Constitutional History of England by Henry Hallam - HTML preview

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would be in better hope, and the papists' daily expectation

vanquished."[215] And Walsingham, during his embassy at Paris, desires that "the queen should see how much they (the papists) built

upon the possibility of that dangerous woman's coming to the crown

of England, whose life was a step to her majesty's death;" adding that

"she was bound for her own safety and that of her subjects, to add to

God's providence her own policy, so far as might stand with

justice."[216]

Catholics more rigorously treated. —We cannot wonder to read that

these new statutes increased the dissatisfaction of the Roman

catholics, who perceived a systematic determination to extirpate their

religion. Governments ought always to remember that the intimidation

of a few disaffected persons is dearly bought by alienating any large

portion of the community.[217] Many retired to foreign countries, and receiving for their maintenance pensions from the court of Spain,

became unhappy instruments of its ambitious enterprises. Those who

remained at home could hardly think their oppression much mitigated

by the precarious indulgences which Elizabeth's caprice, or rather the

fluctuation of different parties in her councils, sometimes extended to

them. The queen indeed, so far as we can penetrate her

dissimulation, seems to have been really averse to extreme rigour

against her catholic subjects: and her greatest minister, as we shall

more fully see afterwards, was at this time in the same sentiments.

But such of her advisers as leaned towards the puritan faction, and

too many of the Anglican clergy, whether puritan or not, thought no

measure of charity or compassion should be extended to them. With

the divines they were idolaters; with the council they were a

dangerous and disaffected party; with the judges they were refractory

transgressors of statutes; on every side they were obnoxious and

oppressed. A few aged men having been set at liberty, Sampson, the

famous puritan, himself a sufferer for conscience sake, wrote a letter

of remonstrance to Lord Burleigh. He urged in this that they should be

compelled

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to hear sermons, though he would not at first oblige them to

communicate.[218] A bill having been introduced in the session of 1571

imposing a penalty for not receiving the communion, it was objected

that consciences ought not to be forced. But Mr. Strickland entirely

denied this principle, and quoted authorities against it.[219] Even Parker, by no means tainted with puritan bigotry, and who had been

reckoned moderate in his proceedings towards catholics, complained

of what he called "a Machiavel government;" that is, of the queen's

lenity in not absolutely rooting them out.[220]

This indulgence, however, shown by Elizabeth, the topic of reproach

in those times, and sometimes of boast in our own, never extended to

any positive toleration, nor even to any general connivance at the

Romish worship in its most private exercise. She published a

declaration in 1570, that she did not intend to sift men's consciences,

provided they observed her laws by coming to church; which, as she

well knew, the greater part deemed inconsistent with their integrity.[221]

Nor did the government always abstain from an inquisition into men's

private thoughts. The inns of court were more than once purified of

popery by examining their members on articles of faith. Gentlemen of

good families in the country were harassed in the same manner.[222]

One Sir Richard Shelley, who had long acted as a sort of spy for

Cecil on the continent, and

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given much useful information, requested only leave to enjoy his

religion without hindrance; but the queen did not accede to this

without much reluctance and delay.[223] She had indeed assigned no other ostensible pretext for breaking off her own treaty of marriage

with the Archduke Charles, and subsequently with the Dukes of Anjou

and Alençon, than her determination not to suffer the mass to be

celebrated even in her husband's private chapel. It is worthy to be

repeatedly inculcated on the reader, since so false a colour has been

often employed to disguise the ecclesiastical tyranny of this reign,

that the most clandestine exercise of the Romish worship was

severely punished. Thus we read in the life of Whitgift, that on

information given that some ladies and others heard mass in the

house of one Edwards by night, in the county of Denbigh, he being

then Bishop of Worcester and Vice-President of Wales, was directed

to make inquiry into the facts; and finally was instructed to commit

Edwards to close prison, and as for another person implicated,

named Morice, "if he remained obstinate, he might cause some kind

of torture to be used upon him, and the like order they prayed him to

use with the others."[224] But this is one of many instances, the events of every day, forgotten on the morrow, and of which no general

historian takes account. Nothing but the minute and patient diligence

of such a compiler as Strype, who thinks no fact below his regard,

could have preserved them from oblivion.[225]

137

It will not surprise those who have observed the effect of all

persecution for matters of opinion upon the human mind, that during

this period the Romish party continued such in numbers and in zeal

as to give the most lively alarm to Elizabeth's administration. One

cause of this was beyond doubt the connivance of justices of the

peace, a great many of whom were secretly attached to the same

interest, though it was not easy to exclude them from the

commission, on account of their wealth and respectability.[226] The facility with which catholic rites can be performed in secret, as before

observed, was a still more important circumstance. Nor did the

voluntary exiles established in Flanders remit their diligence in filling

the kingdom with emissaries. The object of many at least among

them, it cannot for a moment be doubted, from the æra of the bull of

Pius V.,

138

if not earlier, was nothing less than to subvert the queen's throne.

