from her to the Queenes most excellent Maiestie allow and giue her assent to the same Neuerthelesse after the making of this acte and her sayde consent giuen therunto the monstrous conspiracie of Babington by her priuie consent and promise of rewarde for the murdering of her Maiesties sacred person and atcheiuing the crowne and diademe in full possession was practised and miraculously discouered Which I neede not heere particularly to deduce since there was a most honorable sentence giuen thereof by the most part and the most auncientest of the nobilitie since their proceedinges were declared to the whole body of the Realme assembled in Parliament of them receiued all allowance since both the houses often sued vnto her Maiesty that according to lawe iustice might be administred and since her highnesse at the great intreatie of her subiects suffered the sentence by Proclamation to be published it plainly appeareth that the intention of the lawe makers was that the lawe should reach vnto the Queene of Scots and to euerie other person whosoeuer being a Competitour of the kingdome Wherefore it is manifest that although this is statute law yet since it was the minde and intent of the makers that this lawe shoulde reache to the Queene of Scots that by offending she is made subiect vnto it Neither is the statute lawe heerein repugnant in substance to the lawe of Nations howbeit there bee some difference in some matter of circumstaunce but the same agreeth with the lawes both ciuill of Nations in substance which generally do inflict the penaltie of death vpon euery one that is a worker of treason Besides if the statute lawes of England wil bind the king himself for any matter within his realme when the intentiō of the makers of the law is such as it is verie plaine and cleere without all controuersie that it doth shall not a statute law bind the queene of Scots especially for mattter perpetrated within the realme And as touching the said statute of the 27. shee could not pretend ignorance for that she had vnderstanding of it nor alledge a mislike therof for that by her voluntarie subscription she had approued it nor except against the seueritie of the law because it is agreeable both to the ciuill law of the Romanes also to the law custome of her owne countrie and therefore it may be said to her Non potest quis improbare quod ipse approbauit a man may not bee contrary to himselfe in disalowing that which himselfe hath allowed Also Patere legem quam ipse tuleris suffer the same lawe which you haue made your selfe Shee meant death to the queene of Englands person let her not therefore mislike if the queene of England doth minister the like measure to her person for as it hath been neere fifteene hundred yeeres agoe trulie written Non est lex aequior vlla Quà m necis artifices arte perire sua No iuster lavv can reason craue Thē seeking death the same to haue Also it is a rule of the ciuill law grounded vpon the law of nature Id debet cuique placere in sua persona quod placuerit in aliena that euerie man ought to like that in his own person which he would haue done in the person of another neither doth the priuiledge of dignity in the person alter the nature and qualitie of the offence in case of treason howsoeuer it doth in other cases as before I haue sundrie wayes confirmed The 4. obiection THE fourth obiection made against the sentence and excution of the Scottish queene is another exception taken against the law of the lande because in the case of treason it punisheth as seuerelie the intent as the deede the minde in conspiring as the hand in executing for thus they reason It is both against the lawe of nations and the law of nature howsoeuer it bee according to the lawe of your lande to put a queene to death for a bare and naked intent an imagined treason be it neuer so haynous when there followeth no hurt For whē her desseines neither did nor could hurt the Queene of England as neuer hauing their intended effect what reason is it to punishe a fancie and feare of treason with so great a punishment as death The Aunswere TO this I make this aunswere that the lawe of England heerein inflicteth none other punishement for treason than the ciuill law and law of nations throughout the whole world commandeth vseth and practiseth The ciuill law hath these wordes Eadem seueritate voluntatem sceleru quae effectum puniri iura voluerunt L. quisquis C. ad L. Iuliam maiestatis the lawes will haue him that conspireth treason to be punished with the same seueritie as him that doth commit it Againe not onlie in the case of high treason but also in omnibus atrocioribus delictis punitur affectus licet nō sequatur effectus in al criminal offences of the highest degree the affect is punished although no effect follow And this lawe hath not only been so obserued generally in all nations aboue twelue hundred yeeres past but there was many hundred yeeres before Christes time in casu perduellionis in the case of treason committed against the state the like law called lex 12 tabularum established 12. Tabularum ff ad L. Iuliam maiestatis which inflicteth death for the will and intent of treason And therefore the said two Emperors Arcadius Honorius in their cōstitution made against treason said not volumus D. L. quisquis ad L. Iuliam sed sic iura