It is often said that the greatest crime of the first Elizabethan age was the murder of Mary, Queen of Scots. Usually, the word ‘crime’ in this context merely means ‘an evil act’, rather than the legal definition of ‘An action or omission that violates a law’. By the same token, the word ‘murder’ may be taken to mean ‘unlawful killing’ rather than the (current) definition of ‘The intentional killing of a human being with malice aforethought.’ Not only that: it is commonly believed that Mary’s downfall was brought about by Elizabeth’s Secret Service led by Sir Francis Walsingham and William Cecil, Lord Burghley. But how much credence should we invest in these beliefs?

Elizabethan England was not, as some have suggested, a lawless kind of ‘Wild West’. True, many men went about armed – with swords and knives rather than Winchester rifles or Colt .45 pistols – but the use of these weapons was dictated by clear legal rules (which could vary from place to place, fair enough; in London, for instance, if your sword-blade was longer than a yard, the extra length could be broken off.) Much of what we know of those times has come to us through legal documents – from William Shakerspeare’s last will and testament to Christopher Marlowe’s post-mortem. Talking of which, it is notable that after Marlowe died, no matter how suspiciously, Frizer, Skeres and Poley did not run and hide – they waited for the law to take its course. As, indeed, had Marlowe and his friend Tom Watson after an earlier, similar fatal incident. The vast majority of Elizabethan citizens were law-abiding. The law was important.

Consider, then, the problem posed by Mary Stuart and her increasingly dangerous would-be rescuers. She was a queen, duly anointed and enthroned not once but twice. As Queen of Scotland and as Queen of France – though a dowager queen when her husband King Francois II of France died in December 1560. Although accepted into England by Queen Elizabeth, she was not an English subject nor therefore was she subject to English law (as she was to point out at her trial). Mary and her court were effectively Scotland writ small no matter what English castle they inhabited, still holding to the ‘Auld alliance’ with France, whose Catholic kings were her little brothers and whose greatest Catholic lords were her cousins. She was arguably the third most powerful woman in Europe, after Elizabeth who was also her cousin and Catherine de Medici who was her mother-in-law. And, before 1584, effectively untouchable.

Elizabeth also accepted another dethroned monarch into her realm, and the contrast between them is telling. This was Dom Antonio, Prior of Crato, one-time king of Portugal, who was permitted to set up his court in exile in Eton, opposite Windsor Castle and close to Eton College. Dom Antonio was – to begin with at least – a welcome guest. He had been usurped by Philip of Spain and his attempts to regain his throne were a thorn in the Spaniard’s side. His courtiers travelled widely and were seen as a useful addition to English intelligence networks. His planned return home would be accompanied, he promised, by a popular uprising and, once restored to power, he would open the fabulous wealth of the Portuguese East Indies to his English friends. None of this happened. His return to Portugal in ‘the Counter-Armada’ (1589) was a farce that cost Francis Drake and General Norris their reputations; the Royal purse and several leading courtiers including the Earl of Essex fortunes they could ill-afford. Even Dom Antonio’s most faithful courtiers turned out to be double agents secretly helping Spain and feathering their own nests. But at least the Prior of Crato offered England something positive – to begin with at least – and the legal entanglements he left behind when he fled to Paris never threatened the country’s security.

Unlike the Queen of Scots, of course. How surprising is it, even to our more ‘modern’ way of thinking, that, after Ridolfi’s plotting, the Rising of the Northern Lords, a pot-shot taken at her barge which wounded one of her bargemen, the plotting of Sir Francis Throckmorton, John Somerville, Dr. William Parry and Sir John Neville and their associates, all of whom planned her death, that those tasked with keeping Elizabeth alive and on the throne in spite of the Queen of Scots and her increasingly desperate supporters, might turn to a pre-emptive strike?

But how do you touch someone who is by definition beyond your legal reach? Fair enough, you can ask the man guarding her to kill her on the quiet, but when Sir Amyas Paulet, outraged, refused to do so, Francis Walsingham, Lord Burghley and their associates on the Council had to seek legal means.

The answer they seem to have come up with had three main stages: Stage one, you create a legal circumstance which pulls the independent queen within the reach of English law. Stage two, within that framework you create a specific law which threatens execution if it is broken, no matter who breaks it. Then, Stage three, you convince your no-longer quite so independent queen to break that law herself. Once that is achieved, you try her in a duly constituted court of law and, when she is found guilty by a jury of her peers (or as close as you can get without empaneling most of the crowned heads of Europe), you carry out the sentence as legally required. No ‘Crime’, has been committed, therefore, therefore, for no law has been violated – because the law has been adapted to accommodate the fatal act. But ‘The intentional killing of a human being (within the law but) with malice aforethought?’ Oh yes indeed. All in defense of the realm, of course. But whether that has been seen as an acceptable excuse has varied according to time, place, religion and especially, perhaps, nationality.

