These were elementary precautions which could not have protected either the judges or their counsel from a determined royalist assault or a suicide-assassin. The risk inherent in such a public event, at a time when the second civil war had scarcely ended and the third was almost underway, would have persuaded any prudent administrator to remove the trial to the safety of the Painted Chamber. But for these men, a public spectacle was a form of witness before God of the righteousness of their cause and course. Other than by making special security arrangements to pacify Bradshawe, they took little care for their own safety – Cooke positively disdained protection, notwithstanding death threats. They took more care for the King – also a possible target – and assigned no fewer than 200 foot soldiers to patrol the grounds of the Cotton House, to guard Charles against both rescuers and assassins. He would be allowed to live in some luxury, but privacy was out of the question: thirty officers would be stationed in the house, two of them permanently ensconced in his bedroom. Three servants were permitted to accompany him to the court, surrounded by his special guard: they would enter through the garden and wend their way, through back passages lined with soldiers, to enter the hall from the side closest to the bar, which faced the judges. There the King would sit, on a velvet cushion (a civility insisted upon by Bradshawe), only a few feet from the Solicitor-General.
One thing must have been clear to the organisers, as it is to all who attend events in Westminster Hall today. The acoustics are appalling: a speech from the south end where the Lord President was positioned would scarcely carry past the bar, and the voices of the King and John Cooke, with their back to the bulk of the audience, would not be heard by many behind them. So the judges were particularly concerned that justice must be seen to be done, because it would not be heard to be done. It would be read, at least: twelve short-hand reporters were permitted to form the first press gallery. In order that ‘the trial may be performed in a solemn manner’ it was decided that only the court’s president and counsel should speak during the open court proceedings. The other judges should direct their questions to witnesses through the president and ask him to adjourn if they wished to object to any aspect of the proceeding. They opted for solemn ceremony: they would process in from the Exchequer Chamber, led by the Lord President with the sword of state and Parliament’s mace carried before him. The clerk and the ushers should wear gowns, and the court messengers were provided with special cloaks. To add a dash of terror, the court sent to the Tower of London for two hundred halberds, or ‘partizans’ – long pikes with axe-like blades which soldiers could flourish in the Hall. It must have been hard for men who had risked their lives to worship as they wished in utter austerity, without so much as a tint of stained glass, to recognise that court choreography requires a touch of plush. None the less, they approved a chair of crimson velvet for the president, and a desk with a crimson velvet cushion: the judges’ benches too were hung with crimson, setting off their black or ‘sad’-coloured suits and broad-brimmed black hats that were in Puritan fashion. In front of the president was a long table covered with Turkish carpet. Here the clerks, Phelps and Broughton, would sit either side of the sword and mace which would lie there, alongside Cooke’s charge, while the court was sitting.
On Friday 19 January the commissioners were told that the charge had been ‘perfected’ and that the Solicitor-General was now ready to present it. Cooke read it to the commissioners three times before they asked him to have it engrossed on parchment and signed: when the trial opened, he should present it ‘in the name and on the behalf of the people of England’. The charge (now called an indictment) was a statement of the crime and a description of its ‘particulars’, that is, of the facts alleged to amount to the offence which the prosecution undertakes to prove by evidence. This indictment was headed ‘A Charge of High Treason, and Other High Crimes’.17 Cooke spelled out its juristic basis at the beginning, by alleging that Charles Stuart had been
Trusted with a limited power to govern by and according to the laws of the land and not otherwise; and by his trust, oath and office being obliged to use the power committed to him for the good and benefit of the people, and for the preservation of their rights and liberties.
This embodied the constitutional position Coke had postulated to James I: the sovereign’s power was limited, in that he could not encroach upon traditional liberties or breach the common law. The notion that the monarch’s power was held in a trust and could only be exercised for the benefit of the people’s liberty was new: monarchs had used their powers throughout history to benefit themselves and their favourites. Whether a policy was for the people’s benefit was generally a subjective question – but, as this charge went on to explain, a policy of war that resulted in the deaths of tens of thousands of Englishmen could never qualify. On the charge of tyranny, the King’s guilty mind (mens rea as lawyers call it) consisted in waging aggressive war against his own people for his personal advancement rather than the public interest, in seizing unlimited power to rule according to his royal will rather than law and in particular in abolishing the most precious of the people’s fundamental rights, namely access to frequent Parliaments to remedy grievances. With this wicked intent the defendant had ‘traitorously and maliciously levied war against the present Parliament and the people therein represented [the main battles of the first civil war were then mentioned, from 1642 to 1646] whereby the said Charles Stuart has caused and procured many thousands of the free people of this nation to be slain’.
There followed an accusation of his command responsibility for the second civil war in various counties in 1648 ‘by divisions, parties and insurrections within this land, by invasions from foreign parts endeavored and procured by him, and by many other evil ways and means . . . [Charles Stuart] has renewed or caused to be renewed the said war against the Parliament and the good people of this nation’. His brewing of a third civil war was added to the charge: ‘for further prosecution of his said evil designs he does still continue his missions to [Charles, Prince of Wales] and other rebels and revolters both English and foreigners and to the Earl of Ormonde and to the Irish rebels and revolters associated with him, and from whom further invasions upon the land are threatened’.
