the Queen's Serjeant; Mr. Gilbert Gerard, AttorneyGeneral; Mr. Thomas Bromley, Solicitor-General; and Mr. Thomas Wilbraham, the Attorney-General of the Court of Wards. On the right hand of the Queen's Counsel sat, by permission, Mr. W. Fleetwood, Recorder of London; and on their left hand were Mr. Thomas Norton (who wrote down this trial upon the scaffold), as also Garter King at Arms, two Gentlemen Ushers, and two Serjeants at Arms. A great number of people were collected in the Hall, which was kept by the KnightMarshal, and the Warden of the Fleet, and their servants with tip-staves.

*

About half an hour past eight in the morning the Lord High Steward stood up at his chair bare-headed, and the Gentleman Usher holding the white rod before him, the Serjeant at Arms made proclamation as follows:-" My Lord's Grace, the Queen's Majesty's Commissioner, High Steward of England, commandeth every man to keep silence, on pain of imprisonment, and to hear the Queen's Commission read;" which then was read by the Clerk of the Crown. Then the Lord High Steward sat down again in his chair, and the Gentleman Usher delivered him the white rod, which he held in his hand a great while; and after the indictment had been read, re-delivered it to the Gentleman Usher, who held it up before him all the time of the arraignment. Then were all the Lords called in order, by their names of baptism, and surnames of dignity, beginning at the most ancient, and every one severally, as he was called, stood up and signified his appearance.

After the Lords were called, the Duke was brought to the bar, the Lieutenant of the Tower leading him by the right hand, and Sir Peter Carew by the left, and so he was placed at the bar, they still holding him by the arms; the Chamberlain of the Tower, with the axe of the Tower, standing with the edge from the Duke and towards Sir Peter Carew.

The Duke, immediately on his coming to the bar, with *This Norton was the Queen's printer. He was in all probability employed by Lord Burleigh to report this trial. There are some curious letters from him to Burleigh at a later period, preserved in the Lansdowne Collection,

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a haughty look, perused with his countenance all the Lords, first those on the right hand of the Lord High Steward, and then those on the left hand. After the Lieutenant of the Tower had delivered his return, and a proclamation of silence had been made, the Clerk of the Crown called upon the Duke thus: Thomas, Duke of Norfolk, late of Kenning-hall in the county of Norfolk, hold up thy hand;" which the Duke did. Then the indictment was read, which was in substance as follows:-The general articles of treason were, that he had compassed and imagined the death of the Queen, that he had levied war against her within the realm, and that he had adhered to the Queen's public enemies. The overt acts charged were-1st, That against the express command of the Queen upon his allegiance, he endeavoured to marry the Queen of Scots, and supplied her with money, well knowing that she claimed a present title to the Crown of England. 2nd, That he sent sums of money to the Earls of Westmoreland and Northumberland, and other persons concerned in the rebellion in the North being the Queen's enemies, after they had been attainted of high treason, and had fled into Flanders. 3rd, That he despatched one Rudolphi to the Pope, to the King of Spain, and the Duke of Alva, in order to excite them to send a foreign army into England, to join with such a force as he, the Duke of Norfolk, might raise, for the purpose of making war against the Queen within the realm, with intent to depose her and to effect his own marriage with the Queen of Scots. 4th, That he relieved and comforted, with money and otherwise, the Lord Herries and other Scots, being the Queen's public enemies.

Clerk of the Crown. How sayest thou, Thomas Duke of Norfolk, art thou guilty of these treasons whereof thou art indicted, in manner and form as thou art thereof indicted, yea, or no?

Duke. May it please your Grace, and you the rest of my Lords here, I beseech you, if the law will permit it, that I may have counsel for the answering of this indictment.

Catline, C. J. My Lord, in case of high treason you cannot have counsel allowed; your Grace is to answer

to your own fact only, which yourself best know, and may without counsel sufficiently answer*.

Duke. These are the causes, my Lords, that move me to make this suit: I am hardly handled in this proceeding; I have had very short warning to provide an answer to so great a matter, not fourteen hours in all, both day

