. . . by the letter of the law, all persons charged to offend against the law ought to be tried by their peers or equals. What is the law if the person questioned is without peer?17
This point was legalistic, and to a fault. The King was to make it at his trial, and Cooke was easily to dispose of it, then and later, on the basis that no man – not even the King – was above the law. Magna Carta – the ‘law’ to whose letter Bridgeman referred – was King John’s guarantee to the barons that they would be tried by peers (i.e. by barons) and not by kings: if a king were charged with crime, then it would not breach the spirit of the Great Charter to try him before as distinguished and representative a group of judges as Parliament could put together.
Charles had three weeks to prepare, but he spent these December days walking the marshy moonscape around Hurst, gazing at the dark, fast-flowing Solent as if awaiting rescue by Rupert’s fleet. But the only ships on the horizon were from Parliament’s patrolling squadron. His quarters in the fort were makeshift, and his captors hoped that the discomfort would concentrate his mind: instead, it expanded his fantasies. When Cromwell’s cavalry clattered into the keep of the fortress on 19 December to take him to London, he welcomed the chance to rally his loyal subjects. They turned out along the route, to gawp and cheer ‘God preserve your Majesty!’ Thomas Harrison was in charge of the escort: the King had been told weeks before that Harrison was to be his assassin and was thunderstruck when told the identity of the handsome, gentle and finely attired colonel. The two men almost had an epiphany during pre-dinner drinks that evening at a stately home near Farnham. According to Sir Thomas Herbert’s eye-witness account:
A little before supper, his Majesty discovered Major Harrison at the far end of the room talking with another officer; the King beckoned to him with his hand to come nearer him; which he did with due reverence. The King then taking him by his arm, drew him aside towards the window, where for half an hour or more they discoursed together; the Major in his vindication assured his Majesty, that what was so reported of him was not true; what he had said, he might repeat, that the law was equally obliging to great and small, and that justice had no respect to persons; or words to that purpose; which his Majesty finding affectedly spoken, and to no good end, he left off further communication with him, and went to supper.18
It was typical of Charles that he took offence at Harrison’s proposition that justice was no respecter of persons. The King’s belief that he had no equal was an article of faith, and now a ground of his defence. At Windsor Castle, the King was tearfully greeted by another prisoner awaiting trial, the Duke of Hamilton. The duke had been visited by Cromwell the previous week, a visit which has proved as puzzling to historians as the flight of Rudolf Hess to another Duke of Hamilton three centuries later. The French ambassador conjectured that it was a last-ditch attempt to enlist the duke to persuade Charles to abdicate the throne in favour of Henry, his youngest son, whilst others have speculated that it may have been to offer the duke a plea-bargain if he gave evidence against the King. In fact, Cromwell went to Windsor at the Duke’s request,19 probably hoping he would divulge the names of Presbyterian MPs who had secretly supported the Engagement. For Charles, abdication was out of the question, and Hamilton’s evidence was hardly necessary for a conviction: the King’s approval of the Engagement with the Scots, and the letters seized from his cabinet after Naseby, provided ample evidence of aggression against his own people.
If such overtures did take place they were part of a process of testing all options before settling upon a trial. Cromwell’s elusive mind would have made itself up by 16 December – the day that Fairfax dispatched the troops to collect the King from Hurst Castle following a meeting of the Army council.20 Two days later Cromwell was asking the legal grandees for advice about the lawfulness of putting the King on trial, and Isaac Dorislaus returned to report that his mission to The Hague had been a failure. The Dutch government (the States General) had determined to go ahead with a commercial treaty with the Catholic rebel government in Ireland (the confederacy) which was willing to join Ormonde in support of the King. At this time there were worrying reports of Ormonde’s waxing strength as loyal Protestants flocked to enlist, and reports from Ireland, always exaggerated, had a propensity to cause panic in the stoutest London hearts. Moreover, Parliament was told of intelligence that Rupert was about to sail his fleet to Ireland to join Ormonde and invade Wales.21 This was the week when the spectacle of a third civil war loomed with frightening clarity: it would be fought by Ormonde’s royalist army, joined with the Catholic confederates and the Prince of Wales’s fleet which lay only two days’ sail from England, perhaps in new alliance with the awesome Dutch navy. The danger of an invasion from Ireland had been evident for some weeks: the news from The Hague would have confirmed Cromwell’s providential intimation that it was time for what Ireton and the Independents had been urging since the Remonstrance: the trial of the ‘Great Delinquent’.
