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THE STRANGE TRIAL OF SIR NICHOLAS THROCSMORTON. With an account of what befell the first jury to oppose courageously the syncophant justice of Tudor days. The publication 'of the treaty of marriage between Mary Tudor and Philip of Spain, in 1554, brought about great dis- content in England, many of the Queen's subjects fearing the establishment there of a Spanish Inquisition and a repetition of Spanish tyranny, such as had been imposed upon Naples, Sicily and the Duchy of Milan. Nor were these fears entertained alone by the Protestants. Sir Thomas Wyat, a Roman Catholic, undertook the raising of a rebellion for the express purpose of saving the Crown from this dominance of a foreign yoke. He was almost successful in taking the Tower of London and cap- turing the Queen. The affair, however, was ill-handled, and just as Wyat and his 6000 followers had triumphantly marched through the Strand and entered the City by Ludgate, the gate was shut behind him, and he found himself cut off from his cannon which had been left under a guard in Hyde Park. He had planned upon receiving the co-operation of the Royal troops, and had purposely left his artillery behind. But his overconfi- dence ruined the adventure at the very moment when it seemed to be crowned with success. He was opposed by the Royal troops, and, having no -cannon with which to fight, and no means of retiring, he lost courage and gave himself up, his men being taken at pleasure and imprisoned. Wyat was executed on April 11, 1554, and high treason proceedings were launched against others who were suspected of being implicated with him in the rebellion. Amongst these was Sir Nicholas Throckmorton, who was brought to trial at the Guildhall on April 17th, 1554, indicted, amongst other counts, for that he did "falsly and traiterously levy war against the Queen within her realm; was adherent to the Queen's enemies, giving to them aid and comfort ; and did conspire .and intend to depose and deprive the Queen of her royal estate, and so finally destroy her." This very extraordinary trial was featured by several re- markable incidents, the chief of which, in importance to the Anglo-Saxon race, was the independent action of the jury in acquitting the prisoner, to the great consternation of the judges

I 1 How. St. Tr. 869.

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and prosecuting attorneys, who theretofore always had secured verdicts according to the wishes of the Crown by the aid of intimidation and packing of juries and witnesses. Justice as we conceive it was, in those times, a figment only, and trials held upon persons charged with treason were merely a mockery to give a gesture of legality to the hand-picked judgments which sent unconvicted prisoners to the gallows and permitted the unspeakable barbarities which usually accompanied the execu- .2tions Sir Nicholas Throckmorton, therefore, stood in imminent peril. The assistance of Counsel learned in the law was, at that time, denied to a prisoner charged with high treason, and the accused was cast entirely upon his own resources. The events revealed that Throckmorton was possessed of no mean talents, and he brought to bear upon his defence the whole of his ready wit and eloquence founded upon his experience in Parliament, where he had sat since 1545. He knew that the Court (or the Commissioners, as the judicial body was then styled) which he faced was corrupt, and he sensed, before ever a word of evidence was uttered, that the judges were intent only upon his death. There was but one hope in that desolate sea of despair,-the chance, and the very short chance, that the jury might be per- suaded to heed the evidence and ignore the Bench. Leadership in that direction was vitally necessary, and the adroit manner with which Throckmorton contrived to place himself under the protection of the jury, the while he condemned and derided his merciless prosecutors, was a masterly effort. The jury was not yet empanelled, but those from whom it was to be selected were in court, and it became important to impress upon the spectators that justice presided in figurehead only. Accordingly, Sir Nicholas sparred with the Court for an opening by refusing to plead, and the challenge for justice which rang in his rejoinders to the mock judges exhibited a courage and a sense of innocence at once impressive. Here was an unaided accused whose end, by all the rules and regulations of the time, was merely a matter of course. There he stood upon the highway of death, determined to defeat his accusers. The contest was on and the excitement already keen. He argued against the validity of the indictment. 2 The meanings attached to the brutalities of execution against a traitor were these: (1) To be drawn to execution, "forasmuch as he is not worthy to walk upon the earth"; (2) his privy members cut off, "which shews that his issue is disinherited with corruption of blood" ; (3) his bowels burned, "because in them he hatched treason" ; (4) beheaded and dis- membered, "because his life and limbs are forfeited."