*The Chief-Justice here uses one of the reasons alleged by Staundford in his Pleas of the Crown, book ii. c. 63, for the denial. of Counsel to persons tried for treason or felony. "When a party," says Staundford, "is put to answer an indictment of treason or felony, he must answer it in his own person, and not by Attorney or Counsel learned: and then if his answer be such, that it exceedeth his skill in law to plead it, he shall have Counsel assigned to him, notwithstanding it be against the King. The plea of Not Guilty goeth to the fact only, which the party himself best knoweth, and therefore is best able to answer; and if his Counsel should deliver this plea for him, and defend it, they might be so wary in their speech (si covert in lour parlance), that it would occupy too long time before the truth would appear. Also if the party defendeth this plea himself, peradventure his conscience may urge him to utter the truth, or at least his carriage or countenance may give some indications of it; and if this should not happen, still his speech will be plain and simple, and thus the truth may be sooner discovered than by the artificial discourse of learned men: and these may be the causes why he shall not have Counsel." Staundford's book was published in 1557; and this passage is cited here to show the reasons given for the practice at that early period. Some of the later trials will afford a better opportunity for general observations upon the subject. In the mean time it may be remarked that Staundford's reason for the rule is at least as good as any of the others that have been assigned. In most of the early trials, and especially in those of Throckmorton and Norfolk, there are strong indications that the accused had the assistance of Counsel privately. It is difficult to conceive that Throckmorton could have composed his argument respecting the statutes of Edward VI. without such assistance. In the poetical memoir of him above cited, he is represented, in allusion to his trial, as speaking of some person" who lent him his law” on that occasion. The Duke of Norfolk also uses some technical arguments, and even cites Bracton in the course of his trial, which he could hardly have done unless assisted by a lawyer. It is, however, quite clear that Counsel were not admitted to state prisoners in the Tower; and therefore, if advice was given, it must have been done by writing.

and night. I have had short warning, and no books; neither book of Statutes, nor so much as a breviate of the Statutes. I am brought to fight without a weapon. I was told, before I came here, that I was indicted upon the statute of the 25th Edward III.; and now I do not hear the same statute recited, but am put at once to the whole herd of laws, not knowing unto which particularly I am to answer. The indictment containeth sundry points and circumstances which are not treasons in themselves, but from which it is meant to infer matter of treason against me: therefore, with reverence and humble submission, I am led to think I may have counsel. I remember one case in law, I think it is in the first year of King Henry VII. It is the case of one Humphrey Stafford, who was indicted for high treason, and had counsel allowed him. If the precedent in his case be such as may extend to me, I require it at your hands, that I may have counsel allowed to me: I show you the ground why I crave it, and refer me to your opinions therein.

Dyer, C. J. My Lord, that case of Stafford* was about pleading of sanctuary; he pleaded that he was taken out of sanctuary which belonged to the Abbot of Abingdon, by prescription; so the question was, whether he should be allowed sanctuary in that case, and with that form of pleading, which was matter of law: upon the matter of law he had counsel, but not upon the point or fact of high treason; all our books forbid allowing of counsel in the point of treason.

Duke. I must submit myself to your Lordships' opinions: but I beseech you, weigh what case I am in. I stand here before you for my life, lands, and goods, my children and my posterity, and that which I esteem most of all, for my honesty. I am an unlearned man, but I honour your learning and gravity: if I ask anything which I ought not to ask, or not in such words as I ought, I beseech you bear with me, and let me have that favour which the law allows me. If the law do not allow me

*The case of Stafford fully reported in the Year Book, 1 Henry VII. 22, 23, 24, and is referred to by Brooke in his Abridgement. Tit. Treason, pl. 18. The effect of it is accurately stated by Chief Justice Dyer in the text.

counsel, I must submit. Yet again, I beseech you, consider of me; my blood will ask vengeance if I be unjustly condemned. I have now to make another suit to you, my Lords the Judges: I beseech you, tell me, if my indictment be perfect and sufficient in law; and whether in whole, or in the parts, and in which parts, that I may know to what I should particularly answer.

Catline, C. J. My Lord, the sufficiency of your indictment hath been well debated and considered by us all; and we have all with one assent resolved that if the causes in the indictment expressed be true in fact, the indictment is wholly and in every part sufficient.

Duke. Are all the points treasons?

Catline, C. J. All the points are in law treasons, if the truth of the case be so in fact.

Duke. I will tell you what moveth me to ask you this: I have heard of the case of the Lord Scroope, in the time of Henry V.; he confessed the indictment, and yet traversed that the points thereof were treasons.

Catline, C. J. My Lord, he had judgment for treason upon that indictment, and was executed.

Clerk of the Crown. How sayest thou, Thomas Duke of Norfolk, art thou guilty of the treasons whereof thou art here indicted, in manner and form as thou art indicted, yea, or no?

Duke. Not guilty.

Clerk of the Crown. By whom wilt thou be tried? Duke. By God and my peers.

Duke. My Lords, although these heinous treasons objected against me, do much discourage me; yet I conceive no small comfort, to think under how gracious a Queen I live, which well appeareth by this her most gracious proceeding with me according to the course of law. Her Majesty seeks not my blood, but gives me the trial which the laws admit, and in the most favourable manner that I can require; for which I am most bounden to her Majesty. Now I have to make two suits : the one to your Grace, my Lord High Steward, that it may please you to extend to me your lawful favour, that I may have justice, and that I may not be overlaid with speeches; my memory was never good, it is now much worse than it was; sore troubles and cares, evil rest and