Whereas it is notorious that Charles Stuart, the now King of England, has had a wicked design totally to subvert the ancient and fundamental laws and liberties of this nation, and in their place to introduce an arbitrary and tyrannical government; he has prosecuted it with fire and sword, levied and maintained a cruel war in the land against the Parliament and Kingdom, whereby the country has been miserably wasted, the public treasure exhausted, trade decayed, thousands of people murdered, and infinite other mischiefs committed: for all which high and treasonable offences, the said Charles Stuart might long since justly have been brought to exemplary and condign Punishment. Whereas also, the Parliament well hoping that the restraint and imprisonment of his person, after it had pleased God to deliver him into their hands, would have quieted the distempers of the Kingdom, did forbear to proceed judicially against him; but found by sad experience, that their remissness served only to encourage him and his accomplices in the continuance of their evil practices, and in raising of new commissions, rebellions and invasions. For prevention therefore of the like or greater inconveniences, and to the end that no Chief Officer or Magistrate whatsoever may hereafter presume traitorously and maliciously to imagine or contrive the enslaving or destroying of the English nation, and expect Impunity for so doing . . .7
This declaration, which a few days later was to serve as Cooke’s brief, identified a particularly grave abuse of power – directing mass-murder, in furtherance of a design to achieve absolute power – and a compelling reason for prosecuting, namely to end impunity for heads of state, both to enable retribution and to deter future monarchs from seeking thus to destroy the liberty of the people. The denial of impunity to any future ‘Chief Officer or Magistrate’ had a special significance: kings would henceforth preside over the government of the realm without divine ordainment or sovereign immunity.
For royalists, the flaw in the Act which erected the High Court of Justice was simply that it touched the untouchable: every sovereign had absolute legal immunity from criminal prosecution. There was another objection, namely that it was the result of a vote of a purged Commons, implemented without the approval of an adjourned (but not yet abolished) House of Lords. As young Algernon Sidney claimed he said to Cromwell, ‘First, the King can be tried by no court; secondly, no man can be tried by this court.’ Cromwell’s alleged reply – ‘I tell you, we will cut off his head with the Crown upon it’ – was a pithy rejection of the discreditable doctrine that a king could get away with murder, but did not confront Sidney’s second point – that the court had been unlawfully established, since the Act had not passed the House of Lords, much less had it received the royal assent.
Cromwell might have said (Oliver Wendell Holmes said it, 300 years later) that the constitution is not a suicide pact. What was in effect happening – although there was no written constitution to express it in these terms – was a state of emergency, occasioned by an impending resumption of hostilities. The army, in the name of General Fairfax, had in effect declared martial law, under which it would govern through the medium of an assembly containing only those elected representatives whom it trusted to legislate with England’s real interests at heart. The elimination of Holles and the Presbyterian MPs had been justified on the grounds of their corruption, but peculation was not the problem: it was the corruption of their reason which held fast to the notion that there was no alternative but to trust Charles Stuart, the enemy commander, with the governance of England. It was a true case of necessity and it is a mistake to think that necessity knows no law. It calls for a different kind of law. The army and its supporters rejected a lawless solution (assassination), and declined the lawful but summary justice available under martial law, which permitted enemy commanders to be put before a firing squad. They also rejected the option of a jury trial at the Old Bailey; not because they feared the outcome but because the common law denied juries (made up of commoners) to those of royal blood and they wanted to be as legalistic as possible in this trial without precedent. They were seeking to clutch at Cromwell’s swimming hare – the shred of legality – and on 4 January 1649 they found it in the concept of representative government, which entailed the power of the Commons to make law without assent either of the King or of the Lords:
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. They do likewise declare that whatsoever is enacted and declared law by the Commons of England assembled in Parliament, has the force of law, and all the people of this nation are included thereby, although the consent and concurrence of the King and House of Peers be not had thereunto.8
For all the derision that was later heaped upon the pretensions of ‘the Rump’, this was in fact the first modern enunciation of democratic principle by a legislative body purporting to embody it, even though MPs were elected only by wealthy males and ‘democratic’ was at this time a word of insult, hurled by royalists at Levellers and Independents alike. Yet the 135 men nominated by the Act of 6 January to sit as judges (although they were termed ‘commissioners’ and have gone down in history as the King’s ‘judges’) were representative of ‘the most respectable and substantial elements in the country’ – landed gentry, mayors and recorders from a dozen major towns; MPs, lawyers, London aldermen and senior army officers. Some eighty of these individuals attended during the trial and there can be no doubt, despite post-Restoration backsliding by a few, that they did so voluntarily and from ‘a sincere conviction that no other course was open to them as God-fearing Christians and lovers of their country’.9 A typical answer to the call was that of Colonel John Hutchinson; his wife Lucy explained how he prayed for guidance before accepting and found ‘a confirmation in his conscience that it was his duty to act as he did’.10 These judges were attendants upon providence: they had embarked upon a mission, but where it would take them nobody at this stage – certainly not Fairfax and probably not even Cromwell – knew for certain.
