and having been arraigned upon the same, hath pleaded 'Not guilty,' and put himself upon his Peers: now the Lords, his Peers, upon consideration of the evidence, have found him guilty. I am therefore most humbly to pray your Grace for judgment against him for the Queen's Majesty."

Then the Lord Steward said thus :-" Thomas, Duke of Norfolk, the Lords, your Peers, having now found you guilty, what have you to say why I may not proceed to judgment?"

Duke. The Lord's will be done: God be judge between me and mine accusers."

Then the Lord High Steward, with tears in his eyes, pronounced judgment in these words: "Thomas, Duke of Norfolk, you have been indicted of high treason, and having been arraigned, you have pleaded not guilty, and put yourself upon your Peers; and my Lords, your Peers, have found you guilty: Therefore the Court doth award that you shall be taken from hence to the Tower of London, and from thence be drawn through the midst of London to Tyburn; and there you shall be hanged, till you be half dead, and being alive you shall be cut down quick, your bowels shall be taken forth of your body, and burnt before your face; your head shall be smitten off, and your body shall be divided into four quarters; your head and quarters to be set up where it shall please the Queen's Majesty to appoint; and the Lord have mercy upon your soul!"

Then the Duke said, "This, my Lord, is the judgment of a traitor; but," said he, striking himself hard upon the breast, "I am a true man to God and the Queen, as any that liveth, and always have been so. I do not now desire to live, I will not desire any of your lordships to make petition for my life; I am at a point. And, my Lords, as you have banished me from your company, I trust shortly to be in a better company. This only I beseech you, my Lords, to be humble suitors to the Queen's Majesty, that it will please her Majesty to be good to my poor orphan children, and to take order for the payment of my debts, and to have some consideration of my poor servants. God knows how true a heart I bear to her Majesty, and to my country, whatsoever

this day hath been falsely objected against me. Farewell, my Lords!" This he spake with some passion; otherwise truly he conducted himself all the day long very modestly and wisely, as far as his cause would serve him.

Then the Lieutenant was commanded to avoid his prisoner; which was done.

Then the Serjeant made an "O Yes," and proclaimed thus: "My Lord's Grace, the Queen's Commissioner, High Steward of England, chargeth all persons to depart in God's peace and the Queen's, and hath dissolved his commission."

And therewith the Lord Steward, standing up before his chair, broke his rod in the midst, and the people cried, "God save the Queen."

The trial lasted from eight o'clock in the morning till past eight at night. This unusual length of time arose from the multitude of matters to be proved, and also because the Duke was permitted with all favour to speak as much and when he would.

REMARKS.

THE Court of the Lord High Steward of England, which was the tribunal before which the Duke of Norfolk was tried, is the proper court for the trial of peers of the realm indicted during the recess of Parliament. It differs both in its constitution and its jurisdiction from the Court of our Lord the King in Parliament, which is the proper tribunal for the trial of a peer during the actual sitting of Parliament. In trials in the Court of the Lord High Steward, that officer, who for some centuries past has ceased to hold his office permanently, and is specially appointed by the Crown on each particular occasion, is the sole Judge of the Court. It is by his warrant that the prisoner is brought to the bar, and by his

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authority the indictment is removed from the inferior jurisdiction before which the bill is found. It is also his duty to summon such a number of peers as he thinks proper for the trial of the prisoner. In former times the number of lords' triers was arbitrary, and depended entirely upon the discretion of the Lord High Steward: but by a statute* passed soon after the Revolution in 1688, it was enacted, "that, upon every trial of a peer for treason or misprision, all the peers who have a right to sit and vote in Parliament, shall be summoned, at least twenty days before such trial, to appear and vote therein." On the other hand, when a trial of a peer takes place in the Court of our Lord the King in Parliament, no selection of lords' triers is made, but the collective body of the peers are the judges both of the law and fact, deciding by a majority of votes; and though a Lord High Steward is appointed on those occasions also, he is considered merely as the chairman of the Court, or temporary speaker of the house, and votes with the other peers in right of his peerage, on the question of "Guilty or Not Guilty," as well as on collateral points.

The Court of the Lord High Steward, as it existed previously to the statute of William III., was an anomaly in our judicial proceedings; and a peer who was charged with a political offence had less probability of a fair trial before such a tribunal, than a commoner tried by a jury of the country in the ordinary way. In the first place, the Judge who presided at the trial, and from whose authority there was no appeal, was appointed by the Crown, the immediate prosecutor, for the express and exclusive purpose of trying each particular case; and this, too, after the prisoner had been known and ascertained. This Judge had an unrestrained discretion to sum

* 7 William III., c. 3.

mon such and so many" peers to be triers as he thought proper, whom the prisoner had no right to challenge; and lastly, the verdict of the lords was not required to be unanimous, but was decided by a majority of voices. Under these circumstances, it is not surprising to find instances in history in which peers upon their arraignment have desired to waive their privilege, and to be tried by an ordinary jury.

There is no appearance of any peculiar injustice on the part of the government, or the Lord High Steward, in the trial of the Duke of Norfolk: twentysix peers were summoned, and, in general, as far as can now be ascertained, they seem to have been fairly and indifferently chosen; amongst them, however, we find several members of Elizabeth's Privy Council, including Lord Burleigh, who had been most active in arranging the prosecution, and also the Earl of Leicester, who had originally excited Norfolk to attempt a marriage with the Scottish Queen*, and had himself signed the letter to Mary, soliciting her acquiescence in the project. There can be no doubt that the nomination of persons so circumstanced to decide on a capital charge was a gross indecency; but this is probably to be ascribed rather to the character of the times, and the imperfect notions which then prevailed respecting the administration of justice, than to partiality in the conduct of this particular prosecution.

The case against the Duke of Norfolk was composed almost entirely of the same unsatisfactory evidence which was produced on the trial of Sir Nicholas Throckmorton, viz. the Confessions and Declarations of absent persons, most of them prisoners in the Tower upon similar charges, and extorted in some instances by torture, and in almost *See p. 177, note,

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all by the fear of the rack. There is now no doubt that Baily and Bannister were actually placed upon the rack. Barker was told what Bannister had suffered, and threatened with the same treatment; and when the Bishop of Rosse claimed to be excused from answering on the ground of his privilege of an ambassador, Lord Burleigh cut him short by saying that he must answer or be put upon the rack*" We may here remark that the production of the statements of the Bishop of Rosse on the trial was a breach of good faith; for in order to induce him in the first instance to confess, he was told that his Depositions were merely required to satisfy the Queen's mind, and should not be used against any man; and when Dr. Wilson, the Master of the Requests, came to desire him to be present, and give his evidence orally at the trial, he peremptorily refused, saying, I never conferred with the Duke myself in any of these matters, but only by his servants, nor yet heard him speak one word at any time against his duty to his prince and country; and if I shall be forced to be present, I will publicly profess before the whole nobility that he never opened his mouth maliciously or traitorously against the Queen or the Realm †." The only witness personally produced on the trial was Richard Candish; who proved nothing material against the prisoner, but upon whom, as an agent employed by the Earl of Leicester to draw the Duke into his net, it was probably supposed that reliance could be placed as a witness for the Crown. The Duke repeatedly required, in the course of the trial, that the witnesses should be produced openly before the peers to give their evidence; but though most of them were confined in the Tower, and might have been produced as readily as Candish, * Anderson's Collections, vol. iii. pp. 196-196. † Ibid. 229-230.