The lawyers of the crown then opened the charge against the queen of Scots. They proved, by intercepted letters, that she had allowed Cardinal Allen and others to treat her as queen of England; and that she had kept a correspondence with Lord Paget and Charles Paget, in view of engaging the Spaniards to invade the kingdom. Mary seemed not anxious to clear herself from either of these imputations. She only said that she could not hinder others from using what style they pleased in writing to her; and that she might lawfully try every expedient for the recovery of her liberty.
An intercepted letter of hers to Mendoza was next produced; in which she promised to transfer to Philip her right to the kingdom of England, if her son should refuse to be converted to the Catholic faith; an event, she there said, of which there was no expectation while he remained in the hands of his Scottish subjects.[*]
* State Trials, vol. i. p 138.
Even this part of the charge she took no pains to deny, or rather she seemed to acknowledge it. She said that she had no kingdoms to dispose of; yet was it lawful for her to give at her pleasure what was her own, and she was not accountable to any for her actions. She added, that she had formerly rejected that proposal from Spain; but now, since all her hopes in England were gone, she was fully determined not to refuse foreign assistance. There was also produced evidence to prove, that Allen and Parsons were at that very time negotiating, by her orders, at Rome, the conditions of transferring her English crown to the king of Spain, and of disinheriting her heretical son.[*] [21]
It is remarkable, that Mary’s prejudices against her son were at this time carried so far, that she had even entered into a conspiracy against him, had appointed Lord Claud Hamilton regent of Scotland, and had instigated her adherents to seize James’s person, and deliver him into the hands of the pope, or the king of Spain; whence he was never to be delivered, but on condition of his becoming Catholic.[**] [24]
The only part of the charge which Mary positively denied, was her concurrence in the design of assassinating Elizabeth. This article, indeed, was the most heavy, and the only one that could fully justify the queen in proceeding to extremities against her. In order to prove the accusation, there were produced the following evidence: copies taken in Secretary Walsingham’s office of the intercepted letters between her and Babington, in which her approbation of the murder was clearly expressed; the evidence of her two secretaries, Nau and Curle, who had confessed, without being put to any torture, both that she received these letters from Babington, and that they had written the answers by her order; the confession of Babington, that he had written the letters and received the answers,[***] and the confession of Ballard and Savage, that Babington had showed them these letters of Mary, written in the cipher which had been settled between them.
* 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.[*]