Chapter 9

These things may not be denied, Sir; I speak it rather, and I pray God it may work upon your heart, that you may be sensible of your Miscarriages. For whether you have been, as by your office you ought to be, a Protector of England, or the Destroyer of England, let all England judge, or all the world, that hath look'd upon it. Sir, though you have it by inheritance in the way that is spoken of, yet it must not be denied that your office was an office of trust, and indeed an office of the highest trust lodged in any single person; For as you were the Grand Administrator of Justice, and others were, as your delegates, to see it done throughout your realms; if your greatest office were to do Justice, and preserve your People from wrong, and instead of doing that, you will be the great Wrong-doer yourself; if instead of being a Conservator of the Peace, you will be the grand Disturber of the Peace; surely this is contrary to your office, contrary to your trust. Now, Sir, if it be an office of inheritance, as you speak of, your Title by Descent, let all men know that great offices are seizable and forfeitable, as if you had it but for a year, and for your life. Therefore, Sir, it will concern you to take into your serious consideration your great Miscarriages in this kind. Truly, Sir, I shall not particularize the many Miscarriages of your reign whatsoever, they are famously known: It had been happy for the kingdom, and happy for you too, if it had not been so much known, and so much felt, as the Story of your Miscarriages must needs be, and hath been already.

Sir, That which we are now upon, by the command of the highest Court, hath been and is to try and judge you for these great offences of your's. Sir, the Charge hath called you Tyrant, a Traitor, a Murderer, and a Public Enemy to the Commonwealth of England. Sir, it had been well if that any of all these terms might rightly and justly have been spared, if any one of them at all.

KING--Ha!

LORD PRESIDENT--Truly, Sir, We have been told '_Rex est dum bene regit, Tyrannus qui populum opprimit_': And if so be that be the definition of a Tyrant, then see how you come short of it in your actions, whether the highest Tyrant, by that way of arbitrary government, and that you have sought for to introduce, and that you have sought to put, you were putting upon the people? Whether that was not as high an Act of Tyranny as any of your predecessors were guilty of, nay, many degrees beyond it?

Sir, the term Traitor cannot be spared. We shall easily agree it must denote and suppose a Breach of Trust; and it must suppose it to be done to a superior. And therefore, Sir, as the people of England might have incurred that respecting you, if they had been truly guilty of it, as to the definition of law; so on the other side, when you did break your trust to the kingdom, you did break your trust to your superior; For the kingdom is that for which you were trusted. And therefore, sir, for this breach of Trust when you are called to account, you are called to account by your superiors. '_Minimus ad majorem in judicium vocat._' And, Sir, the People of England cannot be so far wanting to themselves, God having dealt so miraculously and gloriously for them: but that having power in their hands, and their great enemy, they must proceed to do justice to themselves and to you: For, Sir, the Court could heartily desire, that you would lay your hand upon your heart, and consider what you have done amiss, that you would endeavour to make your peace with God. Truly, Sir, these are your High-Crimes, Tyranny and Treason.

There is a third thing too, if those had not been, and that is Murder, which is laid to your charge. All the bloody Murders, which have been committed since this time that the division was betwixt you and your people, must be laid to your charge, which have been acted or committed in these late wars. Sir, it is an heinous and crying sin: And truly, Sir, if any man will ask us what Punishment is due to a Murderer, let God's Law, let man's law speak. Sir, I will presume that you are so well read in Scripture, as to know what God himself hath said concerning the shedding of man's blood: Gen. IX., Numb. XXXV. will tell you what the punishment is: And which this Court, in behalf of the whole kingdom, are sensible of, of that innocent blood that has been shed, whereby indeed the land stands still defiled with that blood; and, as the text hath it, it can no way be cleansed but with the shedding of the Blood of him that shed this blood. Sir, we know no dispensation from this blood in that Commandment 'Thou shalt do no Murder': We do not know but that it extends to kings as well as to the meanest peasants, the meanest of the people: the command is universal. Sir, God's law forbids it; Man's law forbids it: Nor do we know that there is any manner of exception, not even in man's laws, for the punishment of murder in you. It is true, that in the case of kings every private hand was not to put forth itself to this work for their reformation and punishment; But, Sir, the people represented having power in their hands, had there been but one wilful act of murder by you committed, had power to have convened you, and to have punished you for it.

