Note 260 — Chapter III
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"Though no papists were in this reign put to death purely on account of their religion, as numberless protestants had been in the woeful days of Queen Mary, yet many were executed for treason." Churton's Life of Nowell, p. 147. Mr. Southey, whose abandonment of the oppressed side I sincerely regret, holds the same language; and a later writer, Mr. Townsend, in his Accusations of History against the Church of Rome, has laboured to defend the capital, as well as other, punishments of catholics under Elizabeth, on the same pretence of their treason.
Treason, by the law of England, and according to the common use of language, is the crime of rebellion or conspiracy against the government. If a statute is made, by which the celebration of certain religious rites is subjected to the same penalties as rebellion or conspiracy, would any man, free from prejudice, and not designing to impose upon the uninformed, speak of persons convicted on such a statute as guilty of treason, without expressing in what sense he uses the words, or deny that they were as truly punished for their religion, as if they had been convicted of heresy? A man is punished for religion, when he incurs a penalty for its profession or exercise, to which he was not liable on any other account.
This is applicable to the great majority of capital convictions on this score under Elizabeth. The persons convicted could not be traitors in any fair sense of the word, because they were not charged with anything properly denominated treason. It certainly appears that Campian and some other priests about the same time were indicted on the statute of Edward III. for compassing the queen's death, or intending to depose her. But the only evidence, so far as we know or have reason to suspect, that could be brought against them, was their own admission, at least by refusing to abjure it, of the pope's power to depose heretical princes. I suppose it is unnecessary to prove that, without some overt act to show a design of acting upon this principle, it could not fall within the statute.