What can a five-hundred-year-old case from England tell us about the India of today?
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THROCKMORTON: A name I first encountered as I flipped through one of J. Hidayatullah’s opinion in a case of the 1960s, instantly captured my attention, for he was bestowed with great praises in those terse references by the great jurist.
As curiosity galloped, so did my research and I found myself at the cusp of a discovery— of a forgotten parliamentarian, a man who was tried for treason on a charge so obscure that it would put the new interpretation of ‘criminal conspiracy’ to shame, under a law that has miraculously managed to stay in the textbooks to this day, and to discharge a burden of proof which too has made its way into the most stringent of laws in our democracy.
So, who was this person? Why was his case so important as to have altered the course of legal history? Most importantly, which Indian case is a sordid reminder of this 500-year-old trial?
A marriage and a bloody rebellion
But before I delve any deeper, let us travel back in time to the Tudor Age, as we stand in attendance to the marriage taking place between the Tudor queen Mary I with the Spanish king Philip II in April of 1554.
A name I first encountered as I flipped through one of J. Hidayatullah’s opinion in a case of 1960s, instantly captured my attention, for he was bestowed with great praises in those terse references by the great jurist.
While rumour has it that the 38-year-old queen was instantly captivated by the portrait of King Philip II, drawn by Titian, the love was ill-received in England, where the councillors remained skeptical of a ‘foreign ruler’ being invited to be the new King of England.
As a consequence, a bloody rebellion ensued in early 1554, led by Thomas Wyatt along with a radical group of 6,000 followers, who were all so confident in the purity of their purpose, that they forgot to advance their cannons into the castle.
As a result, the cannons were confiscated and the advancement through the gates of London was also halted. Sir Thomas Wyatt was captured unceremoniously and imprisoned in the very Tower of London that he attempted to cross.
Later on, Thomas Wyatt was executed for having led a rebellion against the queen on April 11, 1554.
Thomas Wyatt reading out terms to Queen Mary immediately before the rebellion.Throckmorton’s tryst with the trial
People close to the queen, in order to score politically, did what they did best: on April 17, 1554, an astute parliamentarian Sir Nicholas Throckmorton, who was known to have shared rival political beliefs, was also swept in the larger conspiracy to commit ‘high treason’ and to conspire to cause regicide and take over the Tower of London.
Curiously enough, this law had a first-of-its-kind burden of proof: Throckmorton had to prove that he was innocent, for he was presumed to be guilty.
The trial was conducted by those who were loyal to the queen or in part feared that if they were to act contrary to the sovereign’s wishes, they might find themselves charged with the same conspiracy that they prosecuted.
This trial also had to be completed in record time, i.e., before the marriage of the royals could take place.
The rebellion.Also read: Experiments with truth, Part 2: Truth and dare in Bhima Koregaon
Trials of those days also had other procedures which were a mockery of the rule of law. An accused was not confronted with the incriminating material before he was put on trial. The trials were usually decided summarily, with a plea of guilt being recorded instantaneously, leaving the court to only determine sentencing, which in this case would have been death itself.
As a result, the cannons were confiscated and the advancement through the gates of London was also halted.
Another very interesting feature of the trials of this age was that if the offence was as heinous as conspiracy to commit regicide, or ‘waging war against the queen’ or ‘sedition’, the accused would have no right of legal representation.
The ‘courtesy’ of legal representation was not extended to such accused. While Chief Justice Bromley was very eager to quickly pass the verdict and retire to his chamber for dinner, in that instance, Throckmorton did something that nobody expected: he decided to argue his own case, and promptly returned a plea of not guilty.
While so doing, Throckmorton is said to have famously snapped at Chief Justice Bromley in the following words: “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.”
A jury was hurriedly constituted, and Throckmorton knew that his bleakest chance against a certain death was to prevail upon the jury to see that there was no case made against him.
Sir Nicholas Throckmorton.Of approvers and their cross-examination
In this trial of the century, the first witness was none other than Throckmorton himself, who was sworn in to depose against himself.
