Soon he was in his coach, heading across London for St James’s. At first the captured King had been treated with deference, accorded many of the trappings of kingship; but gradually he was deprived of his comforts, and his retinue; his dinners became increasingly modest, and eventually he chose to eat alone in his room. ‘There is nothing more contemptible,’ he is said to have uttered, coming to terms with his new lot, ‘than a despised prince.’36
Chapter 2
A King on Trial
And if the Parliament and Military Council do what they do without precedent, if it appear their duty, it argues the more wisdom, virtue, and magnanimity, that they know themselves able to be a precedent to others.
John Milton, ‘The Tenure of Kings and Magistrates’, 1649
The army and their hand-sorted Members of Parliament, known as the Rump, had opted for the high-risk option of a public trial; but no King of England had been tried in open court before.* Indeed, procedure in legal cases had the accused being challenged in the name of the Crown. To prevent a descent into confusion and farce, it was essential that the legality of the proceedings be established, as best it could. The format, the charge, the dignity of the court – all needed to be respectable. Crucially, his accusers needed to show on what basis they were entitled to hold a king to account.
This was a many-pieced jigsaw that took shape, day by day, during the first three weeks of January 1649. On New Year’s Day, the Rump declared that it was treason for the King of England to wage war against Parliament and the kingdom. The House of Lords unanimously rejected this impeachment on 2 January, at the same time rebuffing the ordinance for the King’s trial. The Lords thought they could delay matters by adjourning for a week, but the Rump was not to be detained. When the Lords returned to their chamber, they found its doors padlocked: given their stance, they would not be allowed to be part of this delicate and unprecedented process.
The Rump reasserted its aims in the Commons on 3 January, and was pleased the next day to hear from Augustine Garland, one of the many lawyers in the House, the name of the body that was to sit in judgment of Charles: ‘the High Court of Justice for Trial of the King’. It had a weighty ring to it, given added ballast by the bold assertion that, ‘The Commons of England assembled in Parliament declare that the people under God are the origin of all just power. They do likewise declare that the Commons of England assembled in Parliament, being chosen by and representing the people, have the supreme authority of this nation.’1
The actual definition of ‘Parliament’ was the trinity of Crown, Lords and Commons. This declaration of unilateral power by one House – the first of its kind in English history – made it clear that the Rump was prepared to stand as the sole law-making body. The King, the Lords and the excluded members of the Commons were placed to one side, impotent and irrelevant.
On 6 January, the Rump passed an Act for Charles’s trial, claiming that:
Charles Stuart, the now King of England . . . had a wicked design totally to subvert the ancient and fundamental laws and liberties of his nation, and, in their place, to introduce an arbitrary and tyrannical government; and that, besides all other evil ways and means to bring this design to pass, he hath prosecuted it with fire and sword, levied and maintained a cruel war in the land against the Parliament and Kingdom, whereby the country hath been miserably wasted, the public treasure exhausted, and infinite other mischiefs committed.2
One hundred and thirty-five commissioners were appointed to the High Court of Justice that day. ‘All the chief officers of the army were named, and accepted the office,’ the Royalist Earl of Clarendon later wrote, ‘and such aldermen and citizens of London as had been most violent against peace, and some few country gentlemen whose zeal had been taken notice of for the cause, and who were like to take such a preferment as a testimony of the Parliament’s confidence in them, and would thereupon embrace it.’3 Only twenty of these men needed to be present at any one time for the court to function, which was helpful since its work had to be completed quickly: the ordinance declared that this High Court of Justice should enjoy its powers for just one month.
The commissioners were instructed to meet in the Painted Chamber of the Palace of Westminster on 8 January, the first of sixteen such meetings that were held there for the preparation and management of the trial. Throughout this time of tension and fear, the vaults beneath the Painted Chamber were frequently searched for explosives.
There proved to be a dearth of leading lawyers prepared to lead the revolutionary court. Several of the most eminent, whether dissatisfied with the legality of the process, frightened of future retribution, or with an eye to both concerns, decided to make themselves scarce. John Selden and Bulstrode Whitelocke retired from London. Meanwhile Lord Chief Baron Wilde, Chief Justice Henry Rolle and Chief Justice Oliver St John refused to serve in the High Court of Justice.
