This was John Cooke’s cue. He stood, unscrolling the parchment upon which the charge had been written – the charge that he had signed as Solicitor-General for the commonwealth. ‘My Lord President . . .’ he began. This is the point at which he felt the sharp tap on his shoulder from the King’s cane. ‘Hold!’ Charles commanded, poking Cooke again. The lawyer ignored him, and addressed Bradshawe: ‘My Lord President, according to an order of this High Court to me directed for that purpose . . .’ Now Cooke suffered a third blow from the cane, hard enough to dislodge its silver tip. The King motioned for him to pick it up, but the lawyer refused. Instead, he took a deep breath, looked the King squarely in the eye and threw down the legal gage that commenced the trial:
I do, in the name and on the behalf of the people of England, exhibit and bring into this court a charge of high treason and other high crimes whereof I do accuse Charles Stuart, King of England, here present.5
Under the astonished gaze of several thousand of his hushed subjects, the King bent to pick the silver tip from the floor at Cooke’s feet. ‘He stooping for it, put it presently into his pocket. This is conceived will be very ominous’, reported the main news-book.6 It was the moment for which Cooke could never be forgiven – the moment when the King was forced to bend, almost prostrate at his prosecutor’s feet, while the law, which he was no longer above, took its course.
The Lord President motioned for the clerk to read out the charge. Charles tried to stop him, with an order: ‘By your favour, hold!’ The clerk stopped, automatically, but Bradshawe countermanded the King: ‘The court commands the charge shall be read: if you have anything to say, after, the court will hear you.’
Charles had been put in his place and that place was the dock. It was a bad start – he was being treated, and beginning to look, like any other prisoner. Now he had to listen to Cooke’s charge – even in its slimmed-down form, it would have taken a good ten minutes for the clerk, Andrew Broughton, to read. There is a limit to body language for indifference but Charles did his best – rolling his eyes at the gallery, outstaring the judges, getting up to look behind him at the guards and the spectators. At the description ‘tyrant, traitor, murderer . . .’ he laughed loudly, as if trying to laugh the charge out of court.7 It was not a predictable response and it seemed to rattle Bradshawe: Charles had the better of their next exchanges.8 The judge began ponderously:
Sir, you have now heard your charge read . . . the court expects your answer.
Charles savoured the moment, delayed, then spoke, without his usual stammering, a carefully crafted, but none the less memorable, opening phrase:
I would know by what power I am called hither.
He might have sat down and awaited the answer, but he spoilt the effect by rattling on:
I was not long ago in the Isle of Wight, how I came there is a longer story than I think is fit at this time for me to speak of; but there I entered into a treaty with both Houses of Parliament, with as much public faith as it is possible to be had of any people in the world . . .
He had done no such thing, and everyone knew it. But suddenly he recovered, and returned to his memorable, if poorly memorised, script:
Now I would know by what authority, I mean lawful; there are many unlawful authorities in the world, thieves and robbers by the highways; but I would know by what authority I was brought from thence, and carried from place to place, and I know not what: and when I know by what lawful authority, I shall answer . . .
These words threw back the gage, and the judges must inwardly have cringed. But Charles again spoiled the effect by not awaiting a reply. Instead, he puffed himself up and began to lecture:
Remember I am your King, your lawful King, and what sins you bring upon your heads, and the judgement of God upon this land; think well upon it, I say, think well upon it, before you go further from one sin to a greater . . . In the meantime, I shall not betray my trust; I have a trust committed to me by God, by old and lawful descent. I will not betray it, to answer to a new unlawful authority: therefore resolve me that, and you shall hear more of me.
The accusation of sinfulness could not be taken seriously by men who believed they were doing God’s work. But the pointed refrain – show me your authority – unnerved Bradshawe and the King’s reference to his hereditary descent provoked the judge:9
BRADSHAWE: If you had been pleased to have observed what was hinted to you by the court, at your first coming hither, you would have known by what Authority: which Authority requires you, in the name of the people of England, of which you are elected King, to answer.
