The MS of ‘A plee for a prieste. . .’ is to be found in the Archives of the Archdiocese of Westminster, Series A, VII, no. 104.

I am very grateful to Michael Bowman for discussions of this topic. Without his sage advice, based on years of legal training and practice, it would have been virtually impossible to take this project to a conclusion.

¹ Bowler, H. (ed.), Recusant Roll No. 2 (1593–1594), Catholic Record Society, 57 (London, 1965)Google Scholar, vii–cxiv.

² L.J. Ward, ‘The law of treason in the reign of Elizabeth I 1558–1588’, PhD thesis, Cambridge, 1985, ch. 1.

³ Ward, ‘Law of treason’, 50–53, 54.

⁴ Luder, A. et al. (eds), Statutes of the Realm, 11 vols, (London, 1810–28)Google Scholar [SR], IV, 528–529. The statute provided that ‘to prevent the greate myscheefes and inconvenyences that thereby maye ensue’,

⁵ Ward, ‘Law of treason’, 59–60.

⁶ SR, IV, 657.

⁷ SR, IV, 706–707. See also the royal proclamation of 1 April 1582, Hughes, P.L. and Larkin, J.F. (eds), Tudor Royal Proclamations, 3 vols (London, 1969)Google Scholar, II, no. 660; Bellamy, J., The Tudor Law of Treason (London, 1979), 72Google Scholar.

⁸ See, e.g., Allen, William, An Apologie and True Declaration of the Institution and Endevours of the two English Colleges . . . (Rheims, 1581)Google Scholar; Cecil, William, The Execution of Justice in England (London, 1583)Google Scholar.

⁹ Ward, ‘Law of treason’, 248–251.

¹⁰ Allen, William, A True, Sincere, and Modest Defence of English Catholics . . . (London, 1914)Google Scholar, ch. 1, 12, 13–14. For the arguments over this issue at James Bell's trial in 1584, see Pollen, J.H. (ed.), Unpublished Documents relating to the English Martyrs 1584–1603, Catholic Record Society, 5 (London, 1908)Google Scholar, 75, 77. For Hanse's indictment, which Ward argues was under the 1571 treason statute for uttering traitorous words, see Ward, ‘Law of treason’, 299--300.

¹¹ The National Archives (TNA), SP 12/217/1, fo. 3^r; Ward, ‘Law of treason’, 290; Manning, R.B., Religion and Society in Elizabethan Sussex (Leicester, 1969), 145Google Scholar.

¹² Pollen, Unpublished Documents, 178; R. Challoner, ed. Pollen, J.H., Memoirs of Missionary Priests (London, 1924), 160Google Scholar.

¹³ Archivum Britannicum Societatis Jesu (ABSJ), Stonyhurst MS Collectanea M, 146^b.

¹⁴ Pollen, Unpublished Documents, 334; Robert Southwell, An Humble Supplication to her Maiestie (n.p., 1595 (printed secretly in England, 1600–1601)), 53–56.

¹⁵ Challoner, Memoirs, 225. John Aveling suggests that there was a ‘clear tendency’ at the treason trials in the North Riding in 1582–1583, i.e. after the 1581 statute but before that of 1585, ‘to argue that ordination overseas or receiving or reconciliation by authority from Rome was tantamount to breach of the act of 1559 and of the old treasons acts’, J.C.H. Aveling, Northern Catholics (London, 1966), 138.

¹⁶ Challoner, Memoirs, 254.

¹⁷ TNA, SP 12/238/126, i–iv, quotations at no. iv, fo. 189^r; L. Underwood, ‘Persuading the Queen's Majesty's subjects from their allegiance: Treason, reconciliation and confessional identity in Elizabethan England’ (forthcoming in Historical Research, 2015). I am grateful to Dr Underwood for allowing me to see this paper in draft. For John Hambley's rather different account of (his) reconciliation to Rome by the priest John Ballard in London in 1583, see TNA, SP 12/192/46, i, fo. 71^r–v.

¹⁸ Bacon, Francis, ‘Certain Observations made upon a Libel published this Present Year, 1592’, in Spedding, J., Ellis, R. and Heath, D. (eds), The Works of Francis Bacon, 14 vols, London, 1857–1874)Google Scholar, VIII, 179–180, cited in P. Lake, Bad Queen Bess (forthcoming), ch. 15; Houliston, V., Catholic Resistance in Elizabethan England: Robert Persons's Jesuit Polemic, 1580–1610 (Aldershot, 2007), 53Google Scholar.