On 10 January the commissioners chose as their lord president – the officer who would act as their spokesman, questioning witnesses and controlling the King’s proposals – John Bradshaw, a man not in the first flight of lawyers. Bradshaw had initially declined the position. He only made himself available after braving a tirade from his wife, who was furious that he would think of accepting a role that would invite danger into his and their family’s lives.
Bradshaw had a reputation for competence, for efficiency, for pleasing litigious clients who visited his Gray’s Inn chamber – and for being incorruptible. The poet John Milton, ever vocal against the Crown, was proud to call Bradshaw a friend, and a brave one at that, given that the position he agreed to take ‘was great and fearful, almost surpassing all example, marked out as he was by the daggers and threats of so many ruffians’.4 Bradshaw was provided with a sizeable bodyguard, not only for his protection, but to enhance his status – it was essential to inflate his apparent importance, since he was to sit and judge a king. His official residence became the dean’s house at Westminster. He was called ‘lord president’ outside the courtroom, as well as in it.
The High Court of Justice had already chosen its counsel for the prosecution, Attorney General Anthony Steel. Alongside him they ran Solicitor General John Cook. Clarendon, himself a lawyer at the time, characterised this pair as ‘eminent for nothing but their obscurity, and . . . they were men scarce known or heard of in the profession’.5 There was some truth in Clarendon’s haughty remarks. Cook was the son of a Leicestershire farmer. He had studied theology in Switzerland, cared deeply about the plight of the poor, and had served Charles’s most unpopular lieutenant, the Earl of Strafford. But he was by now no friend to the King: in 1647 he wrote of his belief that only the army could implement the changes necessary for England to find a peaceful post-war settlement.
Friends and colleagues tried to make Cook rethink his prominent involvement in such a singular and fraught business. James Nutley, a young student in the Temple, remembered going to Cook at this time: ‘I desired him to consider the dangerous consequences of such a proceeding; I may say I did with tears in my eyes, for I had a very good respect to the Gentleman for his profession’s sake, being learned therein: truly my lord he did answer me thus, “I acknowledge it is a very base business but they put it upon me, I cannot avoid it, you see they put it upon me.” ’6 Nutley was adamant that, at this early stage, Cook said the King’s life was in no danger, and that the High Court of Justice simply wanted Charles to submit to Parliament.
On 10 January, the commissioners instructed their legal team to prepare the charge. John Aske and Isaac Dorislaus were to assist the attorney general, as junior counsel. Aske was a relative of Lord Fairfax, the commanding officer of the New Model Army. Dorislaus was a Dutchman, born to a deeply Calvinist father: his two brothers were named Abraham and Jacob.
Dorislaus came to England as the first lecturer in History at Cambridge University. His inaugural lecture caused a sensation. He took as his theme ‘The Power of the People under the Kings’, and claimed that it was possible for kings to be
subject to the law and that they must only exercise legitimate authority. This he followed with a speech declaring that the good citizen was he who resisted the tyrant, basing his argument largely on the writings of the Roman historian Tacitus. Serious questions were asked about this dangerous rhetoric. Matthew Wren, the Master of Peterhouse, was particularly concerned that Dorislaus seemed to be making the case for republicanism and regicide (the killing of a king), which, he dared fancy, were ‘appliable [sic] to the exasperations of these villainous times’.7 Aghast at Dorislaus’s politics, Wren ensured that the university delayed his appointment to the doctorate that was his entitlement, for four years.
During the First Civil War, Dorislaus had served as Advocate of the Army. He was active in the suppression of conspiracies that aided the Crown, and had tried to introduce martial law to facilitate his dealings with suspects. The Second Civil War saw him appointed Judge of the Admiralty. He was also sent to his native Netherlands to see if he could persuade his compatriots to join with Parliamentary England in a Protestant alliance against Charles. Dorislaus was highly regarded by Oliver Cromwell, and it was he who approved the Dutchman being brought in to help frame the charges against the King.
