by Jordan, Don
Bridgeman presided over ten other judges and thirty-four commissioners or non-judicial members. These included Edward Hyde (whose brother was one of the judges), the Duke of Somerset, the Duke of Albemarle (the former George Monck), several earls, including Southampton, Manchester, Lindsey and Dorset, other aristocrats including Viscount Saye and Sele, and a handful of leading parliamentarians including Denzil Holles and Arthur Annesley. Several of these commissioners had once fought on the parliamentary side against the king and now sat in judgment of their former comrades.
The accused were to be tried under a three-hundred-year-old Act. The Treason Act of 1351 had come into being during the reign of Edward III, its purpose to define and limit the number of offences classed as treason. It sill exists today. The last person to be tried under it was William Joyce, Lord Haw-Haw, the pro-Nazi propagandist, tried for breaking a citizen’s allegiance to the crown and hanged.*
The 1351 Act defines treason as: ‘where a man doth compass or imagine the death of our said Lord the King in his realm, or be adherent to the enemies of our Lord the King in his realm, giving to them aid or support in his realm or elsewhere …’7 This definition cast the net wide enough to encompass not only those who took part in the king’s trial, but also those who only thought about it or gave encouragement. It also included ‘levying of war against the king’. At this, some of the judges should have felt very uncomfortable. What had the Earl of Manchester, commander of one of Parliament’s armies, done if not wage war against the king? What about General Monck, now elevated by a grateful king to Duke of Albemarle – had he not waged war against the king? And what of Lord Saye and Sele, a member of Parliament’s Committee of Safety during the first Civil War – had he too not waged war against the king? Even Denzil Holles, arch-enemy of Oliver Cromwell, had fought against the king in the first Civil War. Edmund Ludlow estimated that no fewer than fifteen of the thirty-four commissioners and eleven judges had ‘engaged for parliament against the late king, either as members of parliament, judges or members of their army’.8
No matter; such men were safe now that they were set on destroying their former allies.
After selecting and swearing in a hand-picked jury, the prosecution then lowered the bar for the amount of evidence necessary to convict. Traditionally, in a treason trial, a minimum of two witnesses was required to prove guilt. Bridgeman announced that one witness would now be sufficient.
The next day, 9 October, the trial began in earnest. Bridgeman explained to the jury that they were called to serve by the Act of Free and General Pardon, Indemnity and Oblivion, under which there were several exceptions: ‘You will find in that act there is an exception for several persons, who (for their execrable treason for sentencing to death and signing the warrant for taking away the life of our said sovereign) are left to be proceeded against as traitors according to the laws of England …’
Of course, this seemed to preclude men like Axtell, but Bridgeman pointed out the clause in the Treason Act of 1351 declaring it treasonable ‘to levy war against the king’. By this clause men like Axtell were swept up.
Bridgeman took up the old matter of whether or not the king was above the law and quoted a statute from Edward III – ‘the king can do no wrong.’ Finally, he made sure the jury knew where their duty lay: ‘To conclude, you are now to enquire of blood, of royal blood, of sacred blood, of blood like that of saints under the altar … This blood cries for vengeance and it will not be appeased without a bloody sacrifice.’
The indictment for high treason was then read out against the twenty-eight who were waiting in the Tower to be brought to trial – plus three more who were absent. These were three who had fled to Holland – John Barkstead, John Okey and Miles Corbet. For some reason, the names of many more who had fled all over Europe and to North America were omitted. Perhaps it simply might not have looked good to have declared so many runaways beyond the reach of the court.
