Wight; when he had granted so much, that was more than the people would have desired: when these few Commons, not only without, but excluding the rest of the Commons; not only without, and excluding the rest, but rejecting the Lords too, that then sat: when these few Commons shall take upon them this authority, and by colour of this, their king, sovereign liege lord, shall be sentenced, put to death; and that put to death, even as their king, and sentenced as their king; put to death as their king, and this before his own door, even before that place where he used in Royal Majesty to hear embassadors, to have his honourable entertainments; that this king shall be thus put to death at noon-day, it is such an aggravation of villany, that truly I cannot tell what to say. No story, that ever was, I do not think any romance, any fabulous tragedy, can produce the like. Gentlemen, if any person shall now come, and shroud himself under this preten led authority, or such a pretended authority, you must know, that this is so far from an excuse, that it is an height of aggravation. The Court for Cominon Pleas is the common shop or Justice, in that Court an appeal is brought for murder, which ought to have been in the King's Bench, the Court gives judgment, the party is condemned, and executed in this case it is murder in them that executed, because they had no lawful anthority. I speak this to you, to shew you, that no man can shroud himself by colour of any such false or pretended authority. I have but one thing more to add to you upon this head, and that is (which I should have said at first), If two or more do compass or imagine the king's death ; if some of them go on so far as to consultation; if others of then go further, they sentence, and execute, put to death in this case they are all Guilty; the first conclusion was treason. I have no more to add, but one particular, a few words. : As you will have Bills presented against those for compassing, imagining, adjudging the king, so possibly you may have bills presented against some of those for levying war against the king: levying of war, which is another branch of the Statute of the 25th Edw. 3. It was but declarative of the common law; it was no new law. By that law it was treason to levy war against the king. But to levy war against the king's authority, you must know, is treason too. If men will take up arms upon any public pretence; if it be to expulse aliens; if but to pull out privy-counsellors; if it be but against any particular laws, to reforin religion, to pull down Euclosures. In all these cases, if persons have assembled themselves in a warlike manner to do any of these acts, this is treason, and within that branch of levying war against the king. (Croke Car. 583.) This was adjudged in the Remember but this and I have done: I'shall not press you upon your oaths; you are persons of honour; you all know the obligation of an oath. This I will say, that he that conceals or favours the guilt of biood, takes it upon himself, wilfully, knowingly, takes it upon himself; and we know that when the Jews said, Let his blood be on us and our seed,' it continued unto them and their posterity to this day. God save the King. Amen, Amen. His Lordship's Speech being ended, there was presented to the grand jury a Bill of Indictment of High Treason against the following "These three were fled, but being outlawed, were afterwards taken in Holland, and though they pleaded they were not the same persons who were out-lawed, yet they were immediately tried (Pascha 14 Car. 2.); and *The ground on which this has been held being found the same persons, received sen. to be High Treason, requires that the design tence of death, and were executed accordor object, be the pulling down of all Euclo-ingly." Keling. 13. 2 Sid. 72. 1 Lev. 61. 1 Aures. TOL. V. Keb. 244. 38 Rob. Ewer. Rob. Carr, esq. Sir Purbeck Temple. John Gerrard. John Hearn. Mr. Coitmore. Edw. Darnel, esq. Tho. Tongue. Mr. Sharp. The Grand Jury returned the Indictment Billa Vera. Court adjourned to the Old Bailey 10th of October. October, 1660. commissionated him to act as one of his judges. He plainly told them, when witnesses were produced against him, that he came not thither with an intention to deny any thing he had done, but rather to bring it to light; owning his name subscribed to the warrant for executing the king, to be written by himself; charging divers of those who sat on the bench, Sir John Robinson, knight, lieutenant of his as his judges, to have been formerly as active Majesty's Tower of Londen, according to his for the cause in which he had engaged, as him Warrant received, delivered to Mr. Sheriff the self or any other person; affirming, that he had Prisoners hereafter named, who were (in seve- not acted by any other motive than the princi ral coaches) with a strong guard of horse and ples of conscience and