Meanwhile perhaps Anthony Steel had received similar warnings to those urged on Cook; for, two days before the case began, the attorney general suddenly claimed grave illness and insisted he was incapable of discharging his duties. With Steel’s withdrawal from the case, it was decided that Dorislaus would lead the prosecution, once the King had – as was anticipated – pleaded not guilty.
MPs now busied themselves in laying the foundations for this unique legal enterprise. A committee of eight was appointed, any two of whom could act together to oversee the preparation and management of the trial. The lawyer Augustine Garland, who had presented the ordinance for the ‘Erecting of a High Court of Justice’, acted as the committee’s chairman until Bradshaw’s appointment as lord president came into effect.
Another significant figure in the framing of the trial was Nicholas Love. He was a son of the headmaster of Winchester College and a protégé of William Lenthall, the Speaker of the House of Commons. Love, a lawyer of Lincoln’s Inn, would be included in four of the committees that prepared the ground for the trial. He believed, before proceedings got under way, that they would inevitably end in Charles’s favour, the charge being ‘nothing, but what he knew the K[ing] could clearly acquit himself of’.8
Also on the committee was Sir John Danvers, a sixty-five-year-old veteran of Parliament. As a younger man he had been so physically beautiful that, when he was touring France and Italy, ‘people would come after him in the street to admire him’.9 Danvers returned to England with an equal appreciation of continental aesthetics, particularly in the area of landscaping. ‘’Twas Sir John Danvers of Chelsea,’ a grateful contemporary recorded, ‘who first taught us that way of Italian gardens.’10
Insatiably extravagant, Danvers had taken as his first wife a wealthy widow twice his age, who was the mother of ten children. His family had suffered mixed fortunes through its dealings with the Crown. His oldest brother had been beheaded at the instruction of Elizabeth I, after taking part in the Earl of Essex’s rebellion. Another brother had been created Earl of Danby, early in Charles’s reign, and remained something of a royal favourite. Sir John had also enjoyed the King’s esteem, serving as a senior courtier. However, when civil war broke out he sided with Parliament, serving in its army as a colonel.
The Puritan Sir Henry Mildmay had been a loud critic of the King during his last, ultimately doomed, negotiations with Parliament, warning that Charles was ‘no more to be trusted than a lion that hath been caged, and let loose again at his liberty’.11 A courtier with particular responsibility for the royal jewels, Mildmay was able to deliver up the Sword of State for the King’s trial. Borne in front of Bradshaw, it gave proceedings added solemnity, and an air of authenticity.
John Lisle also sat on this key committee. They said he was ‘bred to the law’.12 An experienced legislator in the Commons, he was also a proven ally of Cromwell. His hostility to the King had reached new heights when the contents of the royal baggage train had been read after their capture at the battle of Naseby. The correspondence proved Charles’s willingness to bring foreign troops to his aid in the Civil War. While Parliament felt justified in seeking Scottish support, it deemed the Crown’s recruitment of men from overseas, to kill Englishmen, to be a grievous betrayal. Lisle would go on to be Bradshaw’s busy assistant in the trial of the King, sitting next to him so he could communicate legal points to the lord president as the case progressed.
The committee was completed by a trio of highly intelligent men whose colourful private lives scandalised their straitlaced colleagues with behaviour more generally associated with the despised enemy Cavaliers. Gilbert Millington, a barrister, had an appetite for committee work, mainly in his native Nottinghamshire. He possessed a reputation for professional thoroughness, and also for personal laxness: he frequented taverns and brothels, and further shocked contemporaries when, on the death of his wife, he married a sixteen-year-old barmaid.
Similarly, Thomas Chaloner was, according to the contemporary academic, John Selden, ‘as far from a Puritan as the East from the West’.13 Chaloner was a hard-drinking womaniser, who counted among his lighter weaknesses a delight in practical jokes. One of his favourites was to go early to Westminster Hall and drop a ridiculous tidbit into conversation, before returning later the same morning to see how far his piece of nonsense had spread. He enjoyed hearing how much it had gained in the retelling.
