The provisions of the Act of Association were so heavily weighted against Mary that she stood absolutely no chance of acquittal even if it had not been quite clear to all and sundry that her case had been pre-judged. Indeed Cecil mentioned calmly to Shrewsbury that if his health really did prevent him from attending, he ought to authorize Cecil in advance to deliver his (Shrewsbury’s) opinion of Mary’s guilt.5 It was of no avail for Châteauneuf, the French ambassador, to plead with Elizabeth for Mary at least to have counsel to defend her on what was a capital charge: Elizabeth told him sharply that she did not need advice from strangers on how to manage her own business. At the forthcoming trial, therefore, Mary was to be allowed neither counsel nor witnesses in her defence; she was not even to be allowed a secretary or amanuensis to help her prepare her own case – her own secretaries being of course still in prison in London. She was to be left quite alone, a sick woman and a foreigner, who knew nothing of England, its laws, or customs, and had only begun to learn its language comparatively late in life, to conduct and manage her own defence against the best legal brains in the country. These eminent lawyers on the other hand were not even to be put to the simple task of bringing witnesses for the prosecution for none was to be called.
Yet, curiously enough, by the standards of the sixteenth century the innate injustice of the trial of Mary Queen of Scots lay not so much in its arrangements – the accused was never allowed counsel at an English treason trial at this date, and the barbarity of the Scottish treason trials has been sufficiently commented upon* – as in the fact that the trial took place at all. How, indeed, could it ever be legal for Mary as sovereign, the queen of a foreign country, to be tried for treason, when she was in no sense one of Elizabeth’s subjects? In 1586 the sovereignty of a ruler was taken extremely seriously with regard to his own subjects – how much more difficult then was it to try and execute one who was actually or had been the sovereign of another country? Elizabeth herself was the first to perceive the dangers for the future of pulling down any monarch to the rank where he or she could be punished like any other subject – let alone the monarch of another country. If Mary had partaken in treasonable activities in England where in any case she was a prisoner, held against her will, the correct remedy (although of course it was never considered) was surely to expel her from the country. The mere judicial proceedings for trying a sovereign presented enormous difficulties by English common law. In England it was the foundation-stone of justice that every man had a right to be tried by his peers; Mary being a queen had no peers in England except Elizabeth herself. Neither privy councillors nor earls nor barons gathered together in no matter what profusion could be said to be the equals of one who was an anointed queen.
As the English lawyers pondered these questions, it was even suggested that the old claims of England to feudal suzerainty over Scotland (last used by Henry VIII to justify his depredations) might be brought out again, dusted over and employed to prove that Mary was Elizabeth’s subject and as such capable of both treason against her, and of trial by English law. In the end the line of proceedings taken consisted of a long narration of circumstances ranging down from ancient times – some of them very ancient indeed – when it had been considered suitable for one sovereign to try another for treason done within their state. The most recent case cited was that of Conradin, last of the Hohenstaufen, who, four centuries earlier, had been beheaded by the papal nominee for his father’s thrones, Charles, duke of Anjou, after being captured in battle and subjected to a form of treason trial. But the two cases were hardly comparable, as Mary had certainly not been captured in battle, and in any case was utterly ignorant of the laws of England, a country in which she had never been permitted to live at liberty.*6
In truth, the only possible justification for what was in fact unjustifiable was the Act of Association itself which, by defining the commission which was to try anyone found coming within the terms of the Act, disposed of such knotty problems as sovereignty and a queen’s peers by merely cutting through them and all the laws, both national and international, of the time. In the case of the trial of Mary Queen of Scots the traditional blindfold across the eyes of Justice was ruthlessly torn aside by the English commissioners so that the desired verdict might be reached. In order to strengthen a weak case, Cecil took trouble to recall Parliament: it so happened that the English Parliament had been prorogued until November, and the existing Commons could not be brought back before then. Therefore the old Parliament was dissolved and writs of commission for the new one sent out on 14th September, in order that the Commons might be already sitting at the time of the trial. This would help to gloss over the illegality of the proceedings in France and elsewhere or, as Cecil put it, ‘to make the burden better borne, and the world abroad better satisfied’. The hatred of the Commons for the queen of Scots had in no way abated over the years, but rather increased in violence: she was now regarded, in the words of one of its members, her former keeper, Sir Ralph Sadler, as ‘this most wicked and filthy woman’; Cecil knew that he could rely on the faithful Commons to present this point of view forcibly after the trial to Elizabeth, herself more likely to be haunted by the spectacle of a crowned head rolled in the dust.
On Saturday, 11th October, the commissioners began to arrive at Fotheringhay, the most important lodging in the castle, the others in the village and neighbouring farms. Mary was given a copy of the commission which had summoned them. The next day a deputation of lords waited on her – Sir Walter Mildmay, Stallenge, the usher of Parliament, Barker, Elizabeth’s notary, and Paulet himself. The object of this mission was to get Mary to consent to appear in person at the trial and thus acknowledge its legality. They handed the Scottish queen an epistle from Elizabeth in which she announced to her that she had sent some peers and legal counsellors to examine Mary and judge her case since Mary persistently denied her participation in a plot against Elizabeth, despite the cogent proofs of her part in it which Elizabeth possessed. As for the legality of such proceedings – since Mary was in England, concluded Elizabeth boldly, she was subject to the laws of the country.
