When the news came that he was, after all, going to be tried, Marten wrote to let Mary know with startling honesty, while reassuring her that all would work out well in the end:
My sweet Dear, brave gallant Soul,
Now stand thy ground; I was told on Tuesday night, that the House of Commons had given us all up on Monday, and had appointed a Committee to bring in a bill for that purpose, which cannot require much time, and if I wish any thing in the world, it is, that thou hadst been with me, when the tidings came, and ever since, to see if thou couldst find any alteration in me, sleeping or waking . . .
Perhaps the bill will not pass when it comes in, perhaps the Lords will not pass it, when it comes there; perhaps the King has given way to his friends to set this on foot, on purpose to have the whole honour of pardoning to himself; perhaps some names may be excepted in one House, or in the other; and thy Dear may be one of them. He that has time, has life; a thousand things happen betwixt the cup and the lip; and it is some comfort that we can still send to each other . . .
I was not so hasty to send thee this news yesterday; I believe I had not now neither, but that I was afraid thou wouldst hear it from another hand, that would make it worse . . .
Pluck up thy strength, my good Heart, conquer this brunt, and thou art a man for ever.
Marten was sent to the Tower with the others who would be on trial for their lives. There, gossip was rife. He wrote to Mary that he had heard that two of his fellow accused would be pardoned, while he and the rest would be sent into exile. All he could hope for, he said, was time to prepare himself for this journey overseas.
While waiting to see where he would be sent, Marten fed his lover snippets about life in the Tower. He had heard that various of Charles II’s courtiers wanted ‘to set up a trade of granting leave to visit prisoners’ – something that Lambert and Heveningham’s wives had suggested. Meanwhile his critical, womanising eye led him to fault the drab appearance of one of his fellow inmates’ daughters. At the same time Marten explained how each prisoner’s wellbeing in the Tower was dependent on the attitude of his individual guard: ‘This Keeper of mine,’ he wrote, ‘is a very civil person to me when he is with me, and swears he will visit thee, and bring thee to me whatever it cost; but he is just the worst Keeper in the Tower for keeping his times, when he is from me, that he makes me so uncertain in sending [letters] to thee, whereas all other prisoners are unlocked before 7 in the morning; he makes me stay till 8, 9, 10, and past; it is almost 9 now, yet I am fast.’15
The one piece of news that neither Marten nor any of his fellow regicides could communicate was the date of their trial, for none of them knew when that would be. That choice was down to their accusers.
The trial was committed to senior Royalist lawmen, who were aware of what was expected of them after five months of escalating antagonism towards the regicides. Alongside them were fifteen men who had actively been for Parliament against the late King. Many of their former comrades were aghast at the shameless way in which they had become not just turncoats, but also leaders of the retribution being meted out against their own kind. ‘Colonel George Monck being commissionated to be of this number,’ Ludlow wrote, ‘was not ashamed to sit among them, any more than Mr Denzil Holles and the Earl of Manchester.’ Holles and Manchester had been two of the six men that Charles I had sought to arrest, in person, just before the Civil War broke out. Ludlow remembered how they were ‘therefore personally concerned in the quarrel, had contributed the utmost of their endeavours to engage divers of the gentlemen (upon whom they were now to sit as judges) on that side, [and] were not contented to abandon them in this change, but assisted in condemning them to die for their fidelity to that cause, which [they] themselves had betrayed’.16
The senior judge in the case against the regicides was Sir Orlando Bridgeman, a man of sharp eyes and hollow cheeks, who had recently been created Lord Chief Baron of His Majesty’s High Court of Exchequer. Bridgeman’s father had been chaplain to King James, and one of his brothers would become a bishop. Bridgeman had long shone as a lawyer. By the time he was thirty-one he had served as solicitor general to Charles when Prince of Wales. He entered Parliament, where he was a forthright Royalist. However, when Charles I’s controversial favourite, the Earl of Strafford, was impeached, Bridgeman voted in favour of the charge. When it became clear that a majority in the Commons were after Strafford’s life, wanting him charged with treason, Bridgeman argued vigorously that it was inappropriate to attach a capital penalty to the charges against the earl. Although unsuccessful – Strafford was executed – Bridgeman had at an early age become adept at discerning precisely what treason was, and what it was not. This would be crucial in the trial of the regicides.