KING: England was never an elective Kingdom, but an hereditary Kingdom for near these thousand years; therefore let me know by what Authority I am called hither: I do stand more for the liberty of my people than any here that come to be my pretended judges; and therefore let me know by what lawful Authority I am seated here, and I will answer it. Otherwise I will not answer it.
Bradshawe’s use of ‘elected’ sounds nonsensical to modern ears, but he meant that kings had to be approved by Parliament – a statement with some historical support: James I, after all, had been invited to rule in preference to other candidates. The lesson for Bradshawe (and for any judge) is: do not debate with defendants. This lesson did not sink in:
BRADSHAWE: Sir, how really you have managed your trust, is known: your way of answering is to interrogate the court, which beseems you not in this condition. You have been given your answer twice or thrice.
KING: I do not come here as submitting to the court: I will stand as much for the privilege for the House of Commons, rightly understood, as any man here whatsoever. I see no House of Lords here, that may constitute a Parliament. And the King too should have been. Is this the bringing back of your King to his Parliament? Is this your bringing an end to the treaty done with all the public faith of the world? Let me see a legal authority warranted by the word of God, the scriptures or warranted by the Constitution of the Kingdom, and I will answer.
Charles was on dangerous ground with claim to stand for the privileges of the Commons ‘rightly understood’ (rightly understood, in the King’s view, they barely existed) but again he managed one telling statement – ‘I see no House of Lords here, that may constitute a Parliament’. He might have added that he saw no Presbyterian MPs either, which might fully constitute a House of Commons. But this was a special court, not a Parliament, Bradshawe was quick to insist:10 ‘Seeing you will not answer, the court will consider how to proceed,’ he announced. ‘In the meantime, those that brought you hither, are to take you back again.’ But nothing happened – the Lord President had forgotten to issue the command to the guards to take away the prisoner. But then, he asked, as an afterthought: ‘The court desires to know, whether this be all the answer you will give, or no.’ Charles took his indecision as a cue to admonish the court:
KING: Sir, I desire that you would give me, and all the world, satisfaction in this: let me tell you, it is not a slight thing you are about therefore you shall do well to satisfy first God, and then the country, by what Authority you do it: if you do it by usurped Authority, it will not last long and there is a God in heaven that will call you and all who gave you power to account. Satisfy me in that and I will answer; otherwise I betray my trust and the liberties of the people: and therefore think of that and then I shall be willing . . . satisfy God and me and all the world in that, and you shall receive my answer. I am not afraid of this business.
His demand, made with dignity and force at the outset, now had the irritation of a groove-stuck record. His best point was lost by repeating it, and he did so thirteen times in the course of exchanges with Bradshawe that could have lasted no more than ten minutes. By the end, Charles was much less impressive, whilst Bradshawe had collected himself and now asserted, against the querulous defendant, some vintage judicial authority:
BRADSHAWE: The court expects you should give them a final answer. Their purpose is to adjourn to Monday next. If you then persist in
the same temper you are in now, this is as much as if you had said nothing to us. We are upon God’s and the Kingdom’s errand, and that peace we stand for will be better kept by the doing of justice – that’s our present work.
KING: For answer, let me tell you, you have shown no lawful authority to satisfy any reasonable man.
BRADSHAWE: That is in your apprehension – we think it reasonable, and we are your judges.
This time, Bradshawe remembered the magic words which for centuries in English courts have made the defendant disappear: ‘Take down the prisoner,’ he commanded the guards. ‘The King, you mean,’ corrected Charles, offended by the word ‘prisoner’. The guards advanced to escort him to the staircase leading down to the Cotton gardens. ‘Well Sir!’ the King harrumphed, as he rose from his seat. As he was led away he pointed with his untipped cane to the parchment containing Cooke’s Bill of Indictment, which was lying on the clerk’s desk alongside the sword and the mace. ‘I do not fear that Bill,’ he said loudly, to no one in particular.11 There were voices in the Hall which now cried out as he left it ‘God save the King!’, counter-pointed with others which cried ‘Justice!’ The shouting was stilled by the usher:
Oyez! Oyez! Oyez! All manner of persons that have anything more to do with this court, you are to depart at this time. And this court doth adjourn itself until Monday morning next, at 9 of the clock in the forenoon, to meet in the Painted Chamber, and from thence hither again.