Constitutional scholars and criminal law practitioners might be miffed today with such a blatant disregard for the right against self-incrimination, but in Tudor England, self-incrimination and interrogation during trial were the norm.
Also read: Bhima Koregaon: The process continues to clot as punishment as another year passes by
A witness was produced, who deposed that Wyatt, who was the mastermind of the rebellion, had met with Throckmorton before giving effect to their nefarious design.
Throckmorton retorted that he had indeed met and conferred with Wyatt but so did other parliamentarians, including the ones prosecuting him.
His next argument debunked the entire charge of criminal conspiracy when he famously uttered: “For having met Wyatt, you cannot extend Wyatt’s devices to be mine, and to bring me within the compass of treason.”
Since the prosecution was not making much of a headway, they introduced an element of surprise: a statement (also known as a confession in those days) of a witness named Vaughan who confirmed that Throckmorton had raised an army of men against the queen. Curiously, while the statement was produced in the court, the witness was not.
The Chief Justice immediately asked Throckmorton to plead guilty, as this was all the proof necessary to hold him guilty. But Throckmorton asked for something which no one had asked before: the right to make the witness take the stand so that Throckmorton could cross-examine the witness.
Another very interesting feature of the trials of this age was that if the offence was as heinous as conspiracy to commit regicide, or ‘waging war against the queen’ or ‘sedition’, the accused would have no right of legal representation.
Throckmorton also argued that it would be absurd to be convicted upon the evidence of Vaughan, a man already condemned for treason, and whose evidence, he claimed, was given to curry favour with the prosecution in the hope of avoiding death.
Vaughan had been made an approver after a prolonged incarceration, so as to introduce incriminatory evidence against Throckmorton.
Shockingly, when Vaughan was produced as a witness, he was prevented from taking the stand or being cross-examined by Throckmorton by the very same prosecutors who had produced the statement in lieu of the presence of the witness.
Throckmorton by now appealed to the good sense of the jury with the following words: “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.”
The verdict
Throckmorton was even denied access to legal books to argue his case, thus, he argued most of the case from memory. As a result, he requested the Chief Justice to make one final procedural Order, which was to isolate the jury from being accessed by any person until they were to present themselves to read out the verdict in open court.
After deliberations, when the jury did resume at 5:00 p.m., the clerk asked the foreperson whether Sir Throckmorton had been found guilty.
The foreperson promptly returned the finding of ‘not guilty’. As a last desperate measure, the Chief Justice did something that had no parallel in the history of any legal system: He sentenced all twelve members of the jury to imprisonment and imposed a hefty fine of £200 on each of them.
The law reporters carried the following description of the trial: “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 Crown stood affected by the prisoner, and by that determine their verdicts.”
Epilogue
The Throckmorton trial stands out as one of the most egregious depictions of a legal system that took pride in calling itself the most civilised— an innate hypocrisy of epic proportions.
However, the trial of Throckmorton would continue to be known for its many firsts: The first trial where the jury was punished for having returned an unpleasant verdict, a first of its kind where the approver was not even permitted to be cross-examined by the accused, where all modicum of effective opportunities to present a defence was taken away, and yet a trial where the accused was held not guilty of the heinous offence of high treason, which by the track record of the time was unprecedented.
After deliberations, when the jury did resume at 5:00 p.m., the clerk asked the foreperson whether Sir Throckmorton had been found guilty.
Five hundred years later, in a country that prides itself on its democratic values, principles and the supremacy of the rule of law, one or more of the unpleasant instances of the Throckmortonian trial are mirrored.
I leave it to you readers to make that estimate, for periodicals, weeklies, newspapers and social media are replete with one or more Throckmorton defending themselves in some corner of the country.
While some may battle against the capricious reverse burden of proof of the modern-day legislations, the near impossible bail provisions, and while others may still be facing trials against ‘high treason’ or its sub-variants for holding a political belief, there continues to be a Throckmorton in every system, fighting the good fight.
My only hope is for history to be kinder to the memory of all the Throckmortons.
