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.