THE REGICIDES

Before Charles II. left Breda to return to England as King; he published

a proclamation dated 4-14th April 1660, in which he promised among other

things a general pardon for all crimes, to everybody who made submission

to the new order of things within forty days, 'excepting only such

persons as shall hereafter be excepted by Parliament.' Accordingly, on

the 8th of July 1661, the matter was discussed in the Parliament which

recalled the King, and a list of excepted persons was drawn up. The

House of Lords, as was natural, showed a greater desire for severity

than the House of Commons, which gave Charles an opportunity, of which

he was not slow to avail himself, of appearing before the House of Lords

as an advocate for leniency. The result was that the Act of Oblivion was

passed by the newly elected Parliament on 11th July 1661. The Act, which

deserves careful study for various reasons, begins by pardoning all

crimes committed between 1st January 1637 and 24th January 1660. There

then follow exceptions. These include murders not committed under the

authority of the King or Parliament, double marriages, witchcraft, and

'any theft or stealing of any goods, or other felonies' committed since

4th March 1659. But the more important exceptions are contained in three

sections, by one of which various persons are excluded from the benefit

of the Act, while by the other two some of them are not to be executed

without the authority of an Act of Parliament. It is obvious that, as is

pointed out by Bridgman in Tichburne's trial, these sections did not

affect the functions of the jury in the trials of any of the named

persons. Marten, who was in the second category of exceptions,

condescended to attempt to defend himself on the ground that his name

was Harry Marten, and the name in the Act was Henry Martin; and Cook

took a still more technical point of defence on the same subject. In the

result the King's conduct in the matter seems generally to have been

regarded as lenient, and indeed his character seems to be free from the

reproach of cruelty or a desire for vengeance. It is interesting to

observe that there was a question of including Milton in the list of

excepted persons. He was not, however, so included, and as he would

otherwise have been subjected to a long term of imprisonment, we must,

if we agree with Lord Campbell in attributing to Hale any credit for the

composition of _The Pilgrim's Progress_, consider that Charles missed a

chance of contributing to the writing of _Paradise Lost_.

* * * * *

As a preliminary to the trial a meeting was held to settle certain

points of law which it was foreseen would arise. This was attended by

all the judges then in office, namely, Sir Orlando Bridgman, Chief-Baron

of the Exchequer;[26] Justices Foster[27] and Hide of the Common

Pleas;[28] Justice Mallet[29] of the King's Bench; together with Sir

Geoffry Palmer,[30] the King's Attorney; Sir Heneage Finch,[31] the

King's Solicitor; Sir Edward Turner, Attorney to the Duke of York; Mr.

Wadham Windham, of Lincoln's Inn; and Mr. Kelyng,[32] the reporter. It

was there resolved to try the prisoners at Newgate by commission of Gaol

Delivery, rather than by a special commission of Oyer and Terminer, so

as to proceed with the trial at once; that all the prisoners should be

arraigned the first day; that the King's counsel might privately manage

the evidence before the Grand Jury (the practice of allowing any

advocates to appear before the Grand Jury has long fallen into disuse);

that the murder of the King should be precisely laid in the indictment,

and be made use of as one of the overt acts to prove the compassing of

his death; that any act tending to the compassing of the King's death

besides the one laid in the indictment might be given in evidence; that

the two witnesses required in treason need not speak to the same overt

act;[33] that the fact that a juror had already found another prisoner

guilty on the same indictment was no good ground for a challenge; that

the prisoners should not be tried in irons; that the murder of the King

should be stated to have been committed by _quidam ignotus_, with a

visor on his face;[34] that the compassing of the King's death should be

laid to have been committed on the 29th Jan. 24 Car. I., and the murder

itself on _tricesimo mensis ejusdem Januarii_, without naming any year

of any king; and that the indictment should conclude '_contra pacem

nuper domini regis coron' et dignitat' suas_,' etc.; and other technical

matters were settled in the same way. The indictment was in Latin, being

preferred after Michaelmas, until which time English was allowed by the

Convention which was sitting when the King was restored.