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"You must first pleadwhether you be guilty or no," required the Lord Chief Justice, Bromley. , This was a peculiar situation. Obviously the trial could not proceed without a plea of some kind, and, while Throck- morton knew a plea of "not .guilty" could be entered by the Court for him, he seized the opportunity to impress the jurymen with the fact that he was denied the right to object to the indictment. So he left the Court in the air with the retort- "If that be your order and law, judge according to it ! " Sir Nicholas Hare, the Master of the Rolls, quietly endea- vored to explain to the prisoner that "You must first answer to that matter wherewith you are charged, and then you may talk at your pleasure." "But things spoken out of place were as good as not spoken," replied the accused. Uninured to anything but his own will on the bench, the Lord Chief Justice again broke in : "These be but delays to spend time. Answer as the law willeth you!" To which came this unexpected and stinging rebuff from the prisoner : . "Pray make not too much haste with me, neither think not long for your dinner, for my case requireth leisure, and you have well dined when you have done justice truly. Christ said `Blessed are they that hunger and thirst for righteousness' .114 This apposite retort . may be conceived to have upset the Chief Justice, for it drew from him the undignified remark that he could forbear his dinner as well as the prisoner, and perhaps cared as little about it as he did. Which sentiment was echoed by the Earl of Shrewsbury, who petulantly exclaimed "Come you hither to check-us, Throckmorton? We will not be so used. No, no ; I for my part have forborn my breakfast, dinner and supper to serve the Queen." 15 Finally Sir H. Southwell called upon Throckmorton to cease teaching the judges -their duty. Whereupon, satisfied with the first round, Throckmorton pleaded "not guilty." Crown Clerk Sendall then inquired of the accused how he would be tried. To which he naively replied : "Shall I be tried as I would, or as I should?" 3 1 How. St. Tr. 870. 4 1 How. St. Tr. 870. s Id. 870.

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"You shall be tried as the law will ! " crushed the Chief Justice. s "Is that your law for me?", responded Throckmorton, ,It is not as I would. But since you will have it so, I do desire to be tried by faithful and just men which more fear God than the world." A compliment to his jury which, as the sequel shows, was not unmerited. The petit jury was then empanelled, during which time Sir Roger Chomeley discussed. with the Attorney-General, Edward Griffin, the desirability of challenging some jurors who might be "too pitiful." The participation in such a practice by a member of the Court was, to say the least, inexcusable, and brought forth from Throckmorton this reproof "Ah, ah, Master Chomeley, will this foul packing never be left ? "' Master Chomeley, however, denied the accusation, and with mocked innocence, complained that, really, the prisoner went out of his way to pick a quarrel with him. Sergeant Stanford' now undertook to question the accused, and the fact that Throckmorton was called upon to give evidence against himself is indicative of the oppressive state of the practice then in vogue. , Sir Nicholas admitted that he had bad conversation with one Winter, who was supposed to have been in close touch with Wyat. "And you devised together of the taking of the Tower of London ? " "No, I did not; so prove it!" challenged Throckmorton.lo 6 Id. 871 . 7 Id. 871. 8 Sergeant-at-law was the title formerly given to those barristers who had attained the highest rank at the bar. A limited number of these, again, were called King's (or Queen's) sergeants, and enjoyed the privilege of being summoned to Parliament. An accused person enjoyed no exemption from interrogation, the pre- sumption at that period being against his innocence . And in jury trials he was subjected to the further prejudice that he was not allowed to give evidence on oath. This "necessitous" practice was adopted to relieve the conscience of those jurymen who regarded an oath as binding, and who, therefore, would refuse to convict upon a denial on oath by the accused . He was accordingly stripped of this "too easy" means of defence, and was tried by the jury's oath, not by his own. The first recorded instance in a jury trial of an oath being tendered to an accused person charged with a felony was in the case of Rex v. Udall (1 How. St. Tr. 1282), in which the Court said : "We offer you that favour which never any indicted of felony had before,-swear that you did it not, and it shall suffice . 10 1 How. St. Tr. 873.

