Sir N. T. I pray you, my Lord Chief Justice, call to your good remembrance, that in the self-same case of the Seal, Judge Spelman, a grave and well-learned man, since that time, would not condemn the offender, but censured the former judgment by your Lordship last cited, as erroneous.

Stamford. If I had thought you were so well furnished with book cases, I would have come better prepared for you.

Sir N. T. I have nothing but what I chiefly learned of you, Master Serjeant, and others my masters of the law, in the Parliament-House, and therefore I may say with the prophet, salutem ex inimicis nostris.

Southwell. You have a very good memory.

Attorney-General. If the prisoner may after this manner avoid his treasons, the Queen's person will be in great danger; for Jack Cade, the blacksmith, and divers other traitors, sometimes urged the law in their behalf, and at other times alleged they intended the King no harm, but his Council; in the same manner as Wyatt, the Duke of Suffolk, and others did against the Spaniards, when there were no Spaniards within the realm. The Duke and his associates misunderstood the law, as you do; though at last they confessed their ignorance and submitted; and it would be your best way to do so too

Sir N. T. As to Cade and his adherents, I am not so well acquainted with their treasons as you are; but I have read in the Chronicle, that they took the field with a force against the King, which was a manifest overt how dangerous it is for any to report a case by the ear, specially concerning treason, unless he had advisedly read the record; for, as I take it, the misreport of this case hath hatched errors; and he mistook the judgment, if it had been high treason, for then it should have been drawn, hanged, and quartered." He then cites a case which occurred in the 37 Henry VIII., and which was, in all pro bability, that alluded to in Throckmorton's ready answer to the Chief Justice, as it appears from the Chronica Juridicialia' that there was, at that time, a Judge of the King's Bench named Spelman. In the latter case the doctrine of the former was, as Throckmorton states, overruled by the Judges.

act. As for the Duke of Suffolk's doings, they appertain not to me; and though you compare my speech against the Spaniards with the Duke's actions, who assembled a force in arms, it is evident that they differ much. I am sorry I should aggravate any other man's actions, but it is necessary for my own defence, and therefore I hope nobody will think the worse of me for it; God forbid that words and actions should be thus confounded!

Attorney-General. Sir William Stanley used the same shift the prisoner useth now; he said he did not levy war against King Henry VII., but said to the Duke of Buckingham, that in a good quarrel he would aid him with five hundred men; and yet Stanley was attainted for these words, who, as all the world knoweth, had before that time very truly and faithfully served the King

Sir N. T. I pray you, Mr. Attorney, do not conclude me by blind contraries; whether you rightly state Stanley's case or not, I know not, but admit it to be as you say, what doth it prove against me? I promised no aid to Wyatt nor any other person; the Duke of Buckingham levied war against the King, with whom, as you say, Stanley was a confederate in so doing.

Attorney-General. I pray you, my Lords, suffer not the prisoner to use her Majesty's learned Counsel thus: I was never thus interrupted in my life, neither have I ever known any suffered to talk as this prisoner is suffered; some of us will come no more to the bar if we are thus used.

Bromley, C. J. Throckmorton, you must suffer the Queen's Counsel to speak, or else we must take order with you; you have had leave to talk at your pleasure.

Hare. It is proved that you talked with Wyatt against the coming of the Spaniards, and devised how to interrupt their arrival, and also promised to do what you could against them; whereupon Wyatt being encouraged by you, levied a force and made war against the Queen's royal person.

Sir N. T. It was neither treason nor procurement of treason, to talk against the coming of the Spaniards into

*See Howell's State Trials, vol. i. p. 277.

this kingdom; neither was it treason for me to say I would prevent their coming as much as I could, understanding me rightly as I meant it; nay, though you would extend it to the worst, they were but words, and no treason, as the law stands at this day. As for Wyatt's doings, they do not affect me, for he cleared me at his death, when it was no time to speak falsely.

Bromley, C.J. The Queen's learned Counsel, as you have heard, have cited several cases, by which it appears that procurement which appeared no otherwise than by words, which you would make to be nothing, has for a long time, and by sundry well-learned men in the laws, been adjudged treason; and therefore your procurement being so evident as it is, we may justly say it was treason, because Wyatt did a traitorous act.

Sir N. T. As to the precedents alleged against me, I have recited as many for me. And I would, my Lord Chief Justice, that you would incline your judgments rather after the example of your honourable predecessors, Justice Markham and others, who hating corrupt judgments, gave their opinions directly and sincerely according to law and principle, than of those who, by deviating from law and truth, did judge corruptly, maliciously, and partially.

