by Jordan, Don
And so it was that two of the most fanatical, headstrong and stubborn characters of the seventeenth century met one another. Harrison’s extreme religious opinions were matched in rigidity by Charles’s view of himself as a king appointed by God to rule with absolute powers.* At Fareham that evening, the two men dined together. Given his situation, Charles decided a little flattery would not go amiss. He told Harrison that he could see by his physiognomy he was a valiant man. Having softened up his companion, he then said he had heard that Harrison had plotted to murder him but that now he had met him and seen his noble appearance he knew it could not be so. Harrison graciously replied that he hated all such ‘base, obscure undertakings’.18
The next day, they headed to Bagshot, where the king was entertained to lunch by Lord and Lady Newburgh. The Newburghs were royalist sympathisers and planned to help Charles escape. Their idea was that the king would complain that his horse had gone lame, whereupon Newburgh would provide him with an especially fast animal and Charles would race off into the distance. After lunch, Harrison spotted that the king’s retinue were being offered some fine horses. He immediately pointed out to Charles that his own cavalry horses were of similar fine quality. Realising this was Harrison’s way of saying he knew what was afoot, the king put all thought of flight from his mind.
As the troop approached Windsor, Charles passed within three miles of Runnymede, where King John had been forced into signing a document granting liberties to his people four centuries earlier. Charles felt himself made of sterner stuff than John. He would sign no agreement giving away his royal prerogatives. Among the clauses of the Magna Carta was one which Charles approved of very much. This clause stated that every man had the right to be tried by his peers. As the king had no peers, it followed he could not be put on trial. No matter how grave the misdemeanours of a ruling king, no matter how much he made them suffer, he could not be held accountable by his subjects.
This very point had thoughtfully been made by Charles’s father. In an instruction manual on monarchy, James I had described the condition of a king: ‘The absolute master of the lives and possessions of his subjects; his acts are not open to inquiry or dispute, and no misdeeds can ever justify resistance.’19
Charles had taken this to heart. James had also given some good advice: be a wise king, know one’s subjects, don’t be a tyrant, participate in the council of the land, choose a wife of the same religion, and rule in a Christian manner. Unfortunately for him, Charles ignored almost all of this. Now he was about to pay the price for swimming against the tide of Reformation England.
On the evening of 23 December, Charles completed his journey, passing under the portcullis of Windsor Castle in heavy rain. By now he was resigned to whatever turn events might take; but he was certain that he could not be put on trial, for he believed the laws of England did not allow it. A monarch was appointed by God and no one was above the monarch. This was held to be the case across all European kingdoms and was well understood.
The Rump Parliament had not moved so far with its revolutionary intentions to be stumped by existing laws. It was determined that a way would be found to try the king. On the same day that Charles arrived in Windsor, the Commons appointed a committee of thirty-eight MPs and lawyers to draw up a charge against him. Whitelocke and Widdrington were not among its members. However, when the committee called for them to attend on Christmas Day and again on Boxing Day, Whitelocke decided on what action to take. The affable lawyer was famous for his clear-sightedness. He informed his friend Widdrington that his coach was ready. The two friends made off as fast as Sir Bulstrode’s horses could gallop. Their swift departure provided Oliver Cromwell with a clear message regarding their thoughts on any attempt to try the king.20
News of his father’s impending trial reached the Prince of Wales, who was by then in Holland, the guest of his sister Mary and her husband Prince William of Orange. Charles’s younger brother James had already arrived at The Hague, having escaped England disguised as a girl. Despite the Christmas celebrations, this was a generally gloomy time for the members of the Stuart family. The atmosphere was lifted for Charles by his first real love affair. After a family breakup, the teenage beauty Lucy Walter found herself in The Hague where she became the lover of the republican Robert Sidney (younger son of the more famous Algernon). When the eighteen-year-old prince caught sight of her he was immediately captivated. Lucy jumped beds and launched into an affair with the prince that soon led to pregnancy. Despite the power of his first big fling, Charles devoted time to seeking ways to save his father from what increasingly looked like certain doom. Entreaties to the powers in France and in Holland to intervene came to nothing, as would desperate pleadings to Parliament and the army in England.