The trials began on the 9th of October 1660, at Hick's Hall in the

County of Middlesex, when the Grand Jury were charged by the Lord

Chief-Baron Bridgman. True bills were found against thirty-one

persons,[35] a true bill being found against Hulet on the 12th.

On the next day Thomas Harrison[36] was put up to plead.

CLERK--Thomas Harrison, How sayest thou? Art thou Guilty of the

treason whereof thou standest indicted, and art now arraigned?

Or not Guilty?

HARRISON--My Lords, have I liberty to speak?

COURT--No more (at this time) than Guilty or Not Guilty. Mr.

Harrison, you have heard the direction before. We can but give

you the same rule. If you plead Guilty you shall be heard at

large; if Not Guilty, you know what remains.

HARRISON--Will you give me leave to give you my answer in my own

words?

LORD CHIEF-BARON--There is no answer but what the law directs;

it is the same with you as with all others, or as I would desire

if I was in your condition. You must plead Not Guilty, or if you

confess Guilty, there must be judgment on your confession.

HARRISON--You express your rule very fair, as well to me as to

this gentleman (pointing to sir H. Waller, who had just pleaded

guilty); but I have something to say, which concerns your

Lordships as well as myself.

COURT--You must hold, and plead Guilty or Not Guilty.

HARRISON--My Lord, I have been kept close prisoner near these

three months, that nobody might have access to me. Do you call

me to give you a legal answer, not knowing of my trial till nine

of the clock last night, and brought away from the Tower to this

place at six of the clock this morning?

COURT--You must give your direct answer, Guilty, or Not Guilty.

You cannot say it is sudden or unprovided. You spend your time

in vain. You trouble the Court. You must plead Guilty, or Not

Guilty. We must not suffer you to make discourses here. You must

plead either Guilty or Not Guilty.

CLERK--Are you Guilty, or Not Guilty?

After objecting to plead in this way for a little more time, Harrison

was at last persuaded to plead Not Guilty. He then objected to complete

the usual formula by saying that he would be tried by God and his

Country, saying that they were vain words; but eventually--

HARRISON--I do offer myself to be tried in your own way by God and

my Country.

CLERK--God send you a good deliverance.

On the next day, the 11th, at seven o'clock in the morning, Harrison's

trial began by the calling of the jury, of whom Harrison challenged

thirty-five, his maximum number.

The case was then opened by Finch, the Solicitor-General, who, after

explaining the law of treason by quotations from the Bible and Coke,

charged the prisoner more particularly with having brought the King up

to London; with having signed the warrant constituting the Court which

tried him; with having sat as a member of the Court; and with having

signed the death-warrant.

All the witnesses were then sworn, six in all.

_Masterson_ proved that he saw Harrison sitting 'in that which they

called the High Court of Justice' on the 27th of January 1649, the day

when the King was sentenced; and that when the sentence was read he,

with others, stood up as assenting to it. _Clark_, _Kirk_, and _Nutley_

also gave evidence to the same effect; the latter adding that some few

days before the 20th there was a Committee in the Exchequer Chamber of

which the prisoner was a member.

I do remember well it was in the evening; they were lighting of

candles, they were somewhat private. This gentleman was there, I

saw him; for through the kindness of Mr. Phelps, who was then

Clerk to that Committee, I was admitted, pretending first to

speak with the said Mr. Phelps, and that I had some business

with him; and so (as I said before) I was admitted into the

Committee Chamber. Being there I did observe some passages fall

from the prisoner at the bar; the words were to this purpose; he

was making a narrative of some discourse that passed between his

late majesty and himself in coming between Windsor and London,

or Hurst Castle, I know not well which. My Lord, that passage

that I observed to fall from him in that discourse was this; he

said that the King as he sat in the coach with him was

importunate to know what they intended to do with him. The King

asked, What do they intend to do with me; Whether to murder me

or no? 'and I said to him, There was no such intent on as to

kill him, we have no such thoughts.' But (said he) the Lord has

reserved you for a public example of justice. There is one word

more, my Lords, and that is this, which I heard from the

prisoner at the bar. The reason and end of their meeting

together at that Committee was concerning the charge. So much I

observed. It was concerning the contracting of the impeachment.