At six o’clock in the morning on 10 October, the prisoners were taken from their cells in the Tower and gathered in a courtyard. Under the supervision of the Lieutenant of the Tower, Sir John Robinson, they were shepherded on to several wagons. With Sir John in the lead and surrounded by both cavalry and foot soldiers, a wagon train set off for Newgate Prison, situated next to the Old Bailey. The prisoners were herded into Newgate, which made a good holding point during the trial. When the call came at nine o’clock that the judges were ready, the Sheriff of London brought the prisoners to stand before them at the Sessions House in the Old Bailey. According to Ludlow, the trial had taken so long to organise because the authorities had had to wait some months for the retirement of the previous sheriff, who would not have gone along with a rigged hearing.9
In the seventeenth century, the Sessions House was designed so that the courtroom was partially under cover and partially in the open air. The judges and officials sat on a raised dais at one end of the room. Facing them at the other end was a large archway open to the elements. In this way, one whole wall of the court was open, allowing the proceedings to be visible to passers-by. In front of the judges was a railing, known as the bar, at which the accused stood while being tried. Down some steps and out into the open air was a boxed area in which the accused were kept under guard until called up to the bar. Beyond that were further boxed-in areas for the public. The trial of the regicides was such a draw that the entire street around the Sessions House was packed with thousands of spectators.
The court’s first task was to bring the prisoners to the bar in batches and ask them how they pleaded. The first batch consisted of Sir Hardress Waller, Thomas Harrison and William Heveningham. Almost immediately, Harrison said, ‘My Lord, if you please, I will speak a word.’ It was an uncomfortable echo of the opening of the king’s trial. Sir Orlando would have none of it and told Harrison he would be heard in due course. Harrison capitulated and the clerk read out the indictment, stating that the three men at the bar, ‘instigated by the devil, traitorously compassed and imagined to take away the life of Charles Stuart, late King of England; and in pursuance of that intent and design, assembled and sat upon, judged, tried, and condemned, his said late Majesty of blessed memory, and also signed a warrant for killing and executing him’.
The first to be asked how he pleaded was Waller. According to Ludlow, this was because he was a man known to be liable to say anything to save his life. The clerk asked, ‘How sayest thou, Sir Hardress Waller; art thou guilty of the treason whereof thou standest indicted, or not guilty?’
The once decisive military leader shilly-shallied around the question. ‘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 a matter of law …’
In his ineffectual way, Waller was trying to introduce important issues that could affect whether or not he received a fair trial. The prisoners had been kept in solitary confinement without access to legal advice and had only been informed of the trial the night before it began. Bridgeman cut sharply across Waller, saying in a sarcastic tone, ‘I am loath to interrupt you, but this is the course … you must plead guilty or not guilty. There is no medium. Guilty or not guilty?’
After some verbal exchanges, Sir Hardress replied, ‘Insomuch as I said I dare not say not guilty, I must say guilty.’
The clerk sought to conclude the affair. ‘You admit the indictment?’ he asked.
Beaten down, Sir Hardress answered feebly, ‘Yes.’ He was told to stand down.
The court had bludgeoned the first defendant into pleading to charges he had only just heard, charges he had been allowed no time either to consider or to consult a lawyer about. When Sir Hardress and his colleagues had put Charles I on trial, the king had been able to plan his defence in advance and had then been given several chances to enter a plea spread over several days.
After that sad spectacle, the court called to the bar an altogether tougher defendant – General Thomas Harrison. The clerk asked him if he
was guilty of the treason he stood indicted for, or not guilty.
Harrison answered, ‘My Lords, have I liberty to speak?’
The judges realised it was going to be a long day. Harrison was instructed that he could say no more than ‘guilty’ or ‘not guilty’. But Harrison was not to be bullied. He succeeded in making the complaint that Sir Hardress had stumbled over. He had, he said, been held in prison for three months in solitary confinement without access to a lawyer. He had only heard the charge against him at nine o’clock the night before, and he wanted to discuss with the court the law on what he termed ‘this special case’.
The fact that Harrison and Waller sought to raise similar issues indicated that they had been schooled, probably in haste, by John Cook. Cook was the best qualified among the accused to put together some kind of defence. After all, he had written the charge against Charles I. Now he created a legal defence for the regicides based on similar legal arguments to those he had used to claim the legitimacy of the Rump Parliament’s trial of the king.
Cook’s labours were in vain. The court refused to budge an inch. Seeing this, Harrison accepted the rules and pleaded not guilty.
