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.