To this Mary replied in fine style, and without in any way conceding their right to try her: ‘I am myself a Queen, the daughter of a King, a stranger, and the true kinswoman of the Queen of England. I came to England on my cousin’s promise of assistance against my enemies and rebel subjects and was at once imprisoned.’* She stressed her oft expressed, never gratified, wish to speak to Elizabeth and ended: ‘As an absolute Queen, I cannot submit to orders, nor can I submit to the laws of the land without injury to myself, the King my son and all other sovereign princes. … For myself I do not recognize the laws of England nor do I know or understand them as I have often asserted. I am alone, without counsel, or anyone to speak on my behalf. My papers and notes have been taken from me, so that I am destitute of all aid, taken at a disadvantage.’8 On the subject of her actual guilt, whereas Mary admitted that she had thrown herself under the protection of Catholic kings and princes, she denied any knowledge of an actual attempt against Elizabeth. Mary’s views were duly written down, to be communicated to the English queen.
The next morning Mary received another less courteous deputation, as she was sitting at her early dinner (ten o’clock in the morning). The Lord Chancellor Sir Thomas Bromley told her that whatever she might protest, she was subject to the laws of England, whether as a sovereign or as a captive, and that if she did not appear in person at her trial she would merely be condemned in absentia. Mary shed a few tears at such brusqueness and exclaimed that she was no subject, and she would rather die a thousand deaths than acknowledge herself one, since she would both betray the majesty of kings, and virtually admit that she was bound to submit to the laws of England even over religion. Once more, as she had done before, Mary offered to appear before a free Parliament and answer questions, rather than submit to the commissioners who she suspected had already condemned her unheard. But even in her distress Mary managed to produce anothe
r dramatic watchword or rallying-cry for her supporters, if the news of it should ever leak out, as she cried: ‘Look to your consciences and remember that the theatre of the world is wider than the realm of England.’9
Cecil now interrupted the conversation with considerable passion: his vehemence probably had a private cause, for there had been some embarrassing rumours that Cecil himself was favourably disposed towards Mary, based on the fact that his grandson William Cecil had visited Rome and had there been converted to the Catholic faith. Mary herself seems to have been under the illusion that the grandson had persuaded the grandfather into a more clement frame of mind.* Now Cecil was disposed to put an end publicly to such idle notions, and the process ‘made him it is thought more earnest against her’, for he now broke out quite rudely to the queen: ‘Will you therefore hear us or not? If you refuse, the assembled Council will continue to act according to the Commission.’
The matter of Mary’s personal appearance at the trial – by which she would acknowledge in some measure at least to the public eye their jurisdiction over her – was now the subject of prolonged discussion between Mary and her would-be judges. Mary continually reiterated her sovereign status: it was not until 14th October that she finally succumbed, and agreed to appear in order to answer the single charge that she had plotted the assassination of Elizabeth. During the discussions, Mary received a letter from Elizabeth in London, in which reproach and anger were mixed: ‘You have planned in divers ways and manners to take my life and to ruin my kingdom by the shedding of blood,’ Elizabeth wrote. ‘I never proceeded so harshly against you; on the contrary, I have maintained you and preserved your life with the same care which I use for myself.’ Now Elizabeth commanded Mary to reply to the peers of her kingdom as if she herself were present. The only possible note of friendliness was in the last phrase of the letter: ‘But answer fully, and you may receive greater favour from us.’10
Did Mary detect in these ambiguous words some hint that, if she appeared before the judges, she would in the end receive pardon, whatever her crimes, and was this then the motive that determined her to accede to their pressing demands, thus jeopardizing her sovereign position? But by this stage in her life, and in the frame of mind in which she had found herself since August, and that grim meditative fortnight at Tixall, it does not seem that Mary Stuart was animated by any hope of being shown further mercy. The strange serenity which now possessed her, on which both Paulet and Bourgoing commented from different viewpoints, was the calm of a woman who perfectly well realized that she was about to die. The heroism of her sentiments was carefully and brilliantly angled towards the martyr’s death which would bear witness to the cause of the Catholic Church: as Mary herself had said, she was playing her last role towards the theatre of the world, rather than the realm of England.
Mary has been criticized for rescinding her determination never to appear before this illegal court; but there can be no doubt that her noble bearing at this trial, and the magnificent speeches she made there, all directed towards showing her in the light of the martyr queen, did much to enhance this picture when they gradually became known after her death. Furthermore the full publicity she was able to give at it to her wrongs also distracted attention from points on which she might be held considerably more vulnerable (although the court was still not competent to judge it) such as the letter she had written to Babington. Although on the one hand Mary sacrificed her royal position by appearing before a tribunal which had no right to try her, on the other she greatly improved her position in the eyes of history. The queen of Scots was clever to see this when she agreed to appear before the judges – intuition in this case being more potent than legal knowledge. Even so, the stress of making this critical decision reduced Mary to faintness, and she had to be revived with wine before her resolve could be committed to writing.