These allegations were capable of proof, in the sense that Charles had commanded in battle, encouraged the renewed fighting in 1648, and had incited Ormonde while he was pretending to parley peace at Newport. The King’s determination to fight Parliament rather than to concede its demands or subsequently the demands of its army, had the consequence, as the charge went on truthfully and movingly to relate, that
Much innocent blood of the free people of this nation has been spilt, many families have been undone, the public treasury wasted and exhausted, trade obstructed and miserably decayed, vast expense and damage to the nation incurred, and many parts of this land spoiled, some of them even to desolation.
Stubborn, arrogant and selfish Charles I had been, but could Cooke prove that this conduct was criminal? What statute or common law prohibition had he breached? Cooke’s conclusion was that the defendant was guilty as ‘tyrant, traitor, murderer and a public and implacable enemy to the Commonwealth of England’ by virtue of his command responsibility:
Charles Stuart has been and is the occasioner, author, and continuer of the said unnatural, cruel and bloody wars, and therein guilty of all the treasons, murders, rapines, burnings, spoils, desolations, damages and mischiefs to this nation, acted and committed in the said wars or occasioned thereby.
In the final, formal paragraph of the charge, the prosecutor sealed the King’s fate, and his own:
And the said John Cooke on behalf of the people of England does for the said treasons and crimes impeach the said Charles Stuart as a tyrant, traitor, murderer and a public and implacable enemy to the Commonwealth of England and prays that the said Charles Stuart, King of England, may be put to answer all and every of the premises and that such proceedings, examinations, trials, sentences and judgem
ents may thereupon be had, as shall be agreeable to justice
Subscribed, John Cooke.
‘Tyrant, traitor, murderer . . .’? There was some doubt whether treason, notwithstanding its extended definition in Strafford’s case, could be committed by a king. Murder most certainly could, if the war had been unlawful – but there was some question, even amongst Parliamentarians, about who had really started it, back in 1642. The King had raised his standard outside Nottingham, but he had declared war on his own people in order to safeguard what he sincerely believed were his lawful prerogatives and some thought Essex had over-hastily engaged the parliamentary forces. What the Solicitor-General had hit upon, in a very short time and under intense pressure, was a crime of tyranny, capable of commission by a head of state who begins a widespread and systematic persecution of his own people with the intention of gathering all power into his own hands. On the early morning of 20 January 1649, the Solicitor-General for the Commonwealth formally began the King’s trial by signing the vellum parchment upon which his charge had been transcribed.
Cooke’s achievement – aided by Aske and Dorislaus – had been remarkable. He had only six working days to formulate the charge and collect the evidence to prove it, harried all the while by a committee which wanted a long press release rather than a technically correct indictment. His final charge was compelling: it reminded the public (and it was widely published in the following weeks) that irrespective of views as to whether the King could or should be put on trial, there was incontrovertible evidence that he bore primary responsibility for the death and desolation of two civil wars. Unlike the trumped-up cases against Strafford and Ralegh and Laud, Anne Boleyn and Mary Queen of Scots, this indictment was a true bill.
10
The King’s Trial
ON THE MORNING of Saturday 20 January, a troop of soldiers collected the King from St James’s Palace, to which he had been brought from Windsor. He was placed in a curtained sedan chair and carried incognito through St James’s Park to the nearest landing on the Thames. There, a funereal black barge awaited: he was placed inside its cabin and again his escorts drew the curtain. Shadowed by army boats crammed with musketeers, the barge crunched through the ice floes that had formed on the river overnight and moored at the steps of the Cotton House. The King’s arrival could be observed from the high windows of the Painted Chamber, where his judges were meeting to complete their preparations for the opening session. Cromwell, ‘white as the wall’, stood by the window, announcing in a state of high excitement, ‘My masters, he is come, he is come, and now we shall be doing that great work that the nation will be full of.’ He turned to Bradshawe, and asked what answer the court should give to ‘the first question he will ask us – by what authority and commission we do try him?’ Henry Marten stood up and suggested, to general approval, that the King should be told that he was being tried ‘in the name of the Commons in Parliament assembled and all the good people of England’.1
Charles I was brought to trial at a time when defendants had no rights other than to be tried quickly (cases had to conclude within the day) and were not permitted to give evidence on oath, to cross-examine witnesses or to have the assistance of counsel (other than by leave of the court, and then only to argue points of law). Those who refused to plead were either returned to prison and ‘pressed’ to do so – by heavy weights which gradually crushed them to death unless they relented – or else were told that their refusal to plead was taken as a confession of guilt. There was no disclosure of the prosecution case, no adjournments and no appeal. ‘Prisoners at the bar’ might ask the judge to put questions to prosecution witnesses: they could interject and make a final speech but that was their lot. The slightest disrespect to judges was severely punished as contempt of court. Against this background, the King’s judges were to show unprecedented consideration for the defendant.