The judges stood up and filed out as they had come in, a solemn procession behind the bearers of the sword of the state and the mace of the Commons. The hearing could not have taken more than an hour: it had started and ended well, and Cromwell and Ireton must have breathed sighs of relief as they compared notes back in the Exchequer Chamber. Although the King’s objections read trenchantly on the transcript, his best points had been overwhelmed by the grandeur of the occasion: the impact on the audience, most of whom could not hear a word, was of the majesty of the law rather than the majesty of the King. Bradshawe had carried off the chairmanship with a degree of authority; the fall of the silver tip of the cane was an ominous portent for a defendant who appeared from a distance to be denying the offer of a fair trial. The City that night was quiet, the public engaged – with curiosity, rather than anger or protest. The six licensed newspapers printed more copies, and three new papers had to be licensed to cater for the public appetite to read about the trial. The royalist news-sheets failed to appear, as if cowered by the enormity of the event. This success was more than Cromwell could have hoped, but probably what he expected from providence – although providence had nothing to do with it. Justice always has its own momentum and one thing that was clear from the proceedings of 20 January was that this trial was a deadly serious exercise: now that it had started, it would go on and on – to an end that no one could confidently predict.
In any court, once the prisoners and the judges depart, there is a hubbub as members of the audience, now free to talk, excitedly compare impressions, whilst the barristers gather up their papers and hand them to clerks to carry back to their chambers. The ubiquitous Hugh Peters was first to rush up to Cooke and congratulate him on his performance – especially his coolness when provoked by the King. Holding up his hands as if in thanksgiving, Peters exclaimed, ‘This is a most glorious beginning of the work.’12 These kind words from Peters, now the most influential of the Puritan preachers, must have gladdened the prosecuter’s heart. The two friends leant against the bar railing, proud of their part in ending the impunity of sovereigns. The tribunal, they agreed, had resembled that tribunal of the saints promised in the Bible for the day of judgment.
Peters was a populist; Cooke the legalist knew that Bradshawe had yet to provide the answer to the King’s challenge to produce lawful authority for the trial. The Solicitor-General would have to find a convincing answer in his final speech – that is, if he was to have a final speech at all. If the King continued in his refusal to plead to the charge he would, by the rules, be taken to have confessed it. That would mean his automatic conviction: the evidence which Cooke had frantically collected over the last ten days would not be heard, and there would be no closing speech, either for the prosecution or the defence. Cooke wanted to play this case, of all cases, by the book (in fact, by two books – the Bible and the Institutes of Edward Coke). Peters on the other hand wanted a show trial, in the sense of a trial which would show the world that kings are not above the law.
That Saturday afternoon they went their separate ways: Cooke to begin preparing his opening speech, and Peters his sermon for the morrow. Charles had work to do as well: he refused to spend the night in the Cotton House and was permitted to return to St James’s (again by barge and closed sedan chair) to consult his advisers. What had most unnerved him, he confessed to Dr Juxon (the Bishop of London) was the ominous incident with Cooke and the cane. ‘It made a great impression – I just don’t know how it could have happened, unless Hugh Peters tampered with the tip.’13 Juxon told him to forget it and concentrate on the next hearing. Charles reproached himself for the day’s missed opportunities: he could have told the judges in no uncertain terms why they had no legal authority. So a speech was prepared that evening to this effect, for him to deliver when the court reconvened on the Monday.
As for Judge Bradshawe, he abjured his family home behind Gray’s Inn gate, and made use instead of the fine lodging appointed for him in New Palace Yard, safely under the guard of army officers. It was just as well: a cavalier named Burghill, armed with sword and pistol, waited for him all night behind the gate.14 He would have had better luck in assassinating John Cooke, who went back to Gray’s Inn with no thought to his own safety. That evening, Cooke was visited by friends who urged him to take care for his own life and indeed to try to save the King. ‘They do not intend to take away the King’s life, but only bring him to submit to the Parliament,’ Cooke reassured them.15 It was probably an accurate statement of the intention of most members of the court at the outset of the trial.