Bridgeman had served the King faithfully during the Civil Wars, at first in and around the important city of Chester, before joining the King’s parliament in Oxford. Charles relied on him during failed peace negotiations with Parliament in 1645, and he was again one of the King’s legal advisers during the final attempt at a treaty, during Charles’s imprisonment on the Isle of Wight. It seems likely that he was one of those to counsel the King not to recognise the court, if and when he was brought to trial.
Now the tables were turned. The accused would be confronted by a bevy of the King’s appointed judges, performing their professional duties against the backdrop of calls for vengeance. Some sincerely wanted the killers of the late, venerated, King held to account. Others, who had supported Parliament against Charles, but now welcomed his son as their King, were happy for a few dozen men to be scapegoats for half the kingdom. As Lucy Hutchinson noted, ‘Many who had preached and led the people into [fighting the King], and of that Parliament who had declared it to be treason not to advance and promote that cause, were all now apostasised, and as much preached against it, and called it rebellion and murder, and sat on the tribunal to judge it.’17
The attorney general was Sir Geoffrey Palmer, at sixty-two, eleven years older than Bridgeman, but his contemporary when entering the Commons in 1640, and his equal in outspokenness. A bon viveur, famed for his hospitality on his Midlands estates and at his Hampstead home, Palmer’s legal speciality was not treason, but conveyancing: he had an eye for detail. Ludlow tracked his methods during the trials of the regicides and called Palmer one of ‘the tyrant’s bloodhounds at the bar’.18
Sir Heneage Finch, the solicitor general, was one of those who had spoken on Colonel Hutchinson’s behalf in the Commons, in the mistaken belief that Hutchinson’s pardon was the King’s secret wish. Finch had lived quietly during the Commonwealth because of his widely known Royalist sympathies. He resided with his wife and fourteen children in Kensington House, which would become the principal royal palace in London from 1689 until 1760. Before the trials, Finch had chaired the committee that decided who would be covered by the Act of Indemnity. He had therefore already examined the individual cases of each of the prisoners in great detail. To legal historians, Finch is known as ‘the father of equity’,19 the legal principles whereby strict rules of law are subject to modification, where appropriate. The unyielding laws of treason allowed no such latitude.
Sir Edmund Turnor had helped to ease the Restoration, after professional disappointment. Passed over as Speaker of the Commons in favour of Harbottle Grimston, he used his consolation position as Chairman of the Elections Committee to ensure that, in the many disputed elections for the Convention Parliament, the Royalist candidate was returned at the expense of his Presbyterian rival, wherever possible. Turnor was known for his cloying servility to the Crown, and for his vindictiveness. His was not a welcome face to those on trial.