On the first day of 1649, the much-reduced ranks of the House of Commons decided that the king should be tried by a High Court created expressly for that purpose. The following day, the House of Lords rejected the proposal. The Commons now had to decide how far it should push its authority. After two days, the House declared that it was the supreme authority in the land and could pass laws without consent of either lords or king. On 6 January 1649, the Commons passed an Act setting up a special High Court of Justice to try the king.
At Windsor Castle, King Charles was kept well informed of these preparations. Though schooled since childhood in the art of never letting the regal mask slip, human frailty finally burst through. One of his courtiers wrote:
His Majesty hath received intelligence from Westminster that the General Council of the Army have resolved to bring him to a speedy tryall. All of which his Majesty doth very ill receive; for (with a sad dejected countenance, and tears trickling down his sacred cheeks) he saith that his conscience begins to dictate sad and dismall apprehensions to his memory and that he much feareth the clouds begin to gather to a head for the eclipsing and eradicating the splendour and glory of his days.21
On 13 January a parliamentary committee decided the king should be tried at Westminster Hall, the scene of many other historic trials, including those of William Wallace and the gunpowder plotters.
Charles now knew that his fate would shortly rest in the hands of those he could least wish to hold it: a court consisting of mere subjects who considered themselves his peers.
3
A WICKED DESIGN
8 January—27 January 1649
There was only one building in London big enough to stage the king’s trial: Westminster Hall, built at the end of the eleventh century on the orders of William II. Its glorious hammer-beam roof, commissioned by Richard II in the fourteenth century, required no internal supporting columns and provided the hall with the largest uninterrupted interior in England, measuring two hundred and forty feet by nearly seventy. It had been built for great events; Charles’s own coronation banquet had been held in it, as had those of many kings before. But then, so had many treason trials.
The question facing the trial’s organisers was twofold: how to give it legitimacy and how to make that legitimacy apparent to the people. The answer to the second part seemed relatively easy – the king should be tried in front of a large panel of judges and in the presence of the public, so that justice could be seen to be done. To facilitate this, all public sessions of the trial would be held in Westminster Hall.
The answer to the first part was more difficult. The task of giving the trial lawful authority involved much legal head-scratching. For the people of England, the trial of their king was the latest in a drawn-out series of miseries. The country was broken by war, there was widespread hunger and people lived in fear and uncertainty characterised by the witchcraft trials still held up and down the land.
Not many years had passed since the prosperous early period of Charles’s reign, when the country’s manufacturing had been growing and its overseas trade thriving. But at the same time, Charles alienated many sections of his people. From 1629 to 1640 he ruled without calling a Parliament and imposed forced loans from the gent
ry and aristocracy to raise finance. New customs duties were levied, to the anger of the business classes, who were further infuriated by the selling of trade monopolies to the highest bidder and – most explosive of all – the king’s expansion of ship money, a tax traditionally paid only by counties on the coast, to cover all counties in England.1 He then alienated Parliament over the balance of power. If that were not enough, he also alienated large sections of the population by dictating how they should worship.
Once Charles did call a Parliament, in 1640, the struggle became one between a king who longed for a pre-Reformation style of rule based on monarch and Church, and a Parliament that wished to keep the northern European Reformation firmly on track, with fewer powers for the king and more powers and religious freedom for the people. While the king longed for a medieval world of certainty and hierarchy, many of his people were turning in frustration to English political history, the classical world and the Bible for examples of how the powerful could be held to account. A heady brew of new and old ideas swirled around mid-seventeenth-century England. Those who were about to put the king on trial felt that somewhere in all of this, legitimacy could be discovered.
Judges were chosen by the Rump for the High Court of Justice to try the King. The court’s composition was designed to represent a cross-section of the non-royalist establishment – parliamentarians, lawyers, senior army officers and wealthy businessmen. As for the actual charge, that would be drawn up once the court was convened.