As the contests between the court and the previous two defendants worked their way to their conclusion, William Heveningham had stood by and taken note of all that had happened. When it was his turn to stand at the bar and plead, he did so immediately, pleading not guilty in the correct manner and saying he would be tried by God and country. Once that was done, the court allowed Sir Hardress Waller to present a written petition, entitled ‘To the King’s majesty and the Parliament’. The document was laid aside, unread. Waller and his fellow prisoners were led from the court.
No doubt relieved to have finished with the first batch of defendants, the court called the next group. This comprised six men: Isaac Pennington, Harry Marten, Gilbert Millington, Robert Tichborne, Owen Rowe and Robert Lilburne. Pennington was the first to be called. He held up his hand in answer and pleaded swiftly not guilty. He was followed by Harry Marten, who attempted to say he was not excepted from the Act of Pardon, because the name that appeared was Henry Marten, not Harry Marten. The individual named in the Act, he argued, was some other person.10 This novel defence was beaten down by Sir Heneage Finch, the solicitor-general.
The rest of the prisoners all pleaded not guilty, except for General George Fleetwood, who said, ‘I must confess I am guilty.’ He then presented a petition addressed to the king. Fleetwood claimed he had been pressed by Oliver Cromwell into signing the king’s death warrant. Monck interceded for him and his sentence was commuted to imprisonment. He was later sentenced to transportation to Tangiers, though it is not known whether he actually went. Some accounts say he died there in 1672, while others say he was released and went to America.11
When all had pleaded, the process was adjourned, for evidence to commence in the morning. Samuel Pepys recorded his reaction to the day. Although a senior government official and a royalist, he was not entirely happy with the selection of a few men to stand trial when so many had opposed the king:
At night comes Mr. Moore, and staid late with me to tell me how Sir Hards. [Hardress] Waller, Scott, Coke, Peters, Harrison, &c. were this day arraigned at the bar at the Sessions House … They all seem to be dismayed, and will all be condemned without question. In Sir Orlando Bridgman’s charge, he did wholly rip up the unjustness of the war against the King from the beginning, and so it much reflects upon all the Long Parliament, though the King had pardoned them, yet they must hereby confess that the King do look upon them as traitors. Tomorrow they are to plead what they have to say. At night to bed.12
On 11 October, the trial began in earnest. John Evelyn recorded the event tersely: ‘The regicides who sat on the life of our late king, were brought to trial in the Old Bailey, before a Commission of oyer and terminer.’13 As a fervent royalist, Evelyn would not be so abrupt when he came to describing the suffering on the scaffold. Six defendants were called to account: Thomas Harrison, Adrian Scroop, John Carew, John Jones, Gregory Clement and Thomas Scot.14 They were considered the most hard-line of the republicans; all of them had signed the king’s death warrant, and so were excepted from the Act of Oblivion to be executed.
Sir Heneage Finch opened the prosecution with a lesson on the divine right of kings and their sanctity throughout history: ‘We bring before your Lordships into judgment this day the murderers of a King. A man would think the laws of God and men had so fully secured these sacred persons that the sons of violence should never approach to hurt them. For, my Lord, the very thought of such an attempt hath ever been presented by all laws, in all ages, in all nations, as a most unpardonable treason.’
Had Isaac Dorislaus been alive he might have sought to put Sir Heneage right on a few points, chiefly by explaining that the killing of kings and tyrants had an ancient pedigree. Milton, if he had been able, might have pointed out that kings were anything but sacred. Despite his uncertain history, there was nothing shaky about Sir Heneage’s legal acumen. Homing in on the key aspects of the charge necessary to find the defendants guilty, he informed the jury that the indictment was for ‘compassing the death of the king’ – in other words, for devising and bringing about the execution, though not actually carrying it out in person. This was a key point, as Sir Heneage explained:
‘The rest of the indictment … the assembling, sitting, judging, and killing of the King, are but so many several overt acts to prove the intention of the heart … as the encouraging of the soldiers to cry out, “Justice, Justice!” … this may be given in evidence to prove the compassing and imagining the King’s death.’