The Act to Establish the High Court of Justice provided that the court was to have a quorum of only twenty – a reflection of the fact that a number of its judges were away from London on army service and that in the event of the feared invasion, many more would be absent. Others would have difficulty in attending from homes in the provinces, and some would have conscientious objections to serving. They were endowed with discretion to sit wherever and whenever they chose; to administer oaths and to examine witnesses and to appoint all necessary officers and attendants. They were enjoined to charge the King and to receive his ‘personal answer’ to the charge ‘or in default of such answer, to proceed to final sentence, according to justice and the merit of the cause; and such final sentence to execute, or cause to be executed, speedily and impartially’. The death sentence was not inevitable: the King’s answer, or else the ‘merit of the cause’ would determine the appropriate punishment.
A dignified defence, an apology, a show of remorse for the bloodshed on both sides, an offer to share power according to the Nineteen or the Newcastle propositions, or to stand aside in favour of Charles II or Henry IX: the King had everything to play for, if he chose to play the justice game at all. That was not what he had told a well-wisher who asked on Christmas Day what he planned to do if a charge were brought against him. He was reported to have replied ‘I would not give any answer. If they put me on trial I will die patiently, like a martyr.’11
The Act requested General Fairfax to provide all necessary assistance to the court. The general was unhappy about the prospect of the King’s execution, although he had approved the purge of the Commons and then its provisions for the trial. He attended the first meeting of the court, on Monday 8 January, along with fifty-two of the other appointed judges, although he absented himself from the court thereafter, on the ground that he had to run the country. His initial presence gave the tribunal
the imprimatur of the army’s high command.
The judges had assembled for this brief inauguration in the Painted Chamber at Westminster: apart from directing the sergeant-at-arms to proclaim the court’s existence, and appointing its clerks and ushers, their discussions were mainly about the selection of prosecuting counsel.12 Dr Dorislaus would have been nominated by Cromwell, while Fairfax’s input may have been to put forward a relative, John Aske, as a junior counsel. There are no records of the discussion, but Cooke would have been approved by his friends Edmund Ludlow and Henry Ireton and by Nicholas Love, his contemporary at Wadham, who were present at this first meeting. The minutes refer only to the ‘nomination’ of Cooke as an officer of the court: he was not formally appointed as Solicitor-General until the next meeting on Wednesday 10 January, presumably after wider soundings had produced no objections, and no better candidates who might be prepared to accept the brief. The more important speaking role of Attorney-General, i.e. the chief prosecutor, went to William Steele. He was the barrister who had prosecuted Captain Burleigh, a somewhat comic cavalier, who had marched on Carisbrooke to liberate the King at the head of a rag-tag band of curious children, one of them blowing a tin whistle. The army had not been amused, and Steele had managed to persuade the jury that Burleigh was guilty of the crime of compassing and imagining the death of the King – by dint of trying to set the King free. It was advocacy of this class that would be needed, if Charles himself were to be convicted of treason.