¹⁹ Pollen, Unpublished Documents, 231–232; Challoner, Memoirs, 188.

²⁰ The presiding judge Sir Edmund Anderson's hostility to Catholic separatism was, it seems, the product of religious conservatism; he was equally hostile, by turns, towards both Catholics and puritans; ODNB, sub Anderson, Edmund (article by D. Ibbetson).

²¹ W. Richardson, ‘The religious policy of the Cecils, 1588–1598’, DPhil, Oxford, 1993, 100–111. They had been imprisoned under 23 Eliz. c. 1, i.e. for refusing to attend church, ODNB, sub Barrow, Henry (article by P. Collinson).

²² Lake, P. and Questier, M., The Trials of Margaret Clitherow (London, 2011)Google Scholar, chs 7, 8.

²³ Pollen, Unpublished Documents, 231–232; Challoner, Memoirs, 188; Underwood, ‘Persuading’.

²⁴ Challoner, Memoirs, 240–241 (Challoner's narrative is based on Thomas Worthington, A Relation of Sixtene Martyrs: glorified in England in twelve monethes: With a Declaration: That English Catholiques suffer for the Catholique Religion: And that the Seminarie Priests Agree with the Iesuites (Douai, 1601), sigs A2^r–C7^r). Protestant polemicists of course denied the validity as much as the lawfulness of sacramental reconciliation to Rome; see, e.g., Bayley, Lewis, The Practise of Pietie, 11th edn (London, 1619), 763–765Google Scholar.

²⁵ A True Report of the Araignment, Tryall, Conviction, and Condemnation, of a Popish Priest, named Robert Drewrie (London, 1607), sigs A4^r–B^r. For similar arguments at the trials in 1610 of Roger Cadwallader and John Roberts, see Challoner, Memoirs, 300–301; Pollen, J.H. (ed.), Acts of English Martyrs (London, 1891), 151–153Google Scholar. As Challoner relates it in Cadwallader's case, Bishop Robert Bennett ‘seemed much to insist upon this one point, that Christ was the only sacrificing priest of the New Testament, in that proper signification of the name, priest, which is not common to all Christians; so to free himself from being a priest. Which made the blessed martyr return him this witty answer: “make that good, I pray you, my lord, for so you will prove that I am no more a priest than other men, and consequently, no traitor or offender against your law”’, Challoner, Memoirs, 300–301.

²⁶ ABSJ, Stonyhurst MS Collectanea M, 99^b, 100^a.

²⁷ True Report of . . . Robert Drewrie, sig. B2^r–3^v.

²⁸ ABSJ, Stonyhurst MS Collectanea M, 100^a.

²⁹ Michael Bowman suggests that, since the only precedent cited in this text is Hambleton's Case, perhaps the author had a civil-law rather than a common-law training, though, as he remarks, there were very few precedents of any use to defendants in treason trials anyway. Mr Bowman suggests also that this text might have been compiled in connection with actual legal defences in court of indicted Catholics. Successful defences in treason trials were rare, and none is recorded on the basis of the arguments advanced here. On the other hand, although there were very few precedents of any use to a defendant on a charge of treason, a treason trial was one of the occasions when the court might grant the right to counsel – in other criminal trials the defence had no right to call witnesses and a defendant might be represented by a barrister only on questions of law. Mr Bowman advises (and this seems absolutely right) that even if the arguments advanced in the text were were unlikely to be successful while the trial was in progress, their real usefulness might be as a basis for a plea for clemency.

³⁰ Thomas McCoog has shown that on 3 June 1598, there was a meeting of Catholics in London. They wished to take advantage of the recent Franco-Spanish peace negotiations and they discussed which of the penal statutes should be abolished if France and Spain imposed on Elizabeth sufficiently to grant toleration. I am grateful to Dr McCoog for alerting me to this fact and to the relevant manuscript citation (Archivio Segreto Vaticano, Segr. Stato Nunz, Diverse 264, fo. 233^v: ‘Quae Catholici Anglicani ex suorum jurisconsultorum consilio petunt ne nominatim revocentur a Regina in concedenda religionis Catholicae tollerantia’). Obviously this meeting predated the composition of the manuscript printed below, but it may be that this manuscript and its summary of the case against the penal code against aspects of Catholic separatism came out of the same speculation about the possibility of some form of regime-sponsored tolerance.