But then, Sir, the weight that lies upon you in all those respects that have been spoken, by reason of your Tyranny, Treason, Breach of Trust, and the Murders that have been committed; surely, Sir, it must drive you into a sad consideration concerning your eternal condition. As I said at first, I know it cannot be pleasing to you to hear any such things as these are mentioned unto you from this Court, for so we do call ourselves, and justify ourselves to be a Court, and a high Court of Justice, authorized by the highest and solemnest court of the kingdom, as we have often said; And although you do not yet endeavour what you may to discourt us, yet we do take knowledge of ourselves to be such a Court as can administer Justice to you: and we are bound, Sir, in duty to do it. Sir, all I shall say before the reading of your Sentence, it is but this: The Court does heartily desire that you will seriously think of those evils that you stand guilty of. Sir, you said well to us the other day, you wished us to have God before our eyes. Truly Sir, I hope all of us have so: That God, who we know is a King of Kings, and Lord of Lords; that God with whom there is no respect of Persons; that God, who is the Avenger of innocent Blood; We have that God before us; that God, who does bestow a curse upon them that with-hold their hands from shedding of blood, which is in the case of guilty malefactors, and that do deserve death: That God we have before our eyes. And were it not that the conscience of our duty hath called us unto this place, and this imployment, Sir, you should have had no appearance of a Court here. But, Sir, we must prefer the discharge of our duty unto God, and unto the kingdom, before any other respect whatsoever. And although at this time many of us, if not all of us, are severely threatened by some of your party, what they intend to do, Sir, we do here declare, That we shall not decline or forbear the doing of our duty in the administration of Justice, even to you, according to the merit of your Offence although God should permit those men to effect all that bloody design in hand against us. Sir, we will say, and we will declare it, as those Children in the Fiery Furnace, that would not worship the golden image, that Nebuchadnezzar had set up, 'That their God was able to deliver them from that danger that they were near unto'; But yet if he would not do it, yet notwithstanding that they would not fall down and worship the Image. We shall thus apply it; That though we should not be delivered from those bloody hands and hearts that conspire the overthrow of the kingdom in general, of us in particular, for acting in this great Work of Justice, though we should perish in the Work, yet by God's grace, and by God's strength, we will go on with it. And this is all our resolutions, Sir, I say for yourself, we do heartily wish and desire that God would be pleased to give you a sense of your sins, that you would see wherein you have done amiss, that you may cry unto him, that God would deliver you from Blood-guiltiness. A good king was once guilty of that particular thing, and was clear otherwise, saving in the matter of Uriah. Truly, Sir, the Story tells us that he was a repentant king: and it signifies enough, that he had died for it, but that God was pleased to accept of him, and to give him his pardon, 'Thou shalt not die, but the child shall die: Thou hast given cause to the enemies of God to blaspheme.'

KING--I would desire only one word before you give Sentence; and that is, that you would hear me concerning those great Imputations that you have laid to my charge.

LORD PRESIDENT--Sir, You must give me now leave to go on; for I am not far from your Sentence, and your time is now past.

KING--But I shall desire you will hear me a few words to you: For truly, whatever Sentence you will put upon me in respect of those heavy imputations, that I see by your Speech you have put upon me; Sir, It is very true, that----

LORD PRESIDENT--Sir, I must put you in mind: Truly, Sir, I would not willingly, at this time especially, interrupt you in anything you have to say, that is proper for us to admit of; but, Sir, you have not owned us as a Court, and you look upon us as a sort of people met together; and we know what language we receive from your party.

KING--I know nothing of that.

LORD PRESIDENT--You disavow us as a Court; and therefore for you to address yourself to us, not acknowledging us as a Court to judge of what you say, it is not to be permitted. And the truth is, all along, from the first time you were pleased to disavow and disown us, the Court needed not to have heard you one word; For unless they be acknowledged a Court, and engaged, it is not proper for you to speak. Sir, we have given you too much liberty already, and admitted of too much delay, and we may not admit of any farther. Were it proper for us to do it, we should hear you freely; and we should not have declined to hear you at large, what you could have said or proved on your behalf, whether for totally excusing, or for in part excusing those great and heinous Charges, that in whole or in part are laid upon you. But, Sir, I shall trouble you no longer; your sins are of so large a dimension, that if you do but seriously think of them, they will drive you to a sad consideration of it, and they may improve in you a sad and serious repentance; And that the Court doth heartily wish that you may be so penitent for what you have done amiss, that God may have mercy, at leastwise, upon your better part: Truly, Sir, for the other, it is our parts and duties to do that, which the law prescribes. We are not here _jus dare_ but _jus dicere_. We cannot be unmindful of what the Scripture tells us; 'For to acquit the Guilty is of equal Abomination, as to condemn the Innocent.' We may not acquit the Guilty. What sentence the law affirms to a Traitor, Tyrant, a Murderer, and a public Enemy to the Country, that Sentence you are now to hear read unto you; and that is the Sentence of the Court.