voluerunt the lawes were so before their time But to say that there ought in offences of the highest degree no punishmēt to ensue vnles the act were consummate were most against law for two speciall causes The one for that such hope of impunitie would encourage malefactors to practise most daungerous and audacious attempts against kinges and common weales Secondly if they stay to punish till the fact be done the losse will be irrecuperable and the offence as this case is in a competitor though most haynous dispunishable For in this case in question the death of her Maiestie whom God euer preserue being taken away all commissions and magistracies for iudicial places should cease so that this being contriued by a cōpetitor to the kingdome as the Queen of Scots by open and expresse accord hath often declared herselfe the same offence by the accesse or taking vpon her the crowne and dignitie should by lawe be purged and the competitor cleared For king Henrie the sixt after the ouerthrowe giuen him by king Edwarde the fourth was by act of Parliament disabled from his crowne and dignitie And yet afterwardes the saide king in his redemption helde Parliament and in the same the question did growe whether there needed any reuersall of the saide former acte made against the sayde king It was resolued that no reuersall was needfull but ipso facto that the sayd king Henrie the vj. tooke vpon
iustice against her A confirmation by manie reasons gathered out of the Ciuill and Canon lavve of the honorable sentence and execution past against the Scottish Queene BEfore I proceede to the instifying of the sayde sentence and execution I thinke it not amisse here to set downe what the Lawes of England haue beene in these Capitall offences not only from the Conquerors time but from the beginning of any Empire or principallity within this Realme searching what hath beene written herein I finde that the very imagination and intent of treason being in the highest degree without ouert facte hath in the times of all Kinges and in all persons beene losse of life and member losse of goods and lands and perpetuall corruption of bloud which Lawe agreeth verie well seemeth to haue commencement and beginning from a Ciuill constitution made by the famous Emperors Arcadius and Honorius in the yeare of our Lorde God 3 8 9. The effect of which Lawe for the matter in question foloweth L. quisquis C. ad L Iulian matestatis Quisquis de nece principis eorumque qui consilijs principis intersunt c. cogitauerit eadem enim seueritate voluntatem sceleris qua effectum puniri iura voluerunt ipse quidem vt maiestatis reus gladio feriatur bonis eius omnibus fisco nostro addictis Whosoeuer shall imagine or intend the death of the king or any of his counsell for the Lawes would with the same seueritie haue a man punished aswel for his wil in intending as for his fact in committing treason hee shal be beheaded as guiltie of high treason and his goods forfaited to our Exchequer Note here that the saide wordes bee generall and suffer no exception L. 4. C. ad L. Iulian maiestatis which also is in the verie next Constitution precedent by three other Emperors Valentinian Valens and Gratian confirmed where they vse these wordes In sola causa laesae maiestatis omnibus aequa conditio est nulla habita militie generis vel dignitatis defensione In the onelie cause of treason all persons are of egal condition debarred from all defence and priuiledge of militarie vertue birth or dignitie And as the wordes of the law are generall including all persons whosoeuer so is the selfesame law generall because it receiueth allowance in all countries and in Scotland it selfe where the ciuill lawe is exercised and in that regard may be called Ius Gentium the law of Nations Quia eo iure omnes gentes vtuntur because in all Nations the same law and penaltie for treason is vsed wherein the Scottish Queene coulde not pretend ignorance seeing it is the lawe of her owne countrie and the law of all the worlde and seeing she confessed her presciencie knowledge thereof as also of the statute made in the same effect the seuen and twentieth yeere of her Maiesties raigne discouering in her letters to Babington that if her conspiracies were knowne to her Maiestie it were sufficient for that Queene to inclose her in some hole foorth of which she should not escape if so bee shee did not vse her worse as though shee had said the hainousnesse of her desert and penaltie of the lawe did inflict a greater punishment on her than being kept close prisoner which shee further confesseth in plain words in her letter to Mendoza the Spanish Ambassador Let this be kept secret forasmuch as if it come to bee reuealed it shoulde bee in France the losse of my Dower in Scotland a cleare breach with my some and in this countrie my totall ruine and destruction And the said statute of the saide xxvij yeere of her Maiesties raigne doth not alter the substance of the offence in treason or make it more greeuous or preiudiciall than it was before but for as much as her Maiesties life whome Almightie God preserue to the end of all time was sought by many wicked complots of desperate miscreants to bee taken away and the publike peace disturbed the bodie of the whole Realme to preuent that mischiefe that this might serue as an other warning