ilty 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 soverei