The Lord President commands the sentence to be read: make an O yes, and command Silence while the Sentence is read.

O yes made: Silence commanded.

The Clerk read the Sentence, which was drawn up in Parchment:

'Whereas the Commons of England in Parliament had appointed them an High Court of Justice, for the Trying of Charles Stuart, King of England, before whom he had been three times convened; and at the first time a Charge of High-Treason, and other Crimes and Misdemeanors, was read in the behalf of the Kingdom of England,' etc. [Here the Clerk read the Charge.] 'Which Charge being read unto him, as aforesaid, he the said Charles Stuart was required to give his Answer: But he refused so to do; and so expressed the several Passages of his Trial in refusing to answer. For all which Treasons and Crimes this Court doth adjudge, That the said Charles Stuart, as a Tyrant, Traitor, Murderer, and a Public Enemy, shall be put to Death, by the severing his Head from His Body.'

After the Sentence read, the Lord President said, This Sentence now read and published, is the Act, Sentence, Judgment, and Resolution of the whole Court.

Here the Court stood up, as assenting to what the President said.

KING--Will you hear me a word, Sir?

LORD PRESIDENT--Sir, you are not to be heard after the Sentence.

KING--No, Sir?

LORD PRESIDENT--No, Sir; by your favour, Sir. Guard, withdraw your Prisoner.

KING--I may speak after the Sentence--By your Favour, Sir, I may Speak after the Sentence ever.

By your Favour (Hold!) the Sentence, Sir----

I say, Sir, I do----

I am not suffered for to speak: Expect what Justice other People will have.

O yes: All manner of Persons that have any thing else to do, are to depart at this time, and to give their attendance in the Painted Chamber; to which place this Court doth forthwith adjourn itself.

Then the Court rose, and the King went with his guard to sir Robert Cotton's, and from thence to Whitehall.

FOOTNOTES:

[20] John Bradshaw (1602-1659) was the son of a Cheshire gentleman. Called to the bar in 1627, he practised at Congleton till about 1643, when he became judge of the Sheriff's Court in London, and was enjoying, according to Campbell, 'a considerable but obscure practice'; had, according to Clarendon, 'a good practice in his chamber, and [was] much employed by the fractious'; and became, according to Milton, 'a profound lawyer, an eloquent advocate.' He defended Lilburne successfully in 1645. He was made President of the High Court for the purpose of this trial, after the position had been declined by Whitelock, Rolle, St. John, and Wilde. After this trial he presided at the trials of the Duke of Hamilton following on the Battle of Worcester; and Holland, Norwich, Capel, and Owen after the siege of Colchester. Later on he vigorously opposed Cromwell, and accepted a seat in Richard Cromwell's Council of State. He became a Commissioner of the Great Seal in 1659, and died in October of that year. His body was exhumed at the Restoration with those of Cromwell and others, hung at Tyburn, and buried under the gallows. According to a legend perpetuated by an inscription on a cannon, his body was taken to Annapolis and buried there. A panegyric was written on him by Milton.

[21] John Cook acted with Bradshaw as one of the counsel defending Lilburne in 1646. After the trial, of a scurrilous account of which he was probably the author, he was made Master of the hospital of St. Cross, and afterwards held various judicial posts in Ireland. On the Restoration he was tried and executed with the other regicides.

[22] See _post_, p. 150.

[23] 'This is as the king expressed it; but I suppose he meant Answer.'--Former Edition.

[24] Clement Walker says: 'Whether these breaches and interruptions were made by Bradshaw, or are omissions and expunctions of some material parts of the king's speech, which this licensed penman durst not set down, I know not. I hear much of the king's argument is omitted, and much depraved, none but licensed men being suffered to take notes.'

[25] See p. 150.

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.