On 8 January 1649, at two in the afternoon, the High Court of Justice sat for the first time in a preliminary session, without Charles being present. The purpose was to choose court officials and decide how to announce the trial to the people. The meeting took place in the Painted Chamber in the Palace of Westminster. The room was a sorry sight. Once it had been the glory of the Plantagenet kings, its walls brightly painted with coloured images of saints, kings and queens; now the silvery afternoon light played across paintings dulled by four hundred years of soot and neglect.
The session did not start well. Two-thirds of those appointed by Parliament as judges failed to turn up. In all, 53 out of 153 took their places. The quorum had been set at twenty, so discussions went ahead.
Two clerks were appointed. Little is known of one of them, Andrew Broughton. The other, John Phelps, was to play a crucial role, arranging a daily shorthand record to supplement the notes taken by the stenographers. It is from these sources that we have most of what we now know about the conduct of the trial. Phelps was an ambitious young man from Salisbury, educated at Corpus Christi College, Oxford. Having been an assistant to the senior clerk of the House of Commons, he was an ideal choice. Next, the court selected four lawyers to conduct the prosecution. The most senior by far, the Lord Chief Justice, feigned illness and didn’t turn up. Another appointee also failed to show up. The two who agreed to participate were well qualified for the historic task. Isaac Dorislaus was an eminent Dutch academic who had been the first professor of ancient history at Cambridge before falling foul of royalist interests and being sacked for lecturing on Tacitus and the difference between legal and tyrannical monarchy.2 John Cook was a young lawyer who had made a name for himself in Dublin before becoming a reforming barrister in London. Dorislaus and Cook would make legal history by drafting the charges against the king. In essence, they would bring the first charges for war crimes against a head of state.3
Unless it was in use for official events, Westminster Hall was open every day as a marketplace for lawyers and booksellers and their clients. On the morning of 9 January, the hall was filled with the usual crowds of barristers, litigants and browsers at bookstalls. They were stopped in their tracks by a shrill trumpet blast. Through the north door entered six trumpeters and two companies of cavalry. At their head was the sergeant-at-arms, Edward Dendy, who declared that a special High Court of Justice was to be convened to try the king.
Dendy then rode to the City, where at the Old Exchange and in Cheapside, he bellowed out the proclamation again. He went on to St Paul’s churchyard where he informed the usual throngs of booksellers, idlers and pickpockets of the trial, accompanied this time by no fewer than ten trumpeters.
Following Dendy’s exertions, the court sat again on 10 January. Once more, most of the commissioners failed to appear. The most noticeable of the absentees this time was Sir Thomas Fairfax, who had attended the first session. Fairfax had made an extraordinary journey in his thirty-six years, from scion of a Yorkshire landowning family to head of the parliamentary army in two Civil Wars. Having signed the army remonstrance that named Charles as ‘the capital and grand author of our troubles’ who should be tried for ‘treason, blood and mischief’,4 and gone along with the purge of Parliament, when it came to the trial itself he discovered he was too much of a man of the old social order to see his king tried for treason.5 As his colleagues prepared for the final act, he silently left the stage.
Fairfax was far from the only judge absent from the Painted Chamber on 10 January. Of the possible 153, only 45 were present. Among the other absentees was John Bradshaw, a lawyer, who had yet to show up at all. In spite of this, the court elected him its Lord President and summonsed him to attend. The court was anxious about filling the post; normally it would have been taken by the Lord Chief Justice, Oliver St John, except that he, too, had declined to serve. Of those who did serve as judges, the numbers ebbed and flowed throughout the trial. Some, like Fairfax, appeared only once, while others attended every session.
The court now appointed a committee to consider how the king’s trial would be managed. Its membership included names that would feature prominently in another treason trial eleven years in the future – John Lisle, Nicholas Love, Gilbert Millington, Augustine Garland, Harry Marten, Thomas Challoner, Sir John Danvers, Sir Henry Mildmay.