They were closely united with the court of Spain, which had passed

from the character of an ally and pretended friend, to that of a cold

and jealous neighbour, and at length of an implacable adversary.

Though no war had been declared between Elizabeth and Philip,

neither party had scrupled to enter into leagues with the disaffected

subjects of the other. Such sworn vassals of Rome and Spain as an

Allen or a Persons, were just objects of the English government's

distrust: it is the extension of that jealousy to the peaceful and loyal

which we stigmatise as oppressive, and even as impolitic.[227]

Fresh laws against the catholic worship. —In concert with the directing

powers of the Vatican and Escurial, the refugees redoubled their

exertions about the year 1580. Mary was now wearing out her years

in hopeless captivity; her son, though they did not lose hope of him,

had received a strictly protestant education; while a new generation

had grown up in England, rather inclined to diverge more widely from

the ancient religion than to suffer its restoration. Such were they who

formed the House of Commons that met in 1581, discontented with

the severities used against the puritans, but ready to go beyond any

measures that the court might propose to subdue and extirpate

popery. Here an act was passed, which, after repeating the former

provisions that had made it high treason to reconcile

139

any of her majesty's subjects, or to be reconciled to the church of

Rome, imposes a penalty of £20 a month on all persons absenting

themselves from church, unless they shall hear the English service at

home: such as could not pay the same within three months after

judgment were to be imprisoned until they should conform. The

queen, by a subsequent act, had the power of seizing two-thirds of

the party's land, and all his goods, for default of payment.[228] These grievous penalties on recusancy, as the wilful absence of catholics

from church came now to be denominated, were doubtless founded

on the extreme difficulty of proving an actual celebration of their own

rites. But they established a persecution which fell not at all short in

principle of that for which the inquisition had become so odious. Nor

were the statutes merely designed for terror's sake, to keep a check

over the disaffected, as some would pretend. They were executed in

the most sweeping and indiscriminating manner, unless perhaps a

few families of high rank might enjoy a connivance.[229]

Execution of Campian and others. —It had certainly been the desire of

Elizabeth to abstain from capital punishments on the score of religion.

The first instance of a priest suffering death by her statutes was in

1577, when one Mayne was hanged at Launceston, without any

charge against him except his religion, and a gentleman who had

harboured him was sentenced to imprisonment for life.[230] In the next year, if we may trust the zealous catholic writers, Thomas Sherwood,

a boy of fourteen years, was executed for refusing to deny the

temporal power of the pope, when urged by his judges.[231] But in 1581 several seminary priests from Flanders having been arrested,

whose projects were supposed (perhaps not wholly without

foundation) to be very inconsistent with their allegiance, it was

unhappily deemed necessary to hold out some more conspicuous

examples of rigour. Of those brought to trial the most eminent was

140

Campian, formerly a protestant, but long known as the boast of

Douay for his learning and virtues.[232] This man, so justly respected, was put to the rack, and revealed through torture the names of some

catholic gentlemen with whom he had conversed.[233] He appears to have been indicted along with several other priests, not on the recent

statutes, but on that of 25 Edw. III. for compassing and imagining the

queen's death. Nothing that I have read affords the slightest proof of

Campian's concern in treasonable practices, though his connections,

and profession as a jesuit, render it by no means unlikely. If we may

confide in the published trial, the prosecution was as unfairly

conducted, and supported by as slender evidence, as any perhaps

which can be found in our books.[234] But as this account, wherein Campian's language is full of a dignified eloquence, rather seems to

have been compiled by a partial hand, its faithfulness may not be

above suspicion. For the same reason I hesitate to admit his alleged

declarations at the place of execution, where, as well as at his trial,

he is represented to have expressly acknowledged Elizabeth, and to

have prayed for her as his queen de facto and de jure. For this was

one of the questions propounded to him before his trial, which he

refused to answer, in such a manner as betrayed his way of thinking.