I observed that some found fault with the length of that as it

was drawn. They were offering some reasons to contract it, and I

heard this prisoner at the bar vent this expression; 'Gentlemen,

it will be good for us to blacken him what we can; pray let us

blacken him,' or words to that purpose. I am sure 'blacken' was

his word.

_Lord Newburgh_,[37] when he was living at Bagshot, saw Harrison

conducting the King in custody from Hurst Castle to London. The two

warrants, one for the trial, the other for the execution of the King,

were produced, and Harrison's signatures to them were proved to be in

his handwriting. The Court pointed out that they were not produced as

records, but as evidence of overt acts of constituting a compassing of

the King's death on his part.

HARRISON--I do not come to be denying anything that in my own

judgment and conscience I have done or committed, but rather to

be bringing it forth to the light.

COURT--Sir, you must understand this by the way, this you must

take along with you, that these are read not as anything of

authority in themselves, or as used to any other purpose, but as

evidence of the fact against you; take that along with you.

This concluded the evidence; and Windham summed up the case very

shortly, concluding, 'I think a clearer evidence of a fact can never be

given than is for these things,' [Here the spectators hummed.]

LORD CHIEF-BARON--Gentlemen, this humming is not at all becoming

the gravity of this Court. Let there be free speaking by the

prisoner and the Court Counsel. It is more fitting for a

stage-play than for a Court of Justice.

HARRISON--It is now time, my Lords, to offer what I have to say.

Have these learned gentlemen offered what they have to say?

COUNSEL--We have no more till he hath given us occasion, not for

evidence of the fact.

HARRISON--My lords, the matter that hath been offered to you, as

it was touched, was not a thing done in a corner. I believe the

sound of it hath been in most nations. I believe the hearts of

some have felt the terrors of that presence of God that was with

his servants in those days (however it seemeth good to him to

suffer this turn to come on us) and are witnesses that the

things were not done in a corner. I have desired, as in the

sight of him that searcheth all hearts, whilst this hath been

done, to wait, and receive from him convictions upon my own

conscience, though I have sought it with tears many a time, and

prayers over and over, to that God to whom you and all nations

are less than a drop of water in the bucket; and to this moment

I have received rather assurance of it, and that the things that

have been done as astonishing on the one hand, I do believe ere

it be long it will be made known from Heaven, there was more

from God than men are aware of. I do profess that I would not

offer of myself the least injury to the poorest man or woman

that goes upon the earth. That I have humbly to offer is this,

to your Lordships; you know what a contest hath been in these

nations for many years. Divers of those that sit upon the bench

were formerly as active----[38]

COURT--Pray, Mr. Harrison, do not thus reflect on the Court.

This is not the business.

HARRISON--I followed not my own judgment; I did what I did, as

out of conscience to the Lord; for when I found those that were

as the apple of mine eye to turn aside, I did loath them, and

suffered imprisonment many years. Rather than to turn as many

did, that did put their hands to this plough, I chose rather to

be separated from wife and family than to have compliance with

them, though it was said, 'Sit thou at my right hand,' and such

kind expressions. Thus I have given a little poor testimony that

I have not been doing things in a corner, or from myself. May be

I might be a little mistaken; but I did it all according to the

best of my understanding, desiring to make the revealed will of

God in his Holy Scriptures as a guide to me. I humbly conceive

that what was done, was done in the name of the Parliament of

England, that what was done, was done by their power and

authority; and I do humbly conceive it is my duty to offer unto

you in the beginning that this Court, or any Court below the

High Court of Parliament, hath no jurisdiction of their actions.