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"Yes sir," responded Stanford, "you met with Winter sundry times, as shall appear, and in sundry places." Throckmorton granted so much, but claimed it proved no offence as charged in the indictment. " Very well " ? ; Stanford would read Winter's confession. Further evidence of the illogical and prejudicial state of the then law as affecting the accused appears in the. practice which then prevailed of admitting in evidence the written confession of someone not present for cross-examination. - However, Winter's confession was by no means damaging. On the contrary, it disclosed'that, although Throckmorton had known from Winter of Wyat's plan to take the Tower, Throck- morton had disapproved of them, and was glad to know that Wyat had changed his proposal to capture the Tower. Throck- morton took instant advantage of this disclosure and aptly said "Though Wyat thought meet to attempt so dangerous an enterprise, and that Winter informed me of it, you cannot extend Wyat's devices to be mine, and .to bring me within the compass of treason."" "But," interposed the Master of the' Rôlls, "how say you to this, that Wyat and you had conference together sundry times at Winter's house and in other places ? '-' 12 - The reply of the accused was in the nature of a boomerang "Why was it not as lawful for me to confer with Wyat as with you or any other man_ ? I then knew no more by Wyat, than by any other, and . . - . . . the last day I did talk with Wyat I saw my Lord of Arundel with other noblemen and gentlemen talk with him familiarly in the chamber of presence. I confess I did xriislike the Queen's marriage with Spain and also the coming of the Spaniards hither, and then me thought I had reason to do so, for I did learn the reasons of my misliking of you, Master Hare, Master Southwell and others in the parliament house, . . . . , and did learn my mis- liking of those matters by many sundry reasons amongst you." 13 This was pertinent argument: The very men who were trying the prisoner had themselves, in Parliament, declaimed against the Queen's marriage. Stanford then taxed Throckmorton for telling Winter that Wyat had changed his mind for taking the Tower, which, he 11 1 How. St. Tr. 874. 12 Id. 874. 13 Id. 875.

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argued, proved that Throckmorton was privy to Wyat's mind in all his devices and treasons ! "What, Mr. Sergeant," was the sturdy reply, "doth this prove against me, that I knew Wyat did repent him of an evil devised enterprise? Is it to know Wyat's repentance, sin?" 14 Obviously this foundationless prosecution was making no headway against the prisoner's ably stubborn defence; so Sergeant Dyer" proposed to adduce further proof in a written confession of one Croftes. But Throckmorton was on his toes this time to object to the introduction of such evidence, pointing out that Croftes was alive and in England and should be produced for cross-examination. "Marry, sir," said Stanford, "now cometh the proof of your treason : you shall hear what Cuthbert Vaughan sayeth against you." Vaughan was in court, and his confession being read he took the stand to confirm that Throckmorton had conspired to raise a force of men. II The Chief Justice then suggested to the accused that it would be better for him, in the face of this evidence, to give up and confess. Throckmorton, however, refused to be convicted upon the evidence of Vaughan, a man already condemned for treason, and whose evidence, he claimed, was given to curry favor with the prosecution in the hope of avoiding death. 17 He showed that Vaughan's execution had been "many times respited" and that his evidence was worthless. The prosecution now produced several other confessions, against which Throckmorton begged that the persons mentioned therein be called as witnesses, in order that he might, by cross examination, prove the falsity of their written allegations. He was, however, denied this privilege. In desperation he turned to survey the spectators, and, as he glanced over the assembly, he espied one John Fitzwilliam in the body of the hall and beckoned him forward. Fitzwilliam approached to testify, but the Queen's Attorney-General objected : "I pray you, my lords," he said, "suffer him not to be sworn, neither to speak; we have nothing to do with him." 18 But, interposed Throckmorton, "why be yet not so well contented to hear truth for me, as untruth against me?" 11 Id. 875. is Sir James Dyer, who afterwards became Lord Chief Justice;of England . 16 1 How. St. Tr. 876. 17 Turning King's evidence. This Cuthbert Vaughan had joined Wyat's rebellion, having marched upon Westminster with two companies of foot. 18 1 How. St. Tr. 886.