At the next sitting, Bradshaw reluctantly put in an appearance. He asked for time to think about the honour being bestowed. After a further day of deliberation, he agreed to accept. The court appointed more committees to oversee various aspects of the trial; one was notable for being entirely composed of army colonels – among them men who would play a large part in all that was yet to pass: Edmund Ludlow, John Hutchinson, John Carew and Thomas Pride.
In the meantime, the committee that liaised with Dorislaus and Cook over the charges was progressing slowly. A new name was added to its membership – that of Lieutenant-General Oliver Cromwell. Two days later, the committee had ‘perfected the charge’. The court ordered that Cook, now promoted to solicitor-general, should ‘on behalf of the people of England, exhibit and bring into this court a Charge of High Treason and other High Crimes against Charles Stuart, King of England’.6
On the morning of Saturday 20 January, the court looked over the charge one last time. The nub of it was that the king was guilty of tyranny by waging war against his people for his personal advancement rather than the good of his subjects. Due to his actions, tens of thousands of his subjects had died in two wars, the first from 1642 to 1646 and the second in 1648. The charge was inscribed on parchment and signed by Cook. The court then adjourned to Westminster Hall to sit in judgment on the king of England.
At twelve noon, a procession entered the vast, echoing hall to begin the trial that would ultimately establish the supremacy of Parliament over the crown, increase religious freedom with the Toleration Act of 1650 and lead to the independence of the judiciary in 1652. This was the true revolution that would change the country for ever – not the ‘glorious revolution’ of 1688, which merely restored some of the innovations brought about in 1649. Although generations of writers have sought to downplay the importance of the event and its participants, the first war crimes trial in history was to provide the basis of the rights and freedoms we take for granted today.
The procession was led by Edward Dendy, bearing the great mace of the House of Commons. An assistant carried the ceremonial sword. Then came the Lord President of the Court, John Bradshaw, in ceremonial robes, acco
mpanied by sixty-six other commissioners, all dressed in black. They were escorted by twenty-one soldiers carrying long-handled ceremonial spears known as partisans. Making up the procession were the various office-bearers of the court, including the two clerks, Broughton and Phelps.
Bradshaw proceeded to a long stage that had been built for the judges and jury. In the middle was his seat, a grandiose crimson velvet chair with a desk before it bearing a velvet cushion. As Bradshaw sat he made quite a sight. He wore his armour under his judicial robes and on his head a ridiculous conical hat covered with beaver skin and lined with steel. It was reported that his wife had made him wear it as she feared he might face an assassin’s bullet at any moment. In contemporary engravings, Bradshaw looks like an iron-clad Humpty Dumpty.
Although reluctant, John Bradshaw was bravely doing what he believed was his duty. Bradshaw had been thrust unwillingly into the public glare – the king himself said he had never heard of him, but then the king was more likely to know the names of fifteenth-century Venetian painters than those of his own subjects. The second son of a Cheshire landowner, Bradshaw had prospered as a barrister, making a name for himself by successfully defending John Lilburne, the Leveller and freedom campaigner known as ‘Freeborn John’. In an appeal against the charge of publishing unlicensed literature, Bradshaw, aided by John Cook, had made legal history, arguing the defendant’s right to silence – later to become a central tenet of British criminal trial procedure.*
Bradshaw sat in pomp, looking out over the medieval vastness of the hall, now reconfigured for the trial. On either side and behind him sat his fellow judges in two long rows. At his right hand sat John Lisle, whose experience as a practising judge would be invaluable on points of procedure. Lisle was also a member of parliament and had chaired the committee that set up the New Model Army. On Bradshaw’s left sat William Say, another eminent lawyer, who had acted as the court’s president until Bradshaw agreed to the role. At a table covered by a Turkish carpet sat the two clerks. Before them was an empty space in which a wooden dock had been erected, stretching across the width of the hall. In the middle of the dock was a large seat for the accused, leaving plenty of room on either side for guards, attendants and messengers. Behind it was a space for several hundred soldiers. Finally, two-thirds of the hall was open for the public to attend, behind stout iron rails. On either side, high wooden galleries reared up, enabling more people to watch from above.