³¹ Richard Broughton, An Apologicall Epistle serving as well for a Praeface to a Booke entituled, A Resolution of Religion: as also, containing the Authors most lawfull defence to all estates, for publishing the same (Antwerp (imprint false, printed secretly in England), 1601), 95–96. Andrew Willet answered Broughton that Catholics’ denial of the ecclesiastical supremacy is enough to constitute treason; even under the treason statute of Edward III, papist clerics ‘that maintaine a forraine potentate, a knowne enemie to prince and countrie, are found to be traytors: for they which are adherent “to the kings enemies in his realme, giving them ayde and comfort within the realme, or elsewhere”, are by that statute judged traytors’, Willet, Andrew, An Antilogie or Counterplea to an Apologicall (he should have said) Apologeticall Epistle published by a Favourite of the Romane Separation, and (as is supposed) one of the Ignatian Faction: Wherein two hundred Untruths and Slaunders are discovered . . . (London, 1603), 222–223Google Scholar.

³² TNA, SP 78/51, fo. 150^r; Questier, M., Catholicism and Community in Early Modern England: Politics, Aristocratic Patronage and Religion, c.1550–1640 (Cambridge, 2006), 271–272CrossRefGoogle Scholar.

³³ As far back as May 1586 we can find the loyalist priest Edward Gratley arguing to Sir Francis Walsingham that ‘reconciliation imports’ no more than ‘a change of a man's mind from a state of sin to a state of grace, by contrition, and purpose of amendment, with submission to the authentical power of a true priest, authorized by Christ to remit sins’. Anyone who suggested that ‘reconciliation binds one to the pope or Rome, excluding obedience to the prince or governor’ was ‘either grossly blinded or maliciously incensed’, R. Lemon and M.A.E. Green (eds), Calendar of State Papers, Domestic Series, 12 vols [for 1547–1625] (London, 1856–1872), Addenda 1580–1625, 178 (TNA, SP 15/29, fo. 165^r).

³⁴ Archives of the Archdiocese of Westminster [AAW], A, VII, 526.

³⁵ AAW, A, VII, 527.

³⁶ There is an obvious compatibility here with the contemporary arguments which were deployed in order to make the case for jure divino episcopacy even though defenders of what one might term a high version of the supremacy would, obviously, argue that powers conferred by ordination were not ones that were to be exercised by the monarch; see e.g. J.P. Sommerville, Politics and Ideology in England 1603–1640 (London, 1986), 208–210.

³⁷ See e.g. Tyacke, N., Anti-Calvinists: The Rise of English Arminianism c.1590–1640 (Oxford, 1987), 5–7Google Scholar.

³⁸ Carier, Benjamin, A Treatise written by M^r. Doctour Carier . . . (Brussels, 1614), 11–12Google Scholar. For George Hakewill's reply to Carier, see Hakewill, George, An Answere to a Treatise . . . (London, 1616)Google Scholar, esp. at sigs F3^v–H4^v. See also Questier, M., ‘Crypto-papism, anti-calvinism and conversion: The enigma of Benjamin Carier’, Journal of Ecclesiastical History, 47 (1996), 45–64CrossRefGoogle Scholar. There is a family likeness between Carier's arguments here and the case made by other Jacobean converts, notably Theophilus Higgons who, we know, had links with another alleged ‘Arminian’, Humphrey Leech; see Higgons, Theophilus, The First Motive of T. H. Maister of Arts, and lately Minister, to suspect the Integrity of his Religion . . .(Douai, 1609)Google Scholar; Leech, Humphrey, A Triumph of Truth, Or, Declaration of the Doctrine concerning Evangelicall Counsayles . . . (Douai, 1609)Google Scholar; Questier, ‘Crypto-papism’, 59–60.

³⁹ For this issue, see, e.g., P. Lake and M. Questier, ‘The public politics of regime change: Thomas Digges, Robert Parsons and Sir Francis Hastings contest the religio-political arithmetic of the Elizabethan Fin de Siècle’ (forthcoming in Historical Journal).