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His protestation was of no avail. Lord Hare demanded of Fitzwilliam who had commanded him to speak. "I called him," replied Throckmorton, "and do humbly desire that he may speak and be heard as well as Vaughan, or else I am not indifferently used." 19 "Go you ways, Fitzwilliam," threatened Sir R. Southwell, ignoring the accused, "the Court hath nothing to do with you; peradventure you would not be so ready in a good cause." And so the abashed Fitzwilliam left the hall. But this attempted travesty upon justice was immediately foiled by Throckmorton appealing to the jury "I trust you of the jury can perceive, it was not for anything he had to say against me; but contrarywise, that it was feared he would speak for me." This concluded the evidence. No witnesses having been heard for the defence, the Attorney-General chivalrously kept his seat, and Throckmorton addressed the jury. He marshalled the facts in perfect manner, and then proceeded to refer to certain statutes which he proposed to show were a bar to the proceedings raised against him; and he requested that the statutes be read for. his benefit. The Chief Justice, however, curtly cut him off ; "No ; there shall be no books brought at your desire,, we know the law sufficiently without book.1120 Throckmorton persisted . How could he be brought to trial by the law and yet not be shown the law? But the Court, was adamant, and the Attorney-General prayed the Chief Justice to charge the jury as otherwise "the accused will keep you here all day. "21 Being asked if he had anything more to say, Throckmorton continued his address to the jury, intimating that, since he was to be denied the production of the books, he would hazard a guess at what they contained and endeavor to explain his points. This he seems to have done very well, the Chief Justice exclaim- ing querulously "Why do not you of the Queen's learned counsel answer him? "22

is 1 How. St. Tr. 885. 20 Id. 887. This ruling was only partially fair. While the Court was correct in stopping the accused from reading law to the jury, the Court should have reserved him the right to address it upon the subject. 21 1 How. St. Tr. 888.

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The only answer came from Stanford, who intimated that, had he known the accused was so well furnished with book cases, he would have been better provided for him.' ,' Throckmorton, in complete mastery of the situation, con- tinued to outline the law, answering the interjections of the Court and the Attorney-General to their great discomfiture. Finally the Attorney-General demanded that the prisoner be stopped. "I pray you, my Lords," he entreated, "suffer not the prisoner to use the Queen's learned counsel thus : I was never interrupted thus in my life, nor I never knew any thus suffered to talk as this prisoner is suffered ; some of us will come no more at the bar, and we be thus handled."24 This pertinent intimation from the Attorney-General had its effect with the Chief Justice, who commanded the accused to cease. Throckmorton, however, was fighting for his life and did not propose to be put down. He pursued his arguments, until at length the Attorney-General cried out "Master Throckmorton, quiet yourself and it shall be the better for you." 2 $ "Master Attorney," replied the accused, "I am not so unquiet as you be, but because I am so tedious to you, and have long troubled this presence, it may please my Lord Chief Justice to repeat the evidence wherewith I am charged, and my answers to all the objections, if there be no other matter to lay against me." Bromley thereupon proceeded to charge the jury, but he craftily contrived to eliminate part of the prisoner's answers, and upon each occasion the alert Throckmorton prompted the memory of the Chief Justice, who was compelled, for decency's sake, to supply the omissions. The jury was then retired, but not before Throckmorton, alive to the evil conspiracies of the time, demanded that the Court do order, "that no person have access or conference with the jury, neither that any of the Queen's learned counsel be suffered to repair to them, or to talk with any of them, until

22 Id. 889. The somewhat curious anomaly whereby, although law may not be read to a jury by either of the opposing parties, it may never- theless be explained to them by way of argument, persists in modern practice . 23 Id. 892. 24 Id. 893. 26 Id. 897.