The judges who first convened on 8 January met regularly in the Painted Chamber to make preparations for the King’s trial, which did not commence until Saturday 20 January. Between fifty and sixty commissioners attended each preparatory session, in the long tapestried room adjacent to the House of Lords and overlooking the gardens of a fine house built by the wealthy scholar Sir Robert Cotton, which stood between the Parliament buildings and the river. They sat at trestle tables, their proceedings illuminated in the winter gloom by candles and the flames thrown from a well-tended fire. The proceedings were minuted by two clerks – John Phelps and Andrew Broughton – while six ushers danced attendance and spectators stood at doorways to observe, other than during private sessions when the room was cleared of ‘strangers’. Cromwell and Ireton were present at most of the meetings, their eagerness indicated by the fact that they were usually among the first to sign the roll-call. Other prominent participants were Henry Marten, Edmund Ludlow, Nicholas Love, Thomas Scot, John Lisle and Thomas Harrison. Lucy Hutchinson, the wife of Colonel John Hutchinson, was to attest in her memoirs to the keenness and conscientiousness with which they all went about ‘the great business’: her husband believed it was his duty to his country and his God, ‘although he was not ignorant of the danger he ran, as the condition of things then were’.13
They had been catapulted into unknown terrain: some had studied at the Inns, but the group was collectively lacking in forensic experience. Their first step had been sure enough: trumpeting and drumming traditionally proclaimed an assize, and Sergeant Dendy made a great impression as he clattered on horseback into the startled courts at Westminster Hall, waving the Parliament’s mace and proclaiming the King’s trial. He was accompanied by a troop of horse, as well as ten trumpeters and army drummers. The Commons ordered him to repeat this noisy spectacle around the town, at St Paul’s and Cheapside and then the Exchange: it was noted with satisfaction that ‘the streets are thronged with spectators, without the least violence, injury or affront publicly done or offered’. For all the purported love the people bore their King, and for all the Presbyterian hostility towards the army and the purged Parliament, there was something about a trial – something almost supernaturally appealing about its promise of ‘justice’ – that was difficult to reject out of hand. Dendy’s ceremonial overture aroused public expectations, and the commissioners had very little time (the Act allowed them no more than a month) to raise the curtain.
The commissioners were at a loss without legal leadership. They could do little until they found a judge prepared to preside and counsel prepared to prosecute. On 10 January, they appointed Sergeant John Bradshawe as their president: he had recently been made chief justice of Chester (i.e. of Wales) and had sat as sheriff in the city, where he had strong support among Independent councillors. Bradshawe’s family were unhappy that he should play such a leading part in the proceedings – when he arrived for the next meeting on 12 January he earnestly begged to be excused the office. The commissioners refused – there was no one else of judicial rank – and confirmed him as Lord President, a role that he performed punctiliously from then on. His nervousness was not feigned and his reluctance was not entirely, as Cooke would have it, ‘out of a humble spirit’:14 the dangers were real and immediate. To calm his wife’s fears, Bradshawe lined his broad-brimmed hat with lead to protect his temples from musket fire: the hat is exhibited today at the Ashmolean Museum in Oxford, a reminder both of the danger of these times and of the smallness of the crania of those who lived through them. His lodgings at Gray’s Inn were deemed too exposed to assassins, and a house was found for him in New Palace Yard (and later, the dean’s house at Westminster Abbey) where he was guarded around the clock by twenty officers and supplied with the same provisions as the King, who was to be lodged at the Cotton House.
On 10 January the court approved the nomination of John Cooke as Solicitor-General, to prepare the case for presentation by his leader, the more experienced criminal trial counsel, William Steele. The instructions in the brief comprised the Act to establish the High Court (transcribed on vellum) and a note that his first task would be to advise a small committee of commissioners, chaired by Nicholas Love, on ‘How to Carry on and Manage the King’s Trial’. Plainly, much trust was reposed in the Solicitor-General to make ‘the great business’ actually work – but would he accept these instructions, delivered that shivery evening to his chambers at Gray’s Inn by Parliament’s messenger?