The decision to put the King on trial did mean rejection (if it was ever seriously considered) of one obvious and time-honoured means of eliminating an inconvenient monarch. According to Clarendon, who was biased and in no position to know, the army had actually discussed the possibility of using poison ‘which would make the least noise’ or assassination ‘for which there were hands ready enough to be employed’. Tempting though it must have been to arrange an historic accident on the winding staircase of Hurst Castle, or to shoot Charles while he was trying to escape (as he often was), the real point is that the army did not take this easy way out. Its discipline was formidable: one officer suspected of encouraging Charles to flee from Carisbrooke so he could be shot in the attempt was court-martialled for his pains. The army firmly protected the life of the King, until it could be taken by process of law.
The choice was not just of a trial, but of an open and public trial by a traditional adversary process and not by court-martial. Clarendon complains that this was just another means of king-killing, albeit one ‘which would be most for the honour of the Parliament and teach all kings to know that they were accountable and punishable for the wickedness of their lives’. His mistake is in the assumption that a trial entailed conviction and execution: there were only a handful of officers in the Army Council committed to the death sentence. Cromwell’s own fatalistic preference was to let justice have its own momentum, and to see where it might lead. Openness was part of the Anglo-Saxon legal inheritance: the trial process which developed after abolition of medieval trial by ordeal was akin to a rather ill-conducted public meeting, involving members of the local community as witnesses, jurors and spectators. Publicity came to be regarded by common lawyers as a defining characteristic of a trial, and even the Star Chamber sat in open court.22 The open justice rule had not been applied to treason trials of other alleged royal miscreants, like Anne Boleyn and Mary Queen of Scots, which were for that reason alone legally questionable, so publicity would serve as a legitimating factor.
For non-lawyer MPs like Harrison and Cromwell and Thomas Scot, a city alderman, public justice had an altogether different meaning. It would show, quite literally, that they had nothing to hide. The King’s trial ‘was not to be done in a corner’. This was God’s work, and it would be done in the sight of God. These were men who had fought two wars against Charles and now knew they would have to fight a third against his Irish supporters. Their choice of an open trial procedure was not merely to conform with the common law and to deter future tyrants: it was to allow the world to witness the righteousness of their cause, and to let history judge the strength of their case.
The Army Council had an easy and entirely legitimate alternative to a painstaking and unprecedented public trial: the King was an enemy commander who could be court-martialled and then shot immediately, like the cavalier generals Lisle and Lucas at Colchester. The summary justice of the Provost-Marshall had been a feature of wars in England since Edward I: it had become a traditional means of condemning rebels of rank
not just after battles but throughout ‘turbulent times’. When prosecuting Essex for his revolt in 1601, Attorney-General Coke had explained to the court that ‘It was a great mercy of the Queen’s that he was not, according to the martial law, put to the sword’.23 It was merciful of the army – given that Charles had renewed the war by his treaty with the Scots and that his forces were still active and menacing – to put him on trial before a tribunal in which his innocence might be asserted. Under the laws of war, as understood at the time, kings had no immunity during hostilities: ‘In war the rules of honour applied universally, binding princes and men at arms equally’.24 This was the position in international law, agreed by Grotius and the main European jurists – including Alberico Gentili, the Regius professor of civil law at Oxford, an adviser to James I and otherwise a stout upholder of royal absolutism. Since the purpose of victory was to enjoy peace, a captured enemy commander – especially if untrustworthy or in a position to renew the strife – should be put to death. ‘A man who is dead renews no war’25 was the logic of international law in the mid-seventeenth century. In December 1648, it might have been precisely applied to put Charles I before a firing squad.