Sunday was a day of rest for all parties. The judges decided to stay together in Whitehall for fasting and prayer. They commissioned three sermons – the first from Fairfax’s chaplain Joshua Sprigge, who preached on the text that had motivated the army: ‘Whoso sheddeth man’s blood, by man shall his blood be shed.’ Then another army preacher took them to task with humiliating thoughts on the subject ‘Judge not, that ye be not judged’. These were rather grim and exceedingly long lectures and there was relief when Hugh Peters climbed to the makeshift pulpit to topicalise the text that it was God’s purpose ‘to bind their kings with chains’. This psalm – 149 – was a favourite since it spoke of the congregation of the saints, amongst which every Puritan hoped to number himself. They intoned:
Let the high praises of God be in their mouth, and a two-edged sword in their hand;
To execute vengeance upon the heathen, and punishments upon the people;
To bind their kings with chains, and their nobles with fetters of iron;
To execute upon them the judgment written: this honour have all his saints. Praise ye the Lord.
In the mouth of Peters, a skilled and crowd-pleasing evangelist, this psalm had a topical resonance to the judgment on the King. Charles had refused Peters’s earnest invitation that he should preach that day to him at St James’s, and this gave Cromwell’s chaplain – who seems to have had a real talent for stand-up pulpit comedy – a good opening line from Amos, the prophet who insisted on preaching against all the odds: ‘The poor wretch would not hear me, but yet I will preach.’ Cromwell was observed to laugh at his next joke: the one about the Major, the Bishop and the Bishop’s drunken servant. The Major imprisoned the servant, whereupon the Bishop asked by what authority he did so and the Major replied, ‘By act of Parliament and neither the bishop nor his man are excepted out of it.’ Peters gave the story a topical twist:
Here is a great discourse and talk in the world: ‘What, will you cut off the King’s head, th
e head of a Protestant prince?’ But turn to your bibles: whosoever sheds man’s blood, by man shall his blood be shed. So I will answer them as the Major answered the Bishop, ‘By an Act of God – whosoever sheds man’s blood, by man shall his blood be shed – and I see neither King Charles, nor Prince Charles, nor Prince Rupert, nor Prince Maurice, nor any of that rabble excepted out of it.’16
The Second Session: Monday 22 January
Many of the judges were MPs, and their attendance was required in the Commons when the court was not in session. They began their public duties there on Monday, listening to conflicting messages. The Scottish Parliament had sent a delegation to plead with the House to abandon the trial, but the Commons had little time for their recent enemies: the Scots petition was referred to a committee. More pleasing was a petition from officers on active service in the north, pledging support for the trial and for the ‘seclusion’ (so Pride’s purge was euphemistically described) of corrupt Presbyterian MPs: the present proceedings were ‘the work of God alone’. When the business of the House was concluded, those MPs who were also judges joined their colleagues in the Painted Chamber for a post-mortem on the events of Saturday.
This meeting survives only in the short minutes of the clerk, Phelps, but reading between his laconic lines it is evident that the commissioners were troubled by the King’s tactics and by Bradshawe’s failure to curb them. They realised the long game that the King was playing by denying their jurisdiction – it was to deny the authority of the House of Commons, whether purged or not, to establish a court or to do anything other than to meet at his command, very occasionally, to vote him taxes. Their immediate problem was whether to give the King the opportunity to challenge their jurisdiction, call on Cooke to answer and then deliver a judgment which would establish their legitimacy, or whether they should decline to hear the argument on the basis that a defendant had no right to make it: the court had been established by Act of Parliament, and that was that. Phelps noted that they took ‘advice with their counsel learned in both laws’, i.e. English common law (Cooke) and continental civil law (Dorislaus). The common law did not, at this stage of its development, permit challenges to jurisdiction: Acts of Parliament, however questionable, could not be questioned in the court that was bound by them because judges were not entitled to investigate the political sources of their own power. The civil law has always been more flexible, and it is likely that Dorislaus favoured what is now the position in international criminal courts, namely that defendants may challenge the lawfulness of the process by which the court was established. Cooke’s common law position prevailed, and the court formally resolved that the prisoner should not be suffered to dispute the Act’s validity.
The Tyrannicide Brief Page 21
