Bromley, J. C. Why do not you, who are the Queen's learned counsel, answer him? I think, Throckmorton, you need not to see the statutes, for you have them pretty perfectly.

Stamford. You are mistaken, in concluding that all treasons are contained in the statute of the 25th of Edward III., for that statute is but a declaration of certain treasons, which were treasons before at the common law; even so there remain several other treasons at this day at the common law, which are not expressed by that statute, as the Judges can declare; nevertheless there is sufficient matter alleged and proved against you, to bring you within the compass of that same statute.

Sir N. T. I pray you, express those matters which bring me within the compass of the statute of Edward III., for the words are these: "and be attainted thereof by open deed, by people of like condition."

Bromley, C. J. Throckmorton, you deceive yourself, and mistake these words, "by people of their condition," for by them the law doth understand the discovering of your treason. For example: Wyatt and the other rebels, attainted for their treasons, already declare you to be his and their adherents, inasmuch as you have had, at several different times, conferences with him and them about the treason; so that Wyatt is now one of your condition, who, it is notorious to all the world, has openly committed a traitorous fact.

Sir N. T. By your leave, my Lord, this is a very strange and singular understanding; for I presume the law-makers understood, by the words "by people of their condition," the state and condition of those persons who should be on the inquest to try the party arraigned, guilty or not guilty, and not at all the detection of the offence by the act of another man, as you say; for what have I to do with Wyatt's actions, who was a hundred miles distant from him?

Attorney-General. Will you take upon yourself a greater knowledge of the law than the Judges? I doubt not but you of the jury will credit as becometh you.

Cholmley. As to the true meaning of these words,

"by people of their condition," my Lord Chief Justice hath declared the truth, for Wyatt was one of your condition; that is, in your conspiracy.

Hare. You do not deny, Throckmorton, but that there have been conferences and sending between you and Wyatt; he and Winter have owned the same, besides others so that it is plain, Wyatt may well be called one of your condition.

Sir N. T. Well, seeing you my Judges do rule the understanding of these words in the statute, "by people of their condition," thus strangely against me, I will not stand longer upon them; but where is any open deed proved against me, to which the treason can be particularly referred?

Bromley, C. J. If three or four do talk, devise, and conspire together of a traitorous act to be done, one of whom afterwards commits the treason, as Wyatt did, the law reputes it to be their act, and the act of every one of them; so that Wyatt's acts imply and argue your open deed; and thus the law doth term it and take it to be.

Sir N. T. These are marvellous expositions and wonderful implications, that another man's act, to which I was not privy, should be accounted mine; for Wyatt cleared me so far, that I knew nothing of his insurrection.

Hare. Yea, sir, but you were a principal procurer and contriver of Wyatt's rebellion, though you were not with him when he made the stir; and as my Lord here hath said, the law always adjudges him to be a traitor, who was privy to and doth procure treason, or doth excite any other man to commit treason, or a traitorous act, as you did Wyatt and others; so that the open deed of those who committed treason by your procurement shall be accounted your open deed. We have a common case in the law; if one by my procurement should disseise you of your land, the law holdeth us both wrongdoers, and gives you a remedy as well against the one as the other.

Sir N. T. For God's sake, my Lords, apply not such constructions against me; and though my present condition doth not move you, yet you would do well to consider your own station, and think that the same measure

you give to others, you yourselves shall assuredly receive the same again. The state of mortal life is such, that men know full little what hangeth over them. I put on, within these twelve months, such a mind, that I, most woeful wight! was as unlikely to stand here, as some of you who sit there. As to the case you last mentioned, and whereby you would conclude me, I remem→ ber to have learned of you, Master Hare*, and you, Master Stamford, in the Parliament-House, where you sat to make laws, and to explain and resolve doubts and ambiguities in the law, sincerely, and without partiality, -I say, I learned there of you, and others my masters of the law, this difference between such cases as you cited just now, and the statute whereby I am to be tried. There is a maxim or principle in law which ought not to be violated,-that no penal statute ought to be construed, expounded, extended, or wrested otherwise than the plain words and naked letter of it will warrant and signify. And amongst divers good and notable reasons by you, Master Stamford, there in the ParliamentHouse debated, for keeping that maxim inviolable, you said, "that considering the private affections of both princes and ministers of state in this kingdom, who were but men, and would and could err, it would be very dangerous to the subject to refer the construction and extension of penal statutes to any Judge's equity, as you termed it, which might, either by fear of the higher powers be seduced, or by ignorance and folly be abused." This is an answer to what has been said about procurement.