justice for proof of foot conveyed to Newgate, and about nine of which he said it was well known, he had chosen the clock in the morning delivered to the keep- to be separated from his family, and to suffer a ers of that prison, and thence brought to the long imprisonment, rather than to comply with Sessions House in the Old Bailey, London, those who had abused the power they had as where the Commissioners of Oyer and Termi-sumed to the oppression of the people. He in ner were in court assembled, and where their Indictment was publicly read by Edward Shelton, esq.; clerk of the crown. Sessions House in the Old Bailey, October 10, 1660. The Court being assembled, and silence commanded, the Commission of Oyer and Terminer was again read. After which Sir Hardress Waller, Colonel Thomas Harrison, and Mr. William Heveningham, were brought to the bar, and commanded to hold up their sisted, that having done nothing in relation to the matter in question, otherwise than by the authority of the parliament, he was not justly accountable, either to this or any other inferior court; which being a point of law, he desired to have counsel assigned upon that head. But the court over-ruled; and by interrupting him frequently, and not permitting him to go on in his defence, they clearly manifested a resolution of gratifying the resentments of the court upon any terms. So that a hasty verdict was brought in against him. And the question being asked, If he had any thing to say why judgment should "All things being prepared, and the court not pass? he only said, That, since the court assembled at the Session-house in the Old Bai-had refused to hear what was fit for him to ley, sir Hardress Waller, maj.-gen. Harrison, and Mr. Heveningham, were ordered to be set to the bar; where the indictment being read, containing many strange expressions, it was contrived, that sir Hardress Waller, who was known to be a man that would say any thing to save his life, and was prepared to that purpose, should be first demanded whether he were Guilty, or Not Guilty. Which being done, he, after a little shifting, according to the expectation of the bench, pleaded Guilty; taking the blood which had been shed during his employment in the army upon his own bead. But when maj.-gen. Harrison was required to answer, he not only pleaded Not guilty, but justified the sentence passed upon the king, and the authority of those who had speak in his defence, he had no more to say. Upon which Bridgman pronounced the sen tence. And, that the inhumanity of these men may the better appear, I must not omit, that the executioner, in an ugly dress, with a halter in his hand, was placed near the major-general, and continued there during the whole time of his trial. Which action I doubt whether it was ever equalled by the most barbarous nations. But having learned to contemn such baseness, after the sentence had been pronounced against him, he said aloud, as he was withdrawing from the court, That he had no reason to be ashamed of the cause in which he had been en gaged. This sentence was so barbarously executed, that he was cut down alive, and saw his bowels thrown into the fire." 3 Ludlow, 50. ' of ever-blessed memory; and also did upon the 30th of January, 1649, sign and seal a Warrant for the execution of his late sacred and serene Majesty, of blessed memory. Where ' also,' &c. Clerk of the Crown. How sayest thou, sir Hardress Waller? Art thou Guilty of that Treason whereof thou standest indicted, and for which thou hast now been arraigned, or Not Guilty? Sir H. Waller. My lords, I dare not say, Not Guilty; but since that in a business of this nature we have no counsel or advice, and being not able to speak to matter of law Lord Chief Baron. I am loth to interrupt you; but this is the course: you have heard the indictment read, and the course is, you must plead Guilty or Not Guilty. There is no medium, Guilty or Not Guilty. It is that which is the law, and the case of all men. Are you Guilty? Or Not Guilty? Sir H. Waller. I may confess myself Guilty of some particulars in that Indictment, but not of all; for so, instead of discharging, I shall wound my conscience. to Clerk. Are you Guilty, or Not Guilty? Court. You shall have that liberty that any subject of the nation can have or can challenge. No man, standing at the bar in that condition you are, must make any other answer to that Indictment than Guilty, or Not Guilty. It is the common case of all men. Your confession must be plain and direct, either Guilty or Not Guilty. Sir H. Waller. My lord, I desire some time to consider of it, for it is a great surprizal. Court. You have had time enough to consider of it; you must follow the directions of the Court, Guilty or Not Guilty? You must not thus discourse of being surprized; for these discourses are contrary to all proceedings of this nature. Clerk. How say you, sir