The trial of Mary Queen of Scots began on the next day, Wednesday, 15th October, in a room directly above the great hall of Fotheringhay Castle. Even Bourgoing considered this chamber spacious and convenient: it was nearly seventy feet long including the window, and twenty-one feet wide. The most detailed plans were made for the trial, and the position of every participant was carefully mapped out in Cecil’s chart. At the upper end of the room there was a throne and a royal canopy with the arms of England over it; opposite the throne for the benefit of the prisoner was placed one of Mary’s own crimson velvet chairs, and a crimson velvet cushion for her feet. The room was divided in two by a wooden barrier with a door through it. Above the barrier two parallel benches were positioned on each side of the room: on the right sat the Lord Chancellor Bromley, Cecil as Lord Treasurer, and the earls including Shrewsbury. In front of them sat the two chief justices and the high Baron of the Exchequer. On the left sat the barons and knights of the Privy Council including Walsingham, Christopher Hatton and Sir Ralph Sadler, with four other judges and two doctors of civil law in front of them. A large table in front of the canopy was for the use of the crown representatives including the Attorney-General and Solicitor-General and Barker, the notary, and on it were placed the documents to be used in the case. Below the barrier, the remaining twenty-four feet of the room was for the use of the spectators – the ordinary people of the village, and the servants of the commissioners.
Queen Mary entered the great hall at nine o’clock, with an escort of soldiers. She wore her chosen garb of the sad years of captivity – a dress and mantle of flowing black velvet, her traditional white head-dress with its widow’s peak, and a long white gauzy veil. Her maid Reneé de Beauregard bore her train, but Queen Mary was now so lame with rheumatism, and her muscles had lacked exercise for so long, that she could scarcely walk or even limp along, and had to be supported by Melville and Bourgoing. She was followed by her surgeon Jacques Gervais, her apothecary Pierre Gorion and three of her women, Jane Kennedy, Elizabeth Curle and Gillis Mowbray. The commissioners respectfully uncovered their heads as the queen passed, but there was still one delicate moment when the prisoner appeared to be about to jib at her treatment: this was when she realized that she was not to sit on the throne as she had imagined, but on the crimson velvet chair. Mary exclaimed spontaneously: ‘I am a Queen by right of birth and my place should be there under the dais!’ But after this first instinctive reaction, she recovered her composure, as though she had in advance decided to go through with the ordeal, no matter what the humiliation, and this cry had merely been wrung from her by surprise. The queen sat down quietly in the chair allotted to her and merely observed to Melville as she scanned the faces of the English peers: ‘Ah! here are many counsellors, but not one for me.’11
The trial was opened by a speech from the Lord Chancellor in which he explained the motives which had impelled Queen Elizabeth to institute these proceedings – how she had been informed that the queen of Scots had planned her fall and was therefore bound to convoke a public assembly to examine the accusation – and ended by stating that Queen Mary would have every opportunity of declaring her own innocence. To all this Mary replied in terms very much as before, not only denying the jurisdiction of the court over a queen, but also laying great stress on the conditions under which she had first arrived in England: ‘I came into this kingdom under promise of assistance, and aid, against my enemies and not as a subject, as I could prove to you had I my papers; instead of which I have been detained and imprisoned.’ Queen Mary emphasized that the only reason she had condescended to appear before the commission was in order to show that she was not guilty of the particular crime of conspiring against Elizabeth’s life. In answer the Lord Chancellor utterly denied that Mary had arrived in England under promise of assistance from Elizabeth, as also he declared futile her protests against the jurisdiction of the court itself over her. The commission to try the Scottish queen was then read aloud in Latin, at which Mary now made a further protest against the laws on which it was based, which she said had been expressly framed to destroy her.
Gawdy, the royal sergeant, now rose in
his blue robe, with a red hood lying flatly on the shoulders. He detailed the events leading up to the Scottish queen’s arrest, including the seizure of Babington, and the listing of six men who were intended to assassinate Elizabeth. To this Mary replied that she had never met Babington, had never ‘trafficked’ with him and knew nothing of the six men. Letters said to have been dictated by Babington before his death were then read aloud, and copies of the correspondence between Mary and Babington passed round, together with the signed depositions of Curle and Nau, and the confessions of the other conspirators. Mary strongly protested against this second-hand evidence and very sensibly continued to demand to see the originals of her so-called correspondence with Babington. She refused to admit anything at all on such indirect proofs, and suggested that her own ciphers could all too easily have been tampered with. Despite her lonely position without counsel, Mary never for a moment lost her head: she continued to draw a sharp distinction between the actions which she as a prisoner had inevitably taken to try and secure her own rescue (‘I do not deny that I have earnestly wished for liberty and done my utmost to procure it for myself. In this I acted from a very natural wish’) and actual connivance at the death of Elizabeth, which she strongly denied. As for the letters, once more she rejected them in toto. ‘Can I be responsible,’ she demanded passionately, ‘for the criminal projects of a few desperate men, which they planned without my knowledge or participation?’
Mary Queen of Scots Page 72