The decision instead to put Charles before a tribunal tasked to apply the common law, permitting him to justify his cause in public and requiring the prosecution to prove his guilt, was a step as unnecessary as it was unprecedented. In this sense, it was a daring decision, far in advance of the law as it then stood in England or, following the treaty of Westphalia, in the known world. There was no example to suggest that the trial of a Head of State was feasible: it would be necessary to find lawyers who could make it work.
On 21 December, Cromwell asked Whitelocke and Widdrington to put their legal advice in writing. Two days later they met Parliament’s legal clerk, Henry Elsyng, who told them he was pretending to be sick because he was opposed to the projected proceedings. A message came for the two great lawyers to attend the Committee to plan the King’s trial. ‘Are you thinking what I’m thinking?’ Whitelocke asked Widdrington, in as many words. ‘I think I am,’ replied Widdrington, ‘I would go anywhere to avoid it.’ ‘My coach awaits,’ responded Whitelocke. Then the two great lawyers, entrusted with the seal of state, rushed downstairs and drove furiously to Whitelocke’s country estate in Buckinghamshire, ‘till this busness is ended.’26 Little wonder that Cromwell was nervous: according to Bishop Burnet, a near contemporary, it was Ireton now who drove it on. He ‘had the principles and temper of a Cassius in him, and found out Cooke and Bradshawe, two bold lawyers, as proper instruments for managing it.’27
9
The Hare, Clutched: Cooke’s Charge
THE TWELVE DAYS of Christmas, a traditional festive binge of over-eating and drunkenness, had always been abjured by Puritans, so Parliament sat on Christmas Day to listen to petitions criticising its remissness in failing to bring to ‘due and impartial justice’ the King and the other ‘notorious incendiaries’ behind the Scots’ invasion. In a Boxing Day debate in the Commons, Cromwell spoke, elliptically but for the first time in public, on his attitude to the fate of the King:
If any man whatsoever hath carried on the design of deposing the King, and disinheriting his posterity; or, if any man had yet any such a design, he should be the greatest traitor and rebel in the world; but, since the Providence of God hath cast this upon us, I cannot but submit to Providence, though I am not yet provided to give you advice.1
Cromwell was still, at least in public, having it both ways: infuriatingly assuming the mantle of high priest of the oracle of providence, he was acknowledging the truth of what his top lawyers had told him on 18 December (that to depose the King was an act of treason and rebellion) but justifying it, reluctantly, as the dictate of destiny. His course was clear, but he was ‘not yet provided to give you advice’ because he had not yet found lawyers to give him advice as to how it might be achieved. Parliamentary counsel Henry Elsying, who had pretended a sudden illness when asked to serve on the committee to consider the future of the King, set up on 23 December, was replaced by Andrew Broughton, the mayor of Maidstone and a figure of considerable gravitas and experience.2
Charles, meanwhile, celebrated Christmas at Windsor, decked out from an expensive wardrobe of suits, gowns and cloaks newly made by London tailors in expectation of his entry into the city as head of state. Spurred by reports of this extravagance, the Commons on 27 December took its first vote against such royal waste of public money: it decided to end court ceremonials at Windsor and to reduce to six the number of servants paid from public funds to attend the King. They should no longer serve the King ‘on bended knee’, but wait upon him in a more dignified and less uncomfortable fashion.3
On the same day, the committee on the future of the King reported to the House that a special court should be established to try him, comprising judges who represented the interests of the nation. Its jurisdiction should last for only one month – a measure of the urgency that now attended the question. The committee was co-chaired by Thomas Scot the Puritan city alderman and Henry Marten, the first republican: as an indication of its importance, Cromwell was co-opted. It reported the following day with the draft of a charge, which was so straightforward that it was evident that the committee lacked expert legal assistance:
That Charles Stuart has acted contrary to his trust, in departing from the Parliament, setting up his Standard, making a war against them, and thereby been the occasion of much bloodshed and misery to the people whom he was set over for good. That he gave commissions to Irish Rebels and since was the occasion of a second war, besides what he has done contrary to the liberties of the subject and tending to the destruction of the fundamental laws and liberties of this Kingdom.4
In simple language, this charge encapsulated Parliament’s complaint against the King. It was a true bill in the sense that Charles could be proved to have committed those acts to which it referred, but the nature of his offence was unclear: the loose constitutional suggestion was that the King was obliged to exercise his power for the public good and might be arraigned for breach of trust if he exercised it for the public bad. This was the sort of argument that might pass muster in a tavern, but not in a criminal court.
