Mr. Gairdner has since shifted his ground,[16] and, adopting Warkworth's version, has admitted that {288} young Edward was slain in the field, calling for succour to the Duke of Clarence; but he cannot bring himself to acquit Richard altogether, and suggests that he was the slayer, because no meaner person would have taken the responsibility of slaying so valuable a prisoner. As if these fine-drawn distinctions were made in the heat of a desperate _mêlée_. But even so, the two boys being about the same age and weight, it was a fair fight. There was no crime. Yet Mr. Gairdner still calls it a 'murder'! Of course there is no authority or ground whatever for bringing Richard in at all, if Warkworth's version is adopted. Verily the fiction is dying hard! There is no reason for considering the Duke of Gloucester to have been capable of assassinating his cousin because it was his duty to sit in judgment on prisoners as Lord Constable. The trial of rebels before a court consisting of the Earl Marshal and the Lord Constable was perfectly legal and constitutional. Speaking of trial by jury, Chief Justice Fortescue laid it down that in England 'some cases might be proved before two only, such as facts occurring on the high seas, and proceedings before the Earl Marshal and the Lord Constable.' It was a constitutional tribunal, and, although very young, his office of Constable made it incumbent on Gloucester to sit in judgment. The Earl Marshal, being an older man, would probably take the leading part. Mr. Gairdner says that it was a summary tribunal and that all who were brought before it were beheaded. It was a constitutional tribunal, and only thirteen prisoners were condemned to death. As many as twelve of the leaders were pardoned, if not more, and all the subordinate officers and soldiers. In comparison with Lancaster {289} and Tudor proceedings under similar circumstances,[17] the tribunal at Tewkesbury was lenient.[18] Although it does not affect Richard, a serious accusation against Edward IV. should here receive attention, namely, that his enemies who had taken refuge in Tewkesbury Abbey might, in Mr. Gairdner's words, 'have saved themselves by flight if Edward had not sworn in church upon the sacraments to pardon them. As to the executions being vindictive, I should very much like to know what other character they can possibly bear except that they were perfidious also.' They may be called vindictive if all executions for treason in a civil war are to be so called, but not, as Mr. Gairdner evidently intends, in any special sense. The sting of the accusation, however, is in the alleged perfidy.