Bromley, C. J. Notwithstanding that principle, as you allege, and your preciseness in sticking to "the bare words of the statute, it doth appear, and remain of record in our learning, that several cases have been adjudged treason, without the express words of the statute, as the Queen's learned counsel there can declare.

Attorney-General. It doth appear that the prisoner did not only excite Wyatt, Carew, Rogers, and others,

*In Strype's Ecclesiastical Memorials, vol. ii. p. 319, it is said, "the statute of Edward VI., about the two witnesses in treason, was learnedly argued before it passed by the lawyers in the House, especially by Sir Nicholas Hare and Serjeant Stamford."

to commit their traitorous acts, as his open facts, proved by Vaughan's depositions, shew; but he also intended shortly after to associate himself with those traitors, for he designed to have departed westward with the Earl of Devonshire.

Sir N. T. My innocence in these respects, I trust, sufficiently appears by my former answers, notwithstanding the unjust accusation of the condemned man; but because the true understanding of the statute is in question, I say procurement, especially by words alone, is not within the compass of it, and that I have learnt, and do prove by the principle which I learnt of Master Stamford.

Stamford. Master Throckmorton, you and I may not agree at this time in the understanding of the law, for I am for the Queen, and you speak for yourself. The Judges must determine the matter.

Bromley, C. J. I am sure you know well enough, that the law adjudges him who procures another man to commit felony or murder, to be a felon or murderer; and, in case of treason, it has always been so taken and reputed.

Sir N. T. I do and must adhere to my innocence, for I procured no man to commit treason; but yet I desire, for my learning, to hear some case that has been so ruled since the law has been as it now is. I do confess, that when statutes existed against the procurer, adviser, aider, abettor, and the like, as there were in the time of King Henry VIII., such cruel constructions might lawfully be made, and procurers be brought within the reach of the law; but these statutes being repealed, you ought not now so to do. And as to the principal procurer in felony or murder, it is not the same as in treason; for the principal and accessaries in felony and murder are triable and punishable by the common law, and so, in such cases, the Judges may use their discretion, and extend the determination of the fault as they please; but it is otherwise in treason, the same being limited by statute law, which I say, and do affirm, is restrained from any Judge's construction by the maxim that I recited.

Stamford. Your Lordships know a case in Richard

III.'s time, wherein the procurer to counterfeit false money was adjudged a traitor, and the law was the same then as it is now.

Hare. Mr. Serjeant puts you in mind, Throckmorton, of a case before our time, where the law has been so taken, and yet the procurer was not expressed in the statute; but the law has been always so taken.

Sir N. T. I never studied the law, whereof I do much repent me; yet, I remember, whilst penal statutes were talked of in the Parliament-House, that you, the learned men of the House there, remembered some cases contrary to the last-mentioned; and if I misreport them, I pray you, help me. In the case urged about a procurer to counterfeit money, the procurer at one time was adjudged to be a felon, and at another time neither felon nor traitor. Thus you find some of your predecessors adjudged the procurer to be no traitor in the same case, but confined their judgment to the principal; though some others extended their constructions of the law much too far.

Bromley, C.J. I remember that a man in the time of Henry IV. taking off the Great Seal from one writing and affixing it to another, was adjudged a traitor; and yet the fact did not come within the express words of the statute of Edward III*. Several other like cases might be produced, if there was any occasion for them.

*The Case referred to by the Chief Justice was, no doubt, the extraordinary case mentioned by Sir Edward Coke, and thus reported by him in 3 Inst., p. 15:"2 H. 4. The taking of the Great Seal from one patent, and fixing it to a commission to gather money, &c. was adjudged to be high treason; the record of which case we have perused, and the effect thereof is this: The party was indicted generally for counterfeiting of the Great Seal, of which the jury found him not guilty; but it was found specially, that he took the Great Seal from one patent, and put it to the commission, and thereupon judgment was given that he should be drawn and hanged: which (whatsoever the offence was) ought not to have been given upon this verdict, the jury finding him not guilty of the offence alleged in the indictment;' and, besides, the judgment is such as is given in petit treason, and not in high treason." "Hereby," adds Coke, "it appeareth

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