Bromley. C. J. Judge Markham had reason for what he did; for it appeared that a merchant of London was arraigned and falsely accused of treason, for compassing and imagining the King's death; he said he would make his son heir to the Crown;' but the merchant meant it of a house in Cheapside, at the sign of the Crown; but your case is not so.

Sir N. T. My case is different, I grant, but especially because I have not such a Judge; yet there is another reason for the restraining these your strange and extraordinary constructions; I mean, a proviso in the latter end of the statute of Edward III., having these words, 'Provided always, if any other case of supposed treason 'shall chance hereafter to come in question or trial before any justice, other than is in the said statute expressed, that then the justice shall forbear to adjudge the said case, till it be shewn to the Parliament, to try whether it should be treason or felony. Here you are restrained

by express words from adjudging any case that is not clearly mentioned before, until it be laid before the Parliament.

Portman, J. That proviso is, I understand, as referring to new cases which may come in trial; but the law always took the procurer to be a principal offender.

Sanders, J. In cases of treason the law always accounts all principals, and there are no accessaries, as in other offences; and therefore a man offending in treason, either by covert act or procurement, upon which an overt act hath ensued as in this case, is adjudged by the law a principal traitor.

Sir N. T. Methinks you adjudge procurement very hardly, beside the principle, and beside the good example of your best and most godly and learned predecessors, as I have partly declared; but notwithstanding this grievous racking and extending of the word procurement, I am not afraid of it, for it doth appear by no evidence that I procured any one whatsoever to attempt a traitorous act.

Stamford. The jury have to try whether it be so or not; let it weigh as it will.

Hare. I know no way so proper to procurement as words, and that makes sufficiently against you, as well by your own Confession, as other men's Depositions.

Sir N. T. To talk against the Queen's marriage with the Prince of Spain, and of the coming hither of the Spaniards, is not a procuring of treason to be committed; for then the whole Parliament-House, I mean the Commons, have procured treason*. But since you will make no difference between words and acts, I pray you remember a statute made in the reign of the late King Edward VI. my lord and master, which manifestly expresseth the distinction. The words are these: Whosoever doth compass or imagine to depose the King of his royal estate by open preaching, express words or sayings, shall, for the first offence, forfeit to the King all 'his goods and chattels, and suffer imprisonment at the King's pleasure; and for the second offence, shall for

He alludes here to the Petition of the House of Commons against the Spanish marriage: see ante p. 47.

feit to the King the whole profits of all his lands, &c.; and for the third offence, shall forfeit to the King's Majesty all his goods and chattels, and suffer during his life perpetual imprisonment. But whosoever, &c. by writing, cyphering, or act, &c. shall, for the first offence, be adjudged a traitor and suffer the pains of 'death.' Here you may see how the whole realm and all your judgments have before this understood words and acts to be manifestly different; and therefore the Parliament has appointed diversity of punishments, because they would not confound the true understanding of words and deeds; enacting, that to compass and imagine by words should be imprisonment, and by open facts, death.

Bromley, C. J. It is agreed by the whole bench, that the procurer and adherent be always deemed traitors, when a traitorous act has been done by any one in the same conspiracy; now there is apparent proof of your adhering to Wyatt, both by your own Confession and otherwise.

Sir N. T. Adhering and procuring are not the same thing; for the statute of Edward III. speaks of adhering, but not of procuring, and yet adhering ought not to be extended farther than to the Queen's enemies within her realm, for so the statute doth limit the meaning of it. Now Wyatt was not the Queen's enemy, neither was he so reputed when I talked with him last; and our conversing together implied no enmity, nor tended to any treason, or the procuring of treason. And therefore I pray you of the jury, to take notice, that though I argue the law, I insist upon my innocence as the best part of my defence.

Hare. Your adhering to the Queen's enemies within the realm is plainly proved; for Wyatt was the Queen's enemy within the realm*, as the whole realm knoweth ; and he confessed it both at his arraignment and at his death.

*This is a mis-statement of the law; Wyatt was no more than a rebellious subject of the Queen of England, and therefore not an enemy within the words of the Statute of Treasons: an enemy is always the subject of some foreign Prince, who owes no allegiance to the Crown of England. See Black, Com, vol. iv. p. 80.