H. Waller? you Guilty or Not Guilty? Are Sir H. Waller. I dare not say, Not Guilty. Sir H. Waller. I would be glad to be understood Court. Your plea must be direct, Guilty, or Not Guilty. Sir H. Waller. Shall I be heard, my lord? Court. Yes, upou your trial. There is but two ways, plead Not Guilty, or confess it. Sir H. Waller, we would not have you to be deceived. If you confess, and say, you are Guilty, there is nothing then but Judgment: If you say Not Guilty, then you shall be heard with your evidence. Consider with yourself. Plead Not Guilty, or confess, and say, you are Guilty. Sir H. Waller. My lord, it puts me upon a great contest with myself. I shall be very free to open my heart Court. Sir, you must plead Guilty, or Not Guilty. Sir H. Waller. My lord, my condition differs from others, I am a stranger; I have been thirty years transplanted into Ireland, which has made me unacquainted with the affairs of the law here. Court. You must keep to the course of the law, either Guilty or Not Guilty. There is but one of these two pleas to be made. Sir H. Wailer. I dare not say Not Guilty, Court. There are but these three things to be considered: Either you must say Guilty, which is confession, and then there remains no more but Judgment; or Not Guilty, and then you shall be heard; or Judgment will pass for your standing inute, which is all one if you had confessed. Sir H. Waller. Insomuch as I said I dare not say Not Guilty, I must say Guilty. Clerk, You say you are Guilty? You confess the Indictment. Sir H. Waller.* Yes. 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 give you but the same rule. If you plead Not Guilty, you shall be heard at large; if Guilty, you know what remains. Harrison. Will you give me leave to give you my answer in my own words? L. C. Bar. 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 were in your condition. You must plead Not Guilty, or, if you confess Guilty, there must be Judgment upon your confession. The same rule for one must be for another. Harrison. You express your rule very fair, as well to me as this gentleman (pointing at sir H. Waller); but I have something to say to your lordships, which concerns your lordships as well as myself. Court. You must hold, and plead Guilty, or Not Guilty. If you go otherwise (as I told you before), it will be as if you pleaded not at all, and then Judgment will pass against you. The law gives the words, frames your answer, it is none else but the law, Guilty, or Not Guilty? Harrison. My lord, I have been kept olose prisoner near these three months, that no body 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 "He had at first pleaded Not Guilty, but was allowed by the Court to withdraw his plea." Kelyng, 11. sudden, or unprovided. You spend 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? Harrison. I am speaking. Shall I not speak two words? Court. If you will not put yourself upon your trial, you must expect that course that the law directs. Harrison. May it please your lordships, I am now Clerk. Are you Guilty, or Not Guilty? Harrison. I desire to be advised by the law, this is a special case. Court. The law allows nothing now, but to plead Guilty, or Not Guilty. Court. You must plead to your Indictment. If it be Treason, it cannot be justified; if it be justifiable, it is not Treason; therefore plead Guilty, or Not Guilty. Harrison. Give me advice in this Clerk. Tho. Harrison, Are you Guilty? Or Not Guilty? Harrison. I would willingly render an account of all my doings Clerk. Are you Guilty or? Or Not Guilty? Court. You have been acquainted with the legal proceedings. You never found in all your experience that any prisoner at the bar, for Felony or Treason, was suffered thus to discourse, or to answer otherwise than Guilty, or Not Guilty? Clerk. Are you Guilty? or Not Guilty? Mr. Sol. Gen. I do beseech your lordships he may plead; peradventure he knows his case so well, that he thinks it as cheap to defy the Court, as submit to it. Court. We must enter your standing mute; that is Judgment. Clerk. Are you Guilty, or Not Guilty? Harrison. Will you refuse to give me any satisfaction? Court. Are you Guilty, or Not Guilty? Harrison. Will you give me your advice? Court. We do give you advice. The advice is, there is no other plea, but Guilty, or Not Guilty. You shall be heard when you have put yourself upon your trial. Clerk. Are you Guilty, or Not Guilty? Harrison. You do deny me counsel, then I do plead Not Gilty. Clerk. You plead Not Guilty? Is this your Plea? Harrison Yes. Court. You have pleaded Not Guilty; that which remains is, that you must be tried by God and the Country, otherwise we must record your standing mute. Clerk. How will you be tried? Harrison. I will be tried according to the ordinary course. Clerk. Whether by God and the Country? you must speak the words. Harrison. They are vain words——————— Court. We have given