They had good reason to believe that Charles would deny their jurisdiction to try him – this was the refrain of royalist news-sheets – and it was predictable that he would not even accord them the basic courtesy of the age, namely to doff his hat. They decided that royal rudeness should be tolerated and the prisoner generally handled with kid gloves: the court would not insist that he should remove his hat and would give him time to answer the charge if he so requested.2 The final business, before the seventy judges adjourned to the Exchequer Chamber, the ante-room for their entrance into the hall, was to hear John Cooke read his charge one last time. It had already been engrossed on parchment by a scrivener, and once the court approved it, Cooke signed. His next task was to ‘exhibit’ it, i.e. present it in open court in the presence of the defendant. This was the formal act which would commence the trial.
It opened in Westminster Hall, the centre of English justice, temporarily cleared of lesser courts and legal bookstalls to make way for this momentous showdown. The Hall was the largest public space in the realm, 300 feet long with a high beamed roof, constructed by William Rufus in 1097. It had been the venue for the trial of Strafford and of the gunpowder plotters, for Sir Thomas Moore’s last stand and for Richard II’s abdication to Bolingbroke, when the Bishop of Carlisle asked, in Shakespeare’s pointed question, ‘What subject can pass sentence on his King?’3 Seventy subjects in black robes emerged at 2pm from the Painted Chamber, to do just that.
The First Session: Saturday Afternoon, 20 January
There was no trumpeting or drumming. The court opened with a solemn procession, led by halberdiers carrying their ceremonial arms from the Tower of London, followed by bearers of the sword of state and the mace. Bradshawe, clad in a long black gown held up by a train-bearer, was accompanied by two lawyers (John Lisle and William Say) similarly robed, and they were followed by sixty-five commissioners in dark suits and high black hats. Bradshawe took his seat on crimson velvet centre stage, in front of the commissioners who sat on tiered benches hung with scarlet, beneath the south window of the hall. Then came the usher’s traditional opening proclamation:
Oyez, oyez, oyez. All manner of persons that have anything to do in this court, come near and give your attendance.
As if in response to this invitation, the great gate at the north of the hall was opened and members of the public streamed in and filled up all the places behind and beside the bar. When they were seated, silence was proclaimed and the Act of the Commons establishing the Court was read aloud and loudly by Phelps, standing in front of the Turkish-carpeted clerks’ table. Then came the roll-call: each of the judges stood in turn to answer to his name. Sixty-eight were present – given that some of the 135 original nominees had withdrawn or were with army detachments outside London, this counted as a reasonably good attendance. There was a disturbance in one of the abutting galleries when the name of General Fairfax was called: a masked woman (subsequently reported to be Lady Fairfax, the general’s wife) shouted out that the general was not present and it was wrong to name him as a judge. (Clarendon claimed she said ‘he has more wit than to be here’.) There was a short diversion in the hall and Sergeant Dendy climbed up to the box to investigate, but the lady had departed and the proceedings were not disrupted.
After the roll-call, Bradshawe gave the solemn order ‘Send for the prisoner.’ It took fifteen minutes for Colonel Tomlinson to fetch the King from the Cotton House and escort him through the maze of passages to his entry point at the side of the hall. There he was met by the sergeant-at-arms and escorted to the bar, where a chair with its velvet cushion, and writing stool with pen, ink and paper, had been placed for him. Normally, prisoners were required to stand at the bar throughout their trials, but the King was no ordinary prisoner.
It had been seven years since Charles had been seen in London, and the spectators were struck by his careworn face and the dirty brown locks which fell from under his hat, which he kept firmly on his head. He was dressed elegantly in black silk with a sky-blue sash; his only decoration the pale blue ribbon and silver medal of St George, emblem of the Order of the Garter. He leant
on his white silver-tipped cane and looked sternly at the judges before taking his seat. He rose again, curiosity getting the better of disdain, and turned to survey the audience, but made a point of avoiding the eyes of Cooke, who was sitting a few feet to his right. The sergeant-at-arms called for silence. Charles was spared the demeaning procedure that required the prisoner to hold up his hand on his name being called: instead, Bradshawe made a carefully rehearsed speech, courteously calling him the King of England but at the same time making the court’s purpose very clear.4
Charles Stuart, King of England. The Commons of England assembled in Parliament, being sensible of the evils and calamities that have been brought upon this nation and of the innocent blood that has been shed in it, which is fixed upon you as the principal author of it, have resolved to make inquisition for this blood, and according to the debt they owe to God, to justice, the Kingdom and themselves, and have resolved to bring you to trial and judgement and have therefore constituted this High Court of Justice, before which you are now brought. Where you are to hear your charge, upon which the court will proceed according to justice.
The Tyrannicide Brief Page 20