John Cooke did not hesitate: this brief was his destiny. ‘I readily harkened to their call to this service, as if it had been immediately from heaven.’ In humility, he was struck with the discouraging thought that
my reason is far less than others of my profession; yet considering that there are but two things desirable to make a dumb man eloquent, namely a good cause and good judges . . . and thinking that happily God might make use of one mean man at the Bar, amongst other learned counsel, that more of his mind might appear in it (for many times the less there is of man, the more God’s glory does appear) I went as cheerfully about it as to a wedding.15
Much more cheerfully, it may be said, than his fellow barrister Steele, who went about it as if to a funeral, namely his own. The Attorney-General took to his bed where he was found a few days later and certified ‘very sick’. Doubly sick, so he claimed, at his inability to lead the prosecution, which ‘if it should please God to restore him’ he would most assiduously do. It did not please God to restore him until the trial was over: on Cooke’s humble but willing shoulders fell the task of devising some lawful, fair and presentable way to prosecute Charles I.
Once Bradshawe was in place and Cooke was in action, the court proceedings began to proceed. The prosecution was given power to requisition relevant documentary evidence – original papers and letters, such as those which had been intercepted from the King or found in his cabinet at Naseby – and to summon and depose witnesses. Cooke began to make urgent enquiries among prisoners and soldiers who had previously served the royalist cause for evidence that could implicate the King in war crimes. The court had one important request to make of Cooke and Dorislaus at the first meeting they attended, on Friday 12 January: it wanted them to draft the charge against the King and it wanted that charge ready by Monday morning.
This was a tall order, since not even God’s work could be performed on the Sabbath, but the lawyers completed their draft by 2 p.m. on Monday. Cooke read the charge aloud and at length: inevitably, legal drafting under pressure of time is prolix a
nd some of the soldier MPs on the committee wanted the King’s crimes writ large. Thomas Harrison, for example, urged that the charge include his responsibility for the loss of La Rochelle and even an allegation that he had been complicit in his father’s death: ‘Let us blacken him what we can.’ John Rushworth, a legally trained House of Commons clerk present at the court’s private sitting, reports that the charge ‘was very long’ and a new committee – including Ireton and Marten – was appointed to help Cooke abbreviate it and to assist him in collecting witness statements. But they were only given two days: when Cooke returned on Wednesday afternoon, the charge was still considered too long. Oliver Cromwell, doubtless at his own suggestion, was added to the committee assisting Cooke, who later said that he resisted pressure from the MPs to include charges that could not be proved, or which were irrelevant, however prejudicial to Charles.16
Other court committees busied themselves with matters of security and choreography. Fairfax had not been able to staunch the cavalier infiltration of London and on 13 January someone remembered Guy Fawkes, so the sergeant-at-arms was sent immediately with a troop of soldiers to search the vaults below the Painted Chamber for any trace of gunpowder. Then came the question of where the trial would be held: safely, in front of a selected and screened audience in the Painted Chamber, or in the vast space of Westminster Hall which could accommodate several thousand? Cromwell wanted to play to the larger gallery, notwithstanding the danger, so that the justice of the proceedings could be more widely appreciated. This meant that all the courts which met in Westminster Hall would have to be adjourned for the duration of the King’s trial – their partitions were taken down and the scriveners and legal booksellers cleared off the precincts. The judges were to sit on an elevated platform against the south (i.e. river) side facing the King and prosecuting counsel, who would be placed in the railed-off area (the bar) in front of the audience, which would occupy the back half of the hall and some space at the sides. Several private balconies and open apartment windows overlooked the hall: guards had to be stationed to ensure that these vantage points were not used by snipers. There would be soldiers pacing the aisles of the hall to deter disturbances and to monitor the public entrance – ‘the great gate’ at the north side of the hall. The private passage which led to ‘Hell’, the cellar where the excluded MPs had been detained after Pride’s Purge, would be blocked up for the duration of the trial.
The Tyrannicide Brief Page 19