Even though the verdict was a foregone conclusion, Sir Heneage employed all his rhetorical skills for the jury, describing the king as ‘blessed’ and sacred: ‘My Lords, when they had thus proceeded to … try, sentence, condemn, and kill, I had almost said crucify, him, whom they could not but know to be their King.’
Next, the prosecutor set out the background to the numbers of defendants selected to stand before the court. ‘The judges, officers, and other immediate actors in this pretended court, were about fourscore: of these some four or five and twenty are dead, and gone to their own place. Some six or seven of them, who were thought to have sinned with less malice, have their lives spared indeed, but are like to be brought to a severe repentance by future penalties.’
During his successful career as an attorney, Sir Heneage had gained a reputation for oratory. He demonstrated his old skills now: ‘Some eighteen or nineteen have fled from justice, and wander to and fro about the world with the mark of Cain upon them, and perpetual trembling, lest every eye that sees, and every hand that meets them, should fall upon them.’
Thomas Harrison was brought to stand at the bar. Turning directly to him, Sir Heneage proclaimed, ‘The first that is brought is the prisoner at the bar, and he deserves to be the first; for if any person now left alive ought to be styled the conductor, leader, and captain of this work, that is the man. He, my Lord, brought the King up a prisoner from Windsor. He sat upon him, sentenced him.’
It says much for the butcher’s boy from Newcastle that he was chosen to be first. Everything about him marked him out: his style and confidence, his Fifth Monarchist beliefs, his role in escorting Charles I to London and his part in the trial, and – perhaps most unforgettably – his place in history as the man who called Charles a ‘man of blood’.
Four witnesses were called to testify that they had seen Harrison stand in court to indicate his agreement with the king’s death sentence. Among them was MP James Nutley, who had been elected to the Protectorate Parliament in 1659. Nutley’s improbable testimony could not have been more fortunate for the prosecution.
He testified that, thanks to his friendship with the court clerk Phelps, he had been admitted to a private committee hearing. When he slipped into the Painted Chamber he heard Harrison discussing his conversation with the king over supper in Fareham on his way to Windsor. According to
Nutley, Harrison said that when the king had asked, ‘What do they intend to do with me – whether to murder me or no?’ he had replied, ‘The Lord hath reserved you for a public example of justice.’
Next to come under scrutiny were Harrison’s actions when they stopped at Lord Newburgh’s house for lunch. Newburgh gave evidence of the plan he had hatched to free the king by giving him a swift horse on which to speed off. He claimed that, sniffing a plot, Harrison had posted guards at all the doors of Newburgh’s house and had commanded his soldiers to ride ‘close’ to the king when they set off towards Windsor. According to the prosecution, these actions constituted imprisonment of the king and amounted to treason. Next, the court was shown two documents: the first had been drawn up to convene the High Court of Justice to try the king; the second was the king’s death sentence. Harrison asked to see the documents and agreed that his signatures were on them.
The evidence quickly completed, Harrison was allowed to speak. He said he was proud of his actions and that the trial of the king had ‘not been done in a corner’ – meaning it was no clandestine or underhand thing, but was carried out in the full light of day and before the public. He then tried to raise the changed allegiances of many of the judges: ‘Divers of those that sit upon the bench were formerly as active …’
Bridgeman cut him short: ‘Pray, Mr Harrison, do not thus reflect on the court. This is not the business.’
Harrison was not easily deflected. He continued that he now loathed many who had once been the apple of his eye but had changed their allegiance: ‘Rather than turn as many did, that did put their hand to this plough [meaning the restoration], I chose rather to be separated from my wife and family.’
Harrison turned to make a defence based on the argument that he had acted constitutionally: ‘this that hath been done was done by a parliament of England, by the Commons of England assembled in parliament; and this being so, whatever was done by their commands or their authority is not questionable by your lordships …’