Most of those interrogated at the same time, on being pressed

whether the queen was their lawful sovereign whom they were bound

to obey, notwithstanding any sentence of deprivation that the pope

might pronounce, endeavoured, like Campian, to evade the snare. A

few, who unequivocally disclaimed the deposing power of the Roman

see, were pardoned.[235] It is more honourable to Campian's memory that we should reject these pretended declarations,

141

than imagine him to have made them at the expense of his

consistency and integrity. For the pope's right to deprive kings of their

crowns was in that age the common creed of the jesuits, to whose

order Campian belonged; and the continent was full of writings

published by the English exiles, by Sanders, Bristow, Persons, and

Allen, against Elizabeth's unlawful usurpation of the throne. But many

availed themselves of what was called an explanation of the bull of

Pius V., given by his successor Gregory XIII.; namely, that the bull

should be considered as always in force against Elizabeth and the

heretics, but should only be binding on catholics when due execution

of it could be had.[236] This was designed to satisfy the consciences of some papists in submitting to her government, and taking the oath of

allegiance. But in thus granting a permission to dissemble, in hope of

better opportunity for revolt, this interpretation was not likely to

tranquillise her council, or conciliate them towards the Romish party.

The distinction, however, between a king by possession and one by

right, was neither heard for the first, nor for the last time, in the reign

of Elizabeth. It is the lot of every government that is not founded on

the popular opinion of legitimacy, to receive only a precarious

allegiance. Subject to this reservation, which was

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pretty generally known, it does not appear that the priests or other

Roman catholics, examined at various times during this reign, are

more chargeable with insincerity or dissimulation than accused

persons generally are.

The public executions, numerous as they were, scarcely form the

most odious part of this persecution. The common law of England

has always abhorred the accursed mysteries of a prison-house; and

neither admits of torture to extort confession, nor of any penal

infliction not warranted by a judicial sentence. But this law, though still

sacred in the courts of justice, was set aside by the privy council

under the Tudor line. The rack seldom stood idle in the Tower for all

the latter part of Elizabeth's reign.[237] To those who remember the annals of their country, that dark and gloomy pile affords associations

not quite so numerous and recent as the Bastile, yet enough to excite

our hatred and horror. But standing as it does in such striking contrast

to the fresh and flourishing constructions of modern wealth, the

proofs and the rewards of civil and religious liberty, it seems like a

captive tyrant, reserved to grace the triumph of a victorious republic,

and should teach us to reflect in thankfulness, how highly we have

been elevated in virtue and happiness above our forefathers.

Such excessive severities under the pretext of treason, but sustained

by very little evidence of any other offence than the exercise of the

catholic ministry, excited indignation throughout a great part of

Europe. The queen was held forth in pamphlets, dispersed

everywhere from Rome and Douay, not only as a usurper and

heretic, but a tyrant more ferocious than any heathen persecutor, for

inadequate parallels to whom they ransacked all former history.[238]

These exaggerations, coming

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from the very precincts of the inquisition, required the unblushing

forehead of bigotry; but the charge of cruelty stood on too many facts

to be passed over, and it was thought expedient to repel it by two

remarkable pamphlets, both ascribed to the pen of Lord Burleigh.

Defence of the queen, by Burleigh. —One of these, entitled "The

Execution of Justice in England for Maintenance of public and private

Peace," appears to have been published in 1583. It contains an

elaborate justification of the late prosecutions for treason, as no way

connected with religious tenets, but grounded on the ancient laws for

protection of the queen's person and government from conspiracy. It

is alleged that a vast number of catholics, whether of the laity or

priesthood, among whom the deprived bishops are particularly

enumerated, had lived unmolested on the score of their faith,

because they paid due temporal allegiance to their sovereign. Nor

were any indicted for treason, but such as obstinately maintained the

pope's bull depriving the queen of her crown. And even of these

offenders, as many as after condemnation would renounce their

traitorous principles, had been permitted to live; such was her

majesty's unwillingness, it is asserted, to have any blood spilled

without this just and urgent cause proceeding from themselves. But

that any matter of opinion, not proved to have ripened into an overt

act, and extorted only, or rather

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conjectured, through a compulsive inquiry, could sustain in law or

justice a conviction for high treason, is what the author of this

pamphlet has not rendered manifest.[239]