The debates continued – on 30 December the House directed the committee to name some judges and ‘to make some special provision in case the King should refuse to plead to the charge against him’. Even at this early stage, the King’s gambit was predictable, and the failure to make ‘special provision’ for it was to prove costly to the parliamentarian cause. There is no doubt that the King had discussed tactics with his team of lawyers at Newport: the best criminal lawyer of the time, Matthew Hale, offered his services if Charles decided to recognise the court by pleading ‘not guilty’.5
On New Year’s Day the Commons began to get its act together – or at least its ‘Ordinance’, for so laws passed by Parliament and brought into operation without royal assent had been described over the previous six years. It ‘declared and adjudged’ that ‘it is treason for the King of England for the time to come to levy war against the Parliament and Kingdom of England’. This was certainly not a republican measure, since it assumed the existence of future kings. The Ordinance set out the prosecution case with much greater particularity and some literary style and flourish. It was passed in the Commons (according to some reports, by only twenty-six votes to twenty) but then stalled by the House of Lords when the dozen or so peers who attended objected to the retrospective definition of the law of treason. ‘If the King did levy war first’, complained the Earl of Northumberland, ‘we have no law extant that can be produced to make a treason in him to do; and for us, my Lords, to declare treason by an Ordinance, when this matter of fact is not yet proved, nor any law to bring to judge it by, seems to me very unreasonable.’6 They did not reject the Bill, but adjourned for ten days in an effort to stall the Commons, which called their bluff on 6 January by transforming its Ordinance into an ‘Act’ which it determined sh
ould become law irrespective of whether it was passed by the Upper House. This could not be justified on any pre-existing constitutional theory: to have the House of Commons, and a purged House at that, arrogate to itself the right to legislate without the approval of the Lords, was a step that could only have been taken by men who had decided that God, justice and national security all demanded the trial of the King.
The Commons was in urgent earnest now: it named 150 ‘commissioners and judges’ in its Ordinance, without waiting to obtain their consent. They included the chief justices of the three highest courts in England, who made their excuses hastily enough for their names to be omitted from a revised list which appeared in the ‘Act’ of 6 January. The defection which cries out for explanation was that of Parliament’s long-standing legal hero, Chief Justice Oliver St John. He had argued the case against ship money, had prosecuted Strafford and had led the Independents in Parliament during the civil war: he was Cromwell’s friend and relation. If he pulled out from principle, he never articulated it at the time, and was back in favour and in power as soon as ‘the great business’ was done – by others. The leading Puritan lawyers – St John, Lenthall, Whitelocke and Widdrington – were clever, calculating, formidable men: the silence in which they slunk away from the trial and the noise they made when they returned to adhere to the republic six weeks later suggests their motivation was more cowardice than constitutional conviction.
That Charles was responsible for waging war against his own people was a matter of historical record. The Act formally passed by the Commons on 6 January justified his trial on pragmatic grounds (to prevent his raising new ‘commotions, rebellions and invasions’) as well as on principle – the need to end the impunity hitherto accorded the monarch. The preamble appropriately expressed the long frustration and righteous indignation of the army and the Independents:
The Tyrannicide Brief Page 18