The first complication with the plan comes during stage one and is this: the Queen of Scots’ submission to English law has to be voluntary. Then, secondly, that voluntary submission must pass seamlessly and invisibly into the fatal statute and so into English law from the moment of its legal Commencement (not necessarily from the moment of the Royal Assent which can – and in this case did – come later). And lastly, the breaking of this fatal law must be sufficiently clear, egregious and indefensible to stand up in the duly constituted court of law mentioned above.

The first element of the plan was ‘The Bond of Association’ (1584) – a seeming reaction to the assassination of William the Silent, Duke of Orange. It was a voluntary document printed in thousands of copies which leading figures were given the opportunity to sign as a gesture of love and support for Elizabeth. The document committed anyone who signed it to hunt down and execute any person who attempted to usurp the throne (successfully or not), personally or through the agency of others, or who made an attempt on Elizabeth’s life (successfully or not, personally or through the agency of others). Thousands of loyal subjects of every social stratum signed it. Not to do so looked suspiciously like a declaration of intent actually to perform the forbidden actions. So the Queen of Scots had little choice but to sign it too.

Sure enough, within the year, the Act for the Preservation of the Queen’s Safety was drafted, codifying the contents of the Bond, passed through Parliament and commenced (23 November 1584). This stated that: It required a tribunal of at least 24 peers and privy councilors (who later constituted the jury at trial) to investigate “any open invasion or rebellion” in England, any attempt to injure Queen Elizabeth or any attempt to seize the throne. Any person found to be guilty, either through their own action or through that of others, was to be disabled from inheriting the throne, and was to be “pursued to death by all the Queen’s subjects.” ‘Death’ here, would vary in form according to the rank of the accused (ie: beheading; hanging, drawing and quartering etc., the crime itself being treated as High Treason under the Treason Acts of 1537 and 1543 – cf. Essex and his associates 1601.)

And so the secret search began for a group of individuals who might be persuaded to put together a plot to free the Queen of Scots which was convincing enough to be believed by her; which seemed to offer the desperate woman a realistic chance of escape, and which turned around plans to cause both an invasion and a rebellion which would be triggered not just by an attempt to ‘injure’ Elizabeth but to assassinate her outright.

Three elements were brought together by Walsingham’s secret service: a priest, John Ballard, who was the engine of the plot; a soldier, John Savage, who had sworn to kill Elizabeth; and a courtier with access to the Queen, both personal or through his friends. His name was Sir Anthony Babington.

In order to obtain proof that Mary was in breach of the Act, something in writing which demonstrated her agreement with a planned invasion and/or uprising was needed and, to truly seal her fate, either her direction that Elizabeth be killed or (theoretically) her omission to stop such an action when made aware of it. A communication system was set up between Mary and Babington which both believed to be absolutely secure but was at every stage open to Walsingham and his spies (the infamous beer barrels) and, sure enough Babington duly wrote describing his plan for invasion and insurrection, Mary’s rescue (himself and 20 friends) and Elizabeth’s murder (by ‘six gentlemen’). Mary’s reply advised about organising both invasion and insurrection, advised further how best to go about rescuing her and mentioned the ‘six gentlemen’ twice in such a manner as made plain she knew what their mission really was. Fearful that this was not quite enough to convince the Queen (rather than the court; this would be, after all, the first ever judicial execution of a reigning monarch and a dangerous precedent indeed) Walsingham had an extra section forged in which Mary seemingly demanded the personal details of the ‘six gentlemen’. But before things could proceed, Father Ballard was arrested and the plotters all fled.

Mary was tried before the special court comprising a jury of 30 councillors, judges, and peers, at Fotheringhay in October. She defended herself (those accused of treason are not permitted defence attorneys) but was found guilty of treason under the Act For The Preservation of the Queen’s Safety. The forged section was not brought before the court but the rest of the letter and the evidence of her private secretaries was. The trial documents were brought to London for perusal by the Queen and Council before she was formally found guilty on 25 October 1586. Elizabeth was hesitant to sign the execution warrant (with good reason – the Armada was only one of the results of Mary’s death) but she did so on 1st February, the warrant having been ‘hidden’ in a pile of unimportant papers that she didn’t bother to read. Her secretary William Davison took the warrant to Lord Burghley who convened a meeting of the Council without the Queen’s knowledge and sent the warrant north to Fotheringhay at once. Mary was beheaded soon after 10am on the morning of Wednesday, 8th February 1587. William Davidson spent a year in the Tower of London while Elizabeth loudly declared her hands clean of the whole affair. Walsingham and Burghley, the authors of the plan, received no punishment at all.

Shadow of a Queen, Peter Tonkin’s novel charting the downfall and execution of the Queen of Scots from the point of view of English intelligence agent Robert Poley, is published 3rd October 2025 by Sharpe Books.