to stay their furie enacted and set downe a more honourable proceeding against all such violent Competitors of the kingdome than there was before therin adding rather forme than substance that if anie such villanies were attempted it might both in the matter and maner haue the more honourable proceeding Seeing than the Scottish Queene is both by generall wordes and also by especiall demonstration within the compasse of the lawe it remayneth to see what can be sayde for her exemption from the sayde lawe I heare that principally alleaged for an excuse that she was an absolute Queene and therefore in her person not to be impeached as though it were to bee iustified by any lawe in the worlde for a Queene to contriue the death of an other Queene and that which is most treacherous in her owne kingdome Or that a King or Queene comming foorth of her owne Realme to the kingdome and dominion of an other King or Queene may there doe what they list without controlement vnder colour of their kingly prerogatiue And although I should graunt that she was an absolute Queene and in respect thereof had diuers priuiledges incident vnto her person yet in this case all priuiledges that goe to and folowe the person In case of treason no priuiledge will serue are excluded Quia in causa laesae maiestatis saith Baldus priuilegiatus non potest allegare priuilegium A man priuiledged in his person in case of treason cannot alledge his priuiledge And this is a most general lawe and all persons whosoeuer are subiect to the same L. Q. in Prouincia vbi de criminine agi oportet that in what place they haue committed any crime ther according to the law of the place without regard of any priuiledge they ought to bee adiudged Et hoc ius perpetuum est L. edita de edendo C. 1. Inst de satisdat tutor Parag. 1. saith the Text that is this law is generall for so this word perpetuū is in the ciuill law in sundrie places vsed and in this verie place it it is so by the learned expoūded Neither can a king in in another kingdome challenge any such prerogatiue vnto him that for an offence giuen in the highest degree he may not ther be punished For euerie king out of his own kingdome is to be accounted of Lapus de castillo allegat 92. but as a priuate person for that he hath no longer merum imperium that is supreame and absolute gouernment but doth only reteine honoris titulos dignitatis the title of honor and dignitie within the territorie of an other king So that ther where he hath offended per omnia distringitur etiam quoad personam he may bee punished in all that he hath that in his person zabarella e pastoral de re iudicata D. D. c fi de sore competent for ratione delicti-sortitur
him the royall dignity to be king whether it were de iure or de facto that all the fame was voyde The like came in question in the first yeare of king Henrie the vij at the first Parliament by him holden and receiued the same resolution For the place doth so dignifie the person that all steine of former actes is cleane washed awaye and so the Queene of Scottes if shee might haue brought her practises to execution ment as these pleaders or rather plodders about delictum consummatū mean to haue escaped vnpunished Seeing than the lawe of England in case of treason is no other than Lex per omnes gentes diffusa the lawe spredde abroade through out all Nations by the which generally all the Nations of the worlde are gouerned kinges obeyed offences punished I thinke it appeareth to anie indifferent Reader vnto howe broken a staffe they leane that cite the lawe of Nations against vs. And whereas they adde farder that the lawe of Nature maketh for the Scottish Queene in this behalfe I take that obiection farther out of square than the other Of this lawe Tullie writeth very grauely in his booke of common wealth in this wise Cicero lib. 3. de republica Est verò lex recta ratio naturae congruens diffusa in omnes constans sempiterna quae vocet ad officium iubendo vetando à fraude deterreat There is a lawe which is reason it selfe agreeable to Nature imprinted in the hearts of all alwayes one and the same and wherof there is no ende which putteth euerie man in minde to doe his dutie by commaunding and withholdeth euerie man from doing wrong by forbidding Nowe is this Recta ratio to practise a Princesse death Rectaratio for a kingdome to thirst after the bloud of an innocent If this be no reason but a Counsell reasonlesse then what is more agreeable to reason than this that the Scottish Queene should haue that done to her which shee meant to haue done to our Soueraigne And what is more disagreeable to reason than that the Prince should not punish the intent of a Traitour vntill hee had murdered the prince and brought his wicked purpose to effect Is there any thing more absurde and vnconsonant to reason than for a kinge still to spare the Conspirator till the Conspirator hath made away the king Neither is this naturae congruens Naturae congruens agreeable to nature for a Prince to incite to counsell to promise a reward vnto subiects to kill their owne liege Ladie and Soueraigne For Florentinus saith Florētinus L. vt vini de instit iure ff that cùm natura cognationem quandam inter homines constituerit hominem homini insidiari nefas est seeing nature hath conioyned men in a certaine kindred it is nefarious