A second and much shorter paper bears for title, "A Declaration of the

favourable dealing of her Majesty's Commissioners, appointed for the

examination of certain traitors, and of tortures unjustly reported to be

done upon them for matter of religion." Its scope was to palliate the

imputation of excessive cruelty with which Europe was then

resounding. Those who revere the memory of Lord Burleigh must

blush for this pitiful apology. "It is affirmed for truth," he says, "that the

forms of torture in their severity or rigour of execution have not been

such and in such manner performed, as the slanderers and seditious

libellers have published. And that even the principal offender,

Campian himself, who was sent and came from Rome, and continued

here in sundry corners of the realm, having secretly wandered in the

greater part of the shires of England in a disguised suit, to be intent to

make special preparation of treasons, was never so racked but that

he was perfectly able to walk and to write, and did presently write and

subscribe all his confessions. The queen's servants, the warders,

whose office and act it is to handle the rack, were ever by those that

attended the examinations specially charged to use it in so charitable

a manner as such a thing might be. None of those who were at any

time put to the rack," he proceeds to assert, "were asked, during their

torture, any question as to points of doctrine; but merely concerning

their plots and conspiracies, and the persons with whom they had

had dealings, and what was their own opinion as to the pope's right to

deprive the queen of her crown. Nor was any one so racked until it

was rendered evidently probable by former detections or confessions

that he was guilty; nor was the torture ever employed to wring out

confessions at random; nor unless the party had first refused to

declare the truth at the queen's commandment." Such miserable

excuses serve only to mingle contempt with our detestation.[240] But it is due to Elizabeth to observe, that she ordered the torture to be

disused; and upon a subsequent occasion, the quartering of

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some concerned in Babington's conspiracy having been executed

with unusual cruelty, gave directions that the rest should not be taken

down from the gallows until they were dead.[241]

I should be reluctant, but for the consent of several authorities, to

ascribe this little tract to Lord Burleigh, for his honour's sake. But we

may quote with more satisfaction a memorial addressed by him to the

queen about the same year, 1583, full not only of sagacious, but just

and tolerant advice. "Considering," he says, "that the urging of the

oath of supremacy must needs, in some degree, beget despair, since

in the taking of it, he [the papist] must either think he doth an unlawful

act, as without the special grace of God he cannot think otherwise, or

else, by refusing it, must become a traitor, which before some hurt

done seemeth hard; I humbly submit this to your excellent

consideration, whether, with as much security of your majesty's

person and state, and more satisfaction for them, it were not better to

leave the oath to this sense, that whosoever would not bear arms

against all foreign princes, and namely the pope, that should any way

invade your majesty's dominions, he should be a traitor. For hereof

this commodity will ensue, that those papists, as I think most papists

would, that should take this oath, would be divided from the great

mutual confidence which is now between the pope and them, by

reason of their afflictions for him; and such priests as would refuse

that oath then, no tongue could say for shame that they suffer for

religion, if they did suffer.

"But here it may be objected, they would dissemble and equivocate

with this oath, and that the pope would dispense with them in that

case. Even so may they with the present oath both dissemble and

equivocate, and also have the pope's dispensation for the present

oath, as well as for the other. But this is certain, that whomsoever the

conscience, or fear of breaking an oath, both bind, him would that

oath bind. And that they make conscience of an oath, the trouble,

losses, and disgraces that they suffer for refusing the same do

sufficiently testify; and you know that the perjury of either oath is

equal."

These sentiments are not such as bigoted theologians were then, or

have been since, accustomed to entertain. "I account," he says

afterwards, "that putting to death does no ways lessen them; since

we find by experience, that it worketh no such effect, but, like hydra's

heads, upon cutting off one, seven grow up, persecution being

accounted as the badge of the church:

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and therefore they should never have the honour to take any

pretence of martyrdom in England, where the fullness of blood and

greatness of heart is such that they will even for shameful things go

bravely for death; much more, when they think themselves to climb

heaven, and this vice of obstinacy seems to the common people a

divine constancy; so that for my part I wish no lessening of their

number, but by preaching and by education of the younger under

schoolmasters." And hence the means he recommends for keeping

down popery, after the encouragement of diligent preachers and

schoolmasters, are, "the taking order that, from the highest counsellor

to the lowest constable, none shall have any charge or office but such

as will really pray and communicate in their congregation according to

the doctrine received generally into this realm;" and next, the

protectio