you a great deal of lberty and scope, which is not usual. It is the course and proceedings of law, if you will be tried, you must put yourself upon God and the Country. Clerk. How will you be tried? Harrison. I do offer myself to be tried in your own way, by God and my Country. Clerk. God send you a good deliverance. Clerk. WILLIAM HEVENINGHAM, hold up your hand. How sayest thou? Art thou Guilty of the Treason whereof thou standest indicted, and art now arraigned? or Not Guilty? Heveningham. Not Guilty. Clerk. How will you be tried? Heveningham. By God and the Country. Clerk. God send you a good deliverance. Sir HARDRESS WALLER then presented his Petition to the Court, directed "To the King's Majesty and the Parliament," which was receiv ed, but not at this Court read; and then the three persons aforesaid were dismissed. Clerk. Bring to the bar Isaac Pennington, esq.; Henry Martin, esq.; Gilbert Millington, gentleman; Robert Tichburne, esq.; Owen Roe, esq.; and Robert Lilburn, gentleman; who were called, and appeared at the bar, and being commanded severally, held up their hands. former persons. The Indictment was read again as to the Clerk. ISAAC PENNINGTON, hold up thy hand. How sayest thou? Art thou Guilty of the Treason whereof thou standest indicted, and art now arraigned? or Not Guilty? Pennington. Not Guilty, my lord. Clerk. How will you be tried? Pennington. By God and the Country. Clerk. God send you a good deliverance. Clerk. HENRY MARTEN, how sayest thou? Art thou Guilty of the Treason whereof thou Court. You are totally excepted out of the Act. Marten. If it were so, I would plead. My name is not in that Act. Court. Henry Martin is there. Mr. Solicitor General. Surely he hath been kept close prisoner indeed, if he hath not seen the Act of Indemnity. Shew it him. Mr. Shelton opening the Act. And then the Act was shewed to the said Mr. Marten. Marten. Henry Martin. My name is not so, it is Harry Marten. Court. The difference of the sound is very little. You are known by that name of Martin. Marten. I humbly conceive all Penal Statutes ought to be understood literally. Clerk. Are you Guilty? or Not Guilty? Marten. I am not Henry Martin. Clerk. Are you Guilty? or Not Guilty? Court. Be advised; the effect of this plea will be judgment. Here Mr. Solicitor General cited somewhat parallel to this in a case formerly of Baxter, where the name was Bagster, with an 9, and adjudged all one, being of the same sound. Clerk. Are you Guilty? or Not Guilty? Marten, My lord, I desire counsel; there will arise matter of law, as well as fact. Court. You are indicted for Treason, for a malicious, traitorous compassing and imagining the King's death; if you have any thing of jus tification, plead Not Guilty, and you shall be heard; for if it be justifiable it is not Treason. The rule is, either you must plead Guilty, and so confess, or Not Guilty, and put yourself upon your trial; there is no medium.' Marten. May I give any thing in evidence before Verdict. Court. Yes; upon your trial you may give "Memorandum, That upon the arraignment of Henry Martyn, his name being so written in the indictment, he said his name was Marten, and not Martyn; but the Court agreed that he being known by that name of Martyn, that was well enough in an indictment, though it be not spelled directly as he spelleth it." Kelyng, 11. Court. You must plead either Guilty, and so confess it; or Not Guilty, and then you shall be heard any thing for your justification. Clerk. Are you Guilty? or Not Guilty? Court. There is nothing you can say but Guilty, or Not Guilty; all other discourses turn upon yourself. Clerk. Are you Guilty? or Not Guilty? Millington. You might enlighten me in some scruples. Does my pause trouble you much? I should not be long. Court. Your particular case cannot differ from others. Clerk. Are you Guilty? Or Not Guilty? Millington. There are some things in the Indictment that I can say Not Guilty to; there are others that I must deal ingenuously, and confess them. Clerk. Are you Guilty in manner and form as you are indicted? Or Not Guilty? Millington. Not Guilty. Clerk. How will you be tried? Millington. By God and the country. Clerk. God send you a good deliverance. Clerk. ROBERT TICHBOURN, hold up your hand. How sayest thou? Art thou Guilty of the Treason whereof thou standest indicted, and art now arraigned? Or Not Guilty? Tichbourn. My lord, I have been a very close prisoner, without any advice; I am altogether unable in law to speak. Court. You know the course hath been delivered to you by others, I will not trouble you with it. It is neither long nor short; the law requires your answer, Guilty? Or Not Guilty? Tichbourn. Spare me but one word. If upon the trial there shall appear to be matter of law, shall I have the liberty of counsel for it? If I shall be put in my own case to plead matter of law against those noble persons who |