for one man to destroy another And as this is vnnaturall and monstrous for a man to compasse the death of his brother so this is contrary and repugnant to nature for a man by all possible meanes not to defende himselfe For as Tully saith Cicero pro Milone Est haec non scripta sed nata lex quam non didicimus accepimus degimus verū ex natura ipsa arripuimus hausimus expressimus ad quā nō docti sed facti nō instituti sed imbuti sumus vt si vita nostra in aliquas insidias si in vim atque in tela aut latronū aut inimicorū incidisset omnis honestae ratio esset expediendae salutis There is a law saith he not written for vs but borne with vs which wee haue not learned receiued or read of other but which wee haue taken drawen and wrested from nature herselfe vnto which wee are not taught by other but borne by nature not instructed but naturally inclined that if our life shall fall into anie danger violence or weapons of theeues or enemies in that case euerie meanes to saue and succour our selues is both honest and commendable Silent enim leges inter arma nec se expectari iubent cùm ei qui expectare velit iniusta poena luendae sit quà m iusta repetenda For the lawes are silent among princes weapons neither do command that they should be regarded when he that hath regard vnto them must abide some vniust punishment before that any good meanes by them can be had to punishe the offendor And not onelie this to defend himself is according to nature but this is also to cut off euils in the first spring least by sufferance they grow so strong that hereafter when men would they cannot remedie them Further is added by Tullie Diffusa in omnes Diffusa in omnes that it is generallie receiued of all nations Constans that is constant Constans alwaies one and the same not variable either in respect of person place or time but to all persons and in all places and times it is one the same and like it selfe Sempiternall Sempi terna Quae vocet ad officiu m iubendo veiando à fraude deterreat which hath been from the beginning and shal continue the same to all succeeding ages that shall come hereafter whose propertie is inwardly to speake to a mans heart shewing what hee should followe and what he should forsake Now had the Scottish queene this warrant frō nature and did nature teach her to kill her Protector Or if her nature did so instruct her is this the conscience of all other and are these the defires of good mens heartes hath this been the practise of natures lawe which hath been from euerlasting and is alway to continue Nay since the lawe of Nature is imprinted in the hart of man and there sheweth what he should will or what he should intende whosoeuer doth not so will and so intend to doe as this law commaundeth he is not to be accounted an obseruer but a breaker of the lawe And therefore for them to appeale to the lawe of Nature for excuse of their euill purpose or dooing is eyther to make Nature repugnant to her selfe or to giue sentence against them for their euill intente Wherefore as these properties of the Lawe of Nature nothing make for the Scottish Queen but are wholely abhorrent from her endeuours for who dare say that such her complots are approueable by nature so they are a great warrant to her Maiestie when there is no meanes left to saue both than by the others death to prouide for the safetie of her owne person and her Realme For this Nature teacheth and the conscience within better than a thousande witnesses doeth warrant this hath beene the guise of all Nations other Princes haue doone it before and they that doe come after will doe the same And as the will that willeth treason is therfore culpable because it so willeth so is it likewise punishable if it bee knowne But in this case of the Scottish Queene there was not onely treason in her will and in her secrete
the whole realme were no mercy at al but a pitilesse crueltie For as S. Austine saith Sicut est misericordia puniens ita est crudelitas parcens as there is mercie in punishing Augustinus ad Marcellum so there is crueltie in sparing which by many presidents of sundry princes may be showen For Salomon vnto whome for wisedome no Prince was euer comparable when he considered what was intended by his brother Adonia who yet thirsted and longed for his crowne making a conscience to endaunger the life of his subiectes the which assuredly had followed if either Adonia 1. Regum 2. or any for him had taken armes without any farder processe hee commaunded him to be taken and slaine So did the vertuous and most mercifull EmpeÌ„rour Constantine Eusebius Mexia alii vpon the like feare of a newe insurrection and destruction of his people take away the life of the Emperour Liâ—â—nius So did king Henrie the 5. after his glorious victorie ouer the French at Egincourt Grafton in his Cronicles on the raigne of H. 5. shewe great clemencie vnto the persons that were taken but when his tentes were spoyled and he iustly feared a newe assault then contrarie to his accustomed pitie he commaunded euerie man vpon paine of his life to kill his prisoner for then to haue spared them beginning a seconde fight might haue turned to the destruction of him his whole armie And therefore least a prince might seeme to honour one aboue the safetie of his people and to leese the heartes of his loyall