The proceedings against the accused opened on 9 October in Hicks Hall, the sessions house in Clerkenwell that was the judicial and administrative centre of Middlesex. On the first day, Sir Orlando Bridgeman addressed the twenty members of the grand jury without the defendants present. He gave a full and clear statement of the case, which included a ringing definition of h
igh treason: ‘By the Statute of the twenty fifth of Edward the Third (a Statute or Declaration of Treason) it is made High Treason to compass, and imagine, the Death of the King.’20 Bridgeman confirmed that this was the only crime in English Law where just imagining or ‘compassing’, without actually committing an offence, could result in punishment. He explained: ‘Then what is an imagination, or compassing the King’s death? Truly, it is any thing which shows what the imagination is. Words in many cases, they are evidences of his imagination: they are evidences of the heart.’21 The judge also made clear the guilt attached to all involved in any stage of the crime of high treason: ‘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 them go further, they sentence, and execute, put to death: in this case they are all guilty; the first consultation was treason.’22
Bridgeman made clear why the death of a King was such a uniquely heinous crime: ‘The reason of it is this, in the case of the death of the King, [it is] the head of the Commonwealth that’s cut off: and what a trunk, an inanimate lump, the body is, when the head is gone, you all know.’ Sir Orlando then harked back to the ancient laws that Charles I had in mind when justifying his dogged belief in the Divine Right of Kings. Bridgeman touched on statutes from the late eleventh century, through to Tudor times:
How do they style the King? They call Him, ‘The Lieutenant of God’, and many other expressions, in the Book of Primo Henrici Septimi states that book there: ‘The King is immediate from God, and hath no superior.’ The Statutes say: ‘The Crown of England is immediately Subject to God, and to no other Power.’ ‘The King’ (says our books) ‘He is not only Caput Populi, the Head of the people; but Caput Reipublicae, the Head of the Commonwealth, the three Estates.’23
Bridgeman anticipated the likely defence of those on trial: that they had acted under the authority of Parliament. ‘Gentlemen,’ he advised, ‘if any person shall now come, and shroud himself under this pretended authority, or such a pretended authority, you must know, that this is so far from an excuse, that it is an height of aggravation.’24
The judge pointed first to the pledges that those in authority had taken. In particular, he reminded the grand jury that anyone sitting in the Commons or the Lords was obliged to take the Oath of Supremacy before taking their seats: ‘They that take the Oaths of Allegiance, and Supremacy, they swear, that they will, to their power, assist, and defend all Jurisdictions, Privileges, Preeminences, and Authorities, granted, or belonging to the Kings, His Heirs, and Successors, or annexed to the Imperial Crown of this Realm.’ He next quickly dispensed with the idea that a king could be placed on trial: ‘I must deliver to you for plain, and true, Law; that no authority, no single person, no community of persons, nor the people collectively, or representatively have any coercive power over the King of England.’25
Bridgeman deviated from the specifics of the case with emotional passages, designed to remind the grand jury of the uniqueness of the case they were to hear: ‘No story, that ever was, I do not think any Romance, any Fabulous Tragedy, can produce the like.’26 He also pointed to the individual qualities of the late King, as compounding the tragedy of his loss, especially when, Bridgeman recalled, he had agreed to concede so much in the treaty agreed on, the month before his execution, while prisoner on the Isle of Wight. The calamity was compounded by the place of the King’s beheading, ‘before his own door, even before that place, where he used in Royal Majesty to hear ambassadors, to have his honourable entertainments’.27
‘To conclude, you are now to enquire of Blood, of Royal Blood, of Sacred Blood; Blood like that of the Saints under the Altar, crying . . . “How long, O Lord,” etc. This Blood cries for Vengeance, and it will not be appeased without a Bloody Sacrifice.’28
The jurors can have been left in no doubt as to what was expected of them.
The twenty-nine prisoners were told at nine o’clock that night that the following day would see them in court, facing charges that they had yet to learn.
They were woken by their guards early on 10 October, before being handed over at six o’clock in the morning by Sir John Robinson to the sheriff. He transported them – Harrison, Marten, Scroope, Scott, Jones, Clements, Cook, Peters, Axtell and twenty others – in a convoy of carriages, with a strong, mixed guard of cavalry and infantry, to Newgate, the notoriously grim prison on the edge of the City of London. At nine o’clock, after making brief and shocking acquaintance with the squalor of Newgate, they found themselves ushered across to the sessions house of the Old Bailey – a shuffling column of elderly men in chains, hobbling towards their destiny.
The accused were divided into five groups, the first of which, the smallest, comprised just Sir Hardress Waller, William Heveningham and Thomas Harrison. On being told to approach the bar, they were instructed to raise their right hands. Harrison interjected, ‘My Lord, if you please, I will speak a word . . .’ The court was quick to establish its authority: ‘Hold up your hand, and you shall be heard in due time. Mr Harrison, the course is, that you must hold up your hand first.’29
The defendants listened to the indictment that imperilled their lives, delivered by the clerk of the Crown, Edward Sheldon. It accused them, among other wrongs, of ‘not having the fear of God before [their] eyes, and being instigated by the Devil’; of acting ‘contrary to . . . due allegiance, and bounden duty’; and of ‘signing and sealing the warrant for the late sovereign’s execution’. The indictment read, the three prisoners were asked in turn to plead guilty, or not guilty. Sir Hardress Waller was shaken by the starkness of the choice, which resulted in much dithering. ‘My Lord, I do desire some time to consider of it, for it is a great surprisal.’ He was told he had to plead one way or the other, and that he must not drift off into irrelevant asides. ‘Shall I be heard, my Lord?’ implored Waller.
