Before this Courte also were tryed those eighteene who had rendred themselves upon the proclamation published by the advice of the two Howses. And though they were excepted out of the act of indemnity as to life and estate, yet was provission made by the said act that, if found guilty, the sentence should not be executed against them as to life, save as should be declared by an act of Parlament; the names of whom were, Sir Hardress Waller, Mr. William Heviningham, Alderman Isaac Pennington, Colonell Henry Martyn, Mr. Gilbert Millington, Colonell Robert Tichborne, Colonell Owen Rowe, Colonell George Fleetwood, Colonell Robert Lilborne, Mr. Henry Smyth, Colonell Edmund Harvey, 889 Colonell John Downes, Colonell Vincent Potter, Mr. Augustine Garland, Mr. Symon Mayne, Colonell James Temple, Mr. Temple and Colonell Thomas Wayte. Sir Hardress Waller, as you heard before, confessed the inditement. So did Colonell Fleetwood. The rest at first pleaded not guilty. But when they came particularly to pleade for themselves, Colonell Tichbourne, Colonell Downes, Colonell Harvey and severall others (whether out of feare of death, love of life, hopes of favour, or being under a temptation by reason of old age, I cannot say) pleaded ignorance, and acknowledged the guilt, but denyed the mallice. Some others, as Colonell James Temple, Mr. Peter Temple and Colonell Vincent Potter, confessed matter of fact, but denyed the guilt; amongst which last number was Colonell Henry Martyn, who in shorte spake as much as could be said in that case, considering what before the Courte had overruled. He being charged with signing and sealing the praecept for summoning the Courte, and the warrant for execution, and for sitting almost every day, and particcularly the day of sentence, answered that he declyned not a confession as to matter offact, the mallice set aside. But being told by the Courte that mallice is implyed by the law in the act itselfe, and it being observed by the droling councell that he was of oppinion a man might sit upon the death of the King, sentence him to death, signe a warrant for his execution, meekely, innocently, charitably and honestly, he replyed, I shall not presume to compare my knowledge in the law with that of the learned gentleman, but according to that poore understanding of the law of England that I was capable of, there is no fact that he can name that is a cryme in itselfe but as it is circumstantiated. Of killing a watchman, which had bin instanced, a watchman may be killed in not doing his office, and yet no murder.