subiectes by not hauing care of them and their posteritie least the massacring of them be reputed his fault and God require their bloud at his hand least by his conniuencie he should embolden the hearts of the wicked and cause his subiectes to take part with the enemie hee may well conclude as in the like case did Cicero Natura me clementem sed patria seuerum fecit Tullie contra Catelinam Nature made me pitifull but the loue of my countrey hath made me cruell Pereat Absolon viuat Israel The Conclusion WHerefore let all the world witnesse and the consciences of good men which without all partiall affection in the singlenes of their hearts follow fauour a truth what the Prince and people of England for the glory of God and furtherance of his truth for the safegard of her Maiestie and preseruation of their estate either could or should haue done rather than this by the death of one troublesome and treason-working person to haue redeemed the quiet and safetie of themselues For since shee hath taken on her the armes and title of the crowne of England and refused to repeale her doings being thereunto sollicited since she hath been the ruin of many worshipfull houses and cause of the destruction of some of the Nobilitie Since she incited the rebels of the North to leauie open warre against her Maiestie and releeued them being fled by her friends in Scotland afterward by the Pope who through her procurement sent to their reliefe in Flaunders 12000. crownes Nay since not coÌ„tent with al this she hath laboured by her letters and ministers sundry forreine princes to inuade this realme the pope Spanish king with sundry coÌ„bined coÌ„federed haue a long time intended in part haue practised and are now in some readinesse to performe the same Since her feed seruaunt Morgan practised with Parrie to murder our Soueraigne shee after shee knew it yet fauoured maintained him still Since by her priuitie consent and direction Babington with his companie woulde haue killed her Maiestie she promised to reward their doings in them or if they miscaried in their posteritie Let kings princes all nations of the earth witnes whether euer so many so moÌ„strous so horrible treasons were committed by a prince a woman and that against the Lords annointed in her owne realme and if they were yet that euer they escaped vnpunished And heere although so many impieties do call for vengeance and commaunde by Gods lawe euery Magistrate to iustice so high a trespasser yet see vpon pitie rather than pollicie hoping for amendment rather than looking for a newe conspiracie not harkening to the manifold requestes of her humble loyall and most louing subiectes her maiestie continued her a troublesome Ionas in the shippe of Englande still yet notwithstanding after since the gracelesse mindes of malecontented subiects could not so be satisfied nor her Maiesties great clemency could worke in them a conscience of their dutie but like nettles the gentler they were handled the more they stinged Since after her condempnation published the Scottish Queenes fauorits yet againe and againe practised the death of her Maiestie Since the Pope for her sake hath cursed our soueraine and his seedes men teach that the Queene is no Queene if the Pope depose her Since they haue encouraged her euill minded subiectes to moue rebellion like vipers brood to gnaw out the wombe of our common mother Since her fauourites concluded at home that which was consulted abroad is of late confessed by them to inuade our Realmes ouerrun the lande spoyle the Cities massacre the subiectes destroy her Maiestie and together with religion to make a change of the gouernment that is now amongst vs nay to subiect vs all our goods lands liberties children posteritie to the slauerie and tyranny of the Spanish and forraine power Since the whole Realme assembled in ParliameÌ„t made their many and humble petitions vnto her Maiestie as specially interressed in the matter being the bodie of the same common wealth wherof her Maiestie is the head by taking away one to deliuer them all from their present feares future daungers Sithens her Maiestie was moued by remembrance of her oth than solemnely taken wheÌ„ she was inuested in her crown to distribute iustice equally to all and to defende her Realme people crowne and dignitie from the pestilent vnderminers subuerters of the same sithens the matter grew so daungerous came to that extremitie that either her Maiesty must iustice sentence the Scottish Queene or must hazarde the losse of her life the disturbance of the common peace the conquest of her countrey the losse of the loue heartes of her subiectes without which no Prince can well gouerne or kingdome stande Sithens the like sentence and execution of life and death as the Scottish Queene hath receiued is testified confirmed and warranted by the testimonies reasons examples of so many Emperours Kinges and Popes Since no lawe will saue so high a trespasser but the law of Nations of Nature and of euery kingdome and countrey would inflict death on so great offenders Sithens the like sentence and execution haue been practised and put in vre by godly and Christian Princes and that vpon consultation disputation and resolution of the cause by learned men of the lawe Sithence the statute lawe of euerie kingdome where the intent