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they present themselves here in open court to- publish their verdict." 2 s This order was made -accordingly, and the Court adjourned until 3 p.m. Upon returning, they were compelled to wait until 5 o'clock before the jury had come to an agreement. The most disgraceful episode in this remarkable trial now occured,-the punishment of the jury for finding according to the evidence. The jury being seated and -asked whether they had agreed upon a verdict, answered "Yea." Being asked who should, speak for them, they intimated that their foreman, Whetstone, would do so. They were then com- manded to look upon the prisoner, who was required to hold up his hand. ' "How say you?" inquired the Crown Clerk, "is Master Throckmorton, Knight, there prisoner at the bar, guilty of the treasons whereof he hath been indicted and arraigned in manner and form,Yea or No?"27 To the stupefaction and chagrin of the Court, Whetstone replied, "No!" "How say you the rest of ye?" thundered the Lord Chief Justice, "is Whetstone's verdict all your verdicts?" And the whole jury answered, "Yea!" "Remember yourselves better," hinted Bromley. "Have you considered substantially the whole evidence . in sort, as it was declared and recited?" Then he added this neat suggestive threat : "The matter doth touch the Queen's highness, and 12 yourselves also, take good heed what you do.' $ The undaunted foreman replied, "My Lord, we have thor- oughly considered the evidence laid against the prisoner; and his answers to all these matters, and accordingly we have found him not guilty, agreeable to all our consciences." Throckmorton thereupon . demanded that he be acquitted. The judges consulted together as to how this unforseen situation could be met in the light of the verdict and their determination that the prisoner should not escape the rigor of the law. Throck- morton meanwhile continued to press that sentence of acquittal be pronounced and that he be discharged from custody. And so he was, in respect of the matter alleged in the indictment. 26 1 How. St. Tr. 898. 27 Id. 899. 29 1 How. St. Tr. 899.

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"Notwithstanding, however," added the Chief Justice, ad- dressing himself to Thomas Bridges, the lieutenant of the Tower, "take him with you again, for there are other matters to charge him with." 2 s So much for the accused, and now for the jury. The Attorney-General was indignant at what he termed a most strange acquittal, and he asked the Court that each of the jury be bound in a recognizance of £500 a piece to answer to such matters as they shall be charged with in the Queen's behalf, whensoever they shall be charged or called." 30 Upon this, Whetstone beseeched their Lordships not to molest the jury for discharging their consciences truly; that they were but poor merchants whose living depended upon their daily labours, and that a certain day be fixed for their presence, as otherwise some of them might be in foreign parts about their business. The whole twelve, however, were committed to prison, and on the 26th of the following October, proceedings were taken Afteragainst them in the Star Chamber3 l . investigation, the jurors were returned to prison, and the Sheriffs of London were instructed to take an inventory of the goods of each, and to seal up their doors. Subsequently, on November 10th, Whetstone, and two jurors named Lucar and Kightly were adjudged to pay £2000 each, and the remainder of the jurors 1000 marks each, to be paid within one fortnight. And so, records a court reporter of the period, "juries were deprived of the liberty of judging according to their consciences, and, instead of being governed by proofs, they were to examine how the Court stood affected to the prisoner, and by that deter- mine their verdicts. This rigor executed upon the jury was fatal to Sir John Throckmorton, who was found guilty upon the same evidence on which his brother had been acquitted ! "32 " Id. 900. 31 Id. 900. 31 The "Camera Stellata", so called from the stars which decorated the roof of the chamber . This court was, in reality, a committee of the Privy Council . It was bound by no rules of law, and torture was frequently applied to secure confessions . Hence the odium attaching to the term "Star Chamber Proceedings." The height of its infamous notoriety for barbarous punishments was reached under the reign of Charles I., and was a contribut- ing factor towards that monarch's downfall. The court was abolished by statute in 1641. 32 1 How. St. Tr. 902. Nevertheless, this was the beginning of the end of "directed" jury trials, although the common people of England had to fight for upward of one hundred years afterwards to be finally rid of the evil dominance of corrupt judges. The culmination was achieved at the trial of William Penn, which forms an interesting study in the evolution of the modern trial by jury.

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Throckmorton was detained in the Tower until the following year. However, he contrived to regain the good graces of Queen Mary and was released: After the accession of Elizabeth,he was returned to court favour, becoming Chancellor of the Exchequer and afterwards Ambassador to France. His daughter, Elizabeth, was taken into the Queen's service as a maid of honour. This daughter afterwards became the wife of Sir Walter Raleigh, whose trial for high treason, diabolical sentence of death, and execution fifteen years after his trial, will be recounted in a subsequent issue.

C. F. DAVIE. Duncan, S.C.