Here are many learned in the law, and to shorten the work, I

desire I may have the help of counsel learned in the laws, that

may in this matter give me a little assistance to offer those

grounds that the law of the land doth offer. I say, what was

done, was done by the authority of the Parliament, which was

then the Supreme Authority, and that those that have acted under

them are not to be questioned by any power less than them. And

for that I conceive there is much out of the laws to be shewed

to you and many Precedents also in the case. Much is to be

offered to you in that; according to the laws of the nations,

that was a due Parliament. Those Commissions were issued forth,

and what was done was done by their power; and whereas it hath

been said we did assume and usurp an authority, I say this was

done rather in the fear of the Lord.

COURT--Away with him. Know where you are, Sir; you are in the

assembly of Christians; will you make God the author of your

treasons and murders? Take heed where you are. Christians must

not hear this. We will allow you to say for your own defence

what you can; and we have with a great deal of patience suffered

you to sally out, wherein you have not gone about so much for

extenuation of your crimes, as to justify them, to fall upon

others, and to blaspheme God, and commit a new Treason: For your

having of counsel, this is the reason for allowing of counsel:

When a man would plead any thing, because he would plead it in

formality, counsel is allowed. But you must first say in what

the matter shall be, and then you shall have the Court's answer.

LORD FINCH--Though my lords here have been pleased to give you a

great latitute, this must not be suffered, that you should run

into these damnable excursions, to make God the author of this

damnable Treason committed.

_Harrison_ repeats his two points; that what was done was done by a

'Parliament of England, by the Commons of England assembled in

Parliament'; and was therefore not to be questioned by the present

Court; and that what any did in obedience to a power which they could

not disobey, they ought not to be punished for. Upon these two points he

asked to be allowed the assistance of counsel. To this the Lord

Chief-Baron replies that the body Harrison refers to was not a

Parliament, that Harrison had made himself 'a solicitor in the

business,' when he said, 'Come let us blacken him as much as we can';

and that 'neither both Houses of Parliament, if they had been there, not

any single person, community, not the people collectively, or

representatively, had any colour to have any coercive power over their

King.' Annesley--who had, as he says, been one of the 'corrupt

majority,' put out of the house at the time of Pride's Purge--and Hollis

repeat the same thing. An argument then ensues between Harrison and the

other members of the Court on the authority of Parliaments generally; at

last--

HARRISON--I would not willingly speak to offend any man, but I

know God is no respecter of persons. His setting up his standard

against the people----

COURT--Truly, Mr. Harrison, this must not be suffered; this doth

not at all belong to you.

HARRISON--Under favour, this doth belong to me. I would have

abhorred to have brought him to account, had not the blood of

Englishmen that had been shed----

COUNSEL--Methinks he should be sent to Bedlam, till he comes to

the gallows to render an account of this. This must not be

suffered.

SOLICITOR-GENERAL--My Lords, I pray that the jury may go

together upon the evidence.

SIR EDWARD TURNER--My Lords, this man hath the plague all over

him, it is a pity any should stand near him, for he will infect

them. Let us say to him as they used to write over an house

infected, 'The Lord have mercy upon him,' and so let the officer

take him away.

The argument then continues a little longer, chiefly between Harrison

and the Lord Chief-Baron; till--

LORD CHIEF-BARON--Mr. Harrison, you have appealed to our

consciences. We shall do that, which, by the blessing of God,

shall be just; for which we shall answer before the Tribunal of

God. Pray take heed of an obdurate, hard heart and seared

conscience.

HARRISON--My lords, I have been kept six months a close

prisoner, and could not prepare myself for this trial by

counsel. I have got here some acts of parliament, of that House

of Commons, which your Lordship will not own; and the

proceedings of that house, whose authority I did own.

The Lord Chief-Baron then summed up shortly, and the jury brought in a

verdict of Guilty, apparently without much hesitation. Sentence of

dragging, hanging, and quartering was accordingly passed in the ordinary

terms.

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