuries which she herself had received from the queen of Scots.