‘Yes, upon your trial. There is but two ways. Plead “Not Guilty”, or confess it. Sir Hardress Waller, we would not have you 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.’
Waller’s claim that his case differed to that of all the other defendants, because he had been in Ireland for so many years, was rejected by the court. The clearly bewildered Waller then pleaded, ‘In as much as I have said, I dare not say “Not Guilty”. I must say “Guilty”.’30
The prisoners seem to have assumed that they would be given the chance to speak freely, before pleading. Harrison and Robert Lilburne protested that being held close prisoner had deprived them of any legal advice. The majority pleaded not guilty, most likely because they now understood the finality of opting for ‘guilty’, which left the mercy of Parliament as their only hope. Pleading not guilty seemed to offer a prospect of salvation, a chance to be heard.
At the end of the long day, the court was told to reconvene at seven the next morning. Any jurors or witnesses who were late or absent would be fined £100. Samuel Pepys committed his view of these early proceedings to his diary: ‘At night comes Mr Moore, and tells me how Sir Hardress Waller (who only pleads guilty), Scott, Cook, Peters, Harrison, &c., were this day arraigned at the bar of the Sessions House, there being upon the bench the mayor, General Monck, my Lord of Sandwich, &c., such a bunch of noblemen as had not been seen in England. They all seem to be dismayed, and will all be condemned without question . . . Tomorrow they are to plead what they have to say.’31
Now the trial proper started, with Harrison, Scroope, Carew, Jones, Clements and Scott brought forward. It proved impossible for these six men to agree on who should be selected for their jury, out of the pool of eighty-six candidates, so Sir Orlando Bridgeman ordered that they should be tried individually. He selected Harrison as the first to be brought to the bar.
Finch, the solicitor general, gave the opening address. This must have been galling for the defendants: Finch had himself been accused of treason, twenty years earlier, and had only saved himsel
f by fleeing his accusers, several of whom were now on trial for their lives.
In his account of the trials, the regicide Edmund Ludlow referred to Finch with loathing – a common reaction among Puritans, scandalised by his immoral ways. Ludlow variously described him as ‘that grey-haired traitor and inveterate enemy to the good of the public’, ‘the old fornicator’, and as a man ‘old in wickedness as well as years’. Finch began by leading the court through the enormity of the crime of which he had once been accused, but which he now lay at the feet of others. ‘These things were not done in a corner’, he claimed, for ‘every true English Heart still keeps within itself a bleeding register of this story.’32
Now, Finch asserted, those who had overseen these infamous deeds must be punished: ‘My Lords, the actors in this tragedy were many, very many, so many, that sure their name is legion, or rather many legion.’ He then calculated who, and how many, comprised the body that could be termed as ‘regicides’: ‘The judges, officers, and other immediate actors in this pretended court, were in number about fourscore. Of these some four, or five, and twenty are dead, and gone to their own place.’ He calculated that another eighteen or nineteen had fled abroad, in a state of constant fear that they would be hunted down and brought to justice. Therefore, Finch concluded, ‘Twenty-nine persons do now expect your Justice.’33
Sir Edmund Turnor followed Finch, opening with a biblical reference to how Amaziah, King of Judah in the 8th century bc, had avenged his father King Joash’s death by slaying ten thousand victims. Turnor claimed that it was a sign of Charles II’s great mercy that he wanted only this select group of miscreants to stand trial for their lives. Turnor made it clear that the conviction of the accused was both vital and inevitable. He then turned his attention from the pack, to the singular figure of Harrison: ‘and so we shall call our witnesses, and doubt not, but to prove, that this man at the bar was the first, and not the least of these offenders’.34
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