Well-travelled, well-mannered and well-read, Chaloner’s famed sense of humour did not extend to his view of the King. The Crown had reneged on promised payments to the Chaloners on acquiring the family’s alum mines. Charles aggravated this shabby treatment by passing the benefit of the mines to his courtiers at a further profit. This, Chaloner could never forgive.
Chaloner’s partner in flamboyant loose-living was Henry Marten, the republican son of a judge, whose quick wit brightened debates in the Commons. The King found Marten altogether less amusing: indeed, Charles and Marten held one another in mutual contempt. The King was, one of his close circle recalled, ‘so great an example of conjugal affection, that they who did not imitate him in that particular did not brag of their liberty’.14 Meanwhile a contemporary recorded what everyone knew: Marten was ‘a great lover of pretty girls’.15 This moral mismatch reached its defining moment before the Civil Wars, when both men were attending horse races in London’s Hyde Park. Spotting Marten nearby, Charles ordered: ‘Let that ugly rascal be gone out of the park, that whoremaster, or else I will not see the sport.’16
Marten quit the royal presence, but he never forgot nor forgave such a crushing humiliation. The King had made a lifelong enemy of this fiercely intelligent and charismatic politician, one of the first to write public tracts in the mid-1640s in which Charles was removed from his royal pedestal and addressed as a common man – one who deserved to be put to death, like any other, if found guilty of murder. During the Second Civil War, Marten raised a regiment of irregulars, many of them republican Levellers, who marched under the uncompromising banner, ‘For the People’s Freedom against all tyrants whatsoever’.17
Marten had a knack for coining pithy phrases. Charles’s Great Seal – effectively, his badge of office – showed him sitting in wisdom and splendour on his throne on one side, while on the reverse he was charging bravely into battle. His God-given kingship and his defence of Protestantism were proclaimed on both sides. On 4 January a committee was formed to design a fresh Great Seal, to lend heft to the new status quo. Millington helped, but it was Marten who, contemporaries recorded, did most of the work. He it was who composed the winning construct: Exit Tyrannus Regum ultimus – ‘The last tyrant of kings has gone’. When the assembled commissioners and their lawyers were ensconced in the Painted Chamber, trying to establish in whose name the charge against the King should be mad
e, it was Marten who stood up, with the winning line, ‘In the name of the Commons and Parliament assembled, and all the good people of England.’18 It was the final call to arms before the commissioners rose to begin the judgment of their King.
While Marten thrilled at the prospect of a republic being established, there were others among the commissioners, even those with republican leanings, who believed that public trial by part of Parliament was not the correct way to deal with the King. The young MP Algernon Sidney, a hero of the victory on Marston Moor (where he was wounded) and the governor of Dover Castle, recalled the sharp exchange he had with Oliver Cromwell over the legal soundness of the High Court of Justice. ‘First,’ he told Cromwell, ‘the King could be tried by no court; secondly . . . no man could be tried by that court.’ Cromwell would have none of it: ‘I tell you,’ he replied, ‘we will cut off his head with the Crown upon it!’19 Sidney departed, refusing to have anything to do with a process he viewed as being flawed constitutionally, and in point of law.
By 20 January, Cook, Dorislaus, Aske and their helpers had compiled the charge, the preamble probably owing much to the Dutchman, since its themes resonate so closely with the declaration of independence all of his educated compatriots knew so well. This was the Act of Abjuration submitted by the Netherlands against their hated Spanish ruler, Philip II, in 1581, which opened with:
As it is apparent to all that a prince is constituted by God to be ruler of a people, to defend them from oppression and violence as the shepherd his sheep; and whereas God did not create the people slaves to their prince, to obey his commands, whether right or wrong, but rather the prince for the sake of the subjects (without which he could be no prince), to govern them according to equity, to love and support them as a father his children or a shepherd his flock, and even at the hazard of life to defend and preserve them. And when he does not behave thus, but, on the contrary, oppresses them, seeking opportunities to infringe their ancient customs and privileges, exacting from them slavish compliance, then he is no longer a prince, but a tyrant, and the subjects are to consider him in no other view.20
Killers of the King Page 4
