BRADSHAWE: Sir, you must know the pleasure of the court.
KING: By your favour, Sir.
BRADSHAWE: Nay, Sir, by your favour, you must hear the court, you may not be permitted to fall into those discourses. You appear as a delinquent, you have not acknowledged the authority of the court, but the court craves it not of you – but once more they command you to give your positive answer.
For three days, Charles had taken advantage of Bradshawe’s polite reluctance to force the issue, turning every exchange into an opportunity to insult the court. The judge, looking down on the clerks’ table, gave the loud command: ‘Clerk, do your duty.’ Broughton scrambled to his feet to put the charge – but not before the King had exclaimed with heavy irony: ‘DUTY, Sir!’ Charles was remorseless and defiant: the only ‘duty’ in Westminster Hall as far as he was concerned was owed to him. Asked yet again to plead to the charge, he shook his head and smiled insolently. ‘Sir, you must excuse me.’ Bradshawe’s patience finally snapped:30
BRADSHAWE: Sir, this is the third time that you have publicly disowned this court. How far you have preserved the fundamental laws and privileges of the people, your actions speak louder than your words . . . you have written your meaning in bloody characters throughout the whole Kingdom. Clerk, record the default. And gentlemen, you that brought the prisoner, take him back again.
KING: I will only say this one word more to you . . .
BRADSHAWE: Sir, you have heard the pleasure of the court. Notwithstanding your refusal to understand it, you will now find that you are before a court of justice.
‘Well Sir, I find I am before a power’ was the King’s sarcastic rejoinder as he was led away.
Both the judges and the King recognised that the die had been cast: the last opportunity for Charles to make his defence was now irretrievable. He had given the court no way out: by law, it had now to convict him. The judges processed back to the Painted Chamber, grim-faced and angry that Charles had denied them for a third time. This afternoon, they would not disperse. They met privately and marked the seriousness of the meeting by ordering that none should depart the chamber without asking special leave. They pledged to stay together until the King’s fate could be determined.
The King himself was well aware that time had run out: as he was being escorted back to the Cotton House he swallowed a little pride – for the first time – and sent a message asking Hugh Peters to intercede with the court, as his emissary, to ask permission for him to see his chaplains. It must have caused Charles great pain to seek any sort of indulgence from the preacher he loathed, so he evidently feared that judgment was imminent. Peters burst self-importantly into the Painted Chamber to impart the request, only to be told that the King’s spiritual welfare was a matter for the Commons. The judges were furious with the King for his offensive remarks but were more concerned by the fact that – as Cooke advised them – his refusal to plead would mean that the prosecution could not call its evidence. The common law required them to have the worst of all worlds: after three sessions in which Charles had insulted the court there would now be no opportunity to unveil the evidence of his responsibility for mass-murder, treason and tyranny. So they hit upon an unusual compromise:
notwithstanding the said contumacy of the King and his refusal to plead, which in law amounts to standing mute and a tacit confession of the charge, and notwithstanding the notoriety of the facts charged, the court would nevertheless examine witnesses for the further and clearer satisfaction of their own judgement and consciences.31
This decision has often been interpreted as a device to stall for time: some historians speculate that it gave Cromwell the opportunity to persuade the commissioners to sentence the King to death, others that, on the contrary, it facilitated efforts behind the scenes to save him.32 There is no need to impute a hidden agenda. Cooke, a stickler for due process, would have advised the judges that they could not hear his prosecution evidence as part of the trial, since the prisoner had been deemed to have confessed his guilt. There was, however, nothing to stop its being heard as part of a sentencing procedure – at a private session to satisfy their consciences that application of this pro confesso rule occasioned no injustice. It was unprecedented, but it did allow Cooke to take sworn statements from witnesses and present them to the judges. He recognised that it was an unsatisfactory expedient: it meant that the prosecution evidence against the King was not heard openly and did not become part of the public record. It would also mean, inevitably, that he could not make a closing speech.
Evidentiary Sessions: 24 and 25 January
The court convened in private on Wednesday morning in the Painted Chamber to elect a committee before whom the witness statements would be taken. It was a long day: Cooke summoned no fewer than thirty-three witnesses to prove that the King had been a commander who had breached the laws of war.33 The prosecutor was particularly conscientious: the House of Lords was required to hand over documents for him to inspect and the army was ordered to produce from custody a royalist officer named Holder whom Cooke had heard could give evidence of the King’s incitement of war-crimes. When asked about his conversations with the King, Holder begged the court’s protection from being forced to incriminate himself. Ironically the right to silence, established by Bradshawe and Cooke in Lilburne’s case, came to his rescue: Bradshawe ruled that Cooke’s questions would force Holder to ‘self-accuse’ and therefore excused him from testifying.34
Many of Cooke’s witnesses were royalist soldiers whose identification of the King leading his troops at various battles could not be disputed. Charles had been a highly visible presence, fully armed and with his sword drawn, urging his men on with stirring speeches (‘Stand to me this day for my crown lies upon the point of the sword. If I lose this day I lose my honour and my crown for ever.’35) Witnesses depicted him in full command at Naseby and Copredy Bridge, at Edge Hill and Kenton and Newbury – all places referred to in the indictment. They usually added a description of the field after the battle, strewn with dead bodies. Cooke was able to prove that the King’s preparations for war had begun as early as July 1642, and that his war crimes began soon afterwards. One eye-witness described the first act of plunder (the ransacking of civilian homes) committed on the King’s orders at Hull Bridge and Beverley and produced a royal command that stopped the food supply to Hull, a town that on the King’s orders was starved unlawfully into surrender.36 Cooke called a number of witnesses from Nottingham who described the setting up of the King’s standard and how his soldiers had extracted large sums of money from the inhabitants by threatening to plunder and fire the town.37
Much more serious were allegations that Charles had stood by and approved the beating and torturing of prisoners of war. Two witnesses claimed to have seen the King at Fowey in Cornwall, watching from his horse while his men stripped and stole from their prisoners, contrary to the surrender agreement and to the customary laws of warfare. One witness from Newark Fort, near Leicester, which had surrendered to the King and his forces in June 1645 on terms that no violence should befall its defenders, testified that ‘the King’s soldiers, contrary to the [surrender] articles, fell upon the [surrendered] soldiers – stripped, cut and wounded many of them’. They were rebuked by a royalist officer but the King ‘on horseback in bright armour’ ordered the brutality to continue with the words, ‘I do not care if they cut them three times more for they are mine enemies.’ This was testimony that directly implicated Charles in ordering the torture of prisoners of war.38
What Cooke was presenting to the court over these two days was evidence that Charles was guilty of waging war against Parliament, personally and enthusiastically, that he bore command responsibility for the war crimes of his soldiers and that he was responsible as an individual for ordering and approving the torture of prisoners and plunder of towns. Even more damaging were his secret letters, full of double dealings and attempts to procure military assistance from Catholic powers and from Ireland and from Scotland:
this correspondence under his own hand would have been devastating if used to question him at Westminster Hall. There was damaging evidence from a Parliament agent, who had trapped Charles into making admissions about the support he had requested from the Irish.39 The most damning testimony came from a barrister, Henry Gooch of Gray’s Inn, who told of approaching the King during the Newport negotiations under the pretence of being a supporter. The King arranged for the Prince of Wales to commission Gooch in the royalist army in exile, and expressed his ‘joy and affection’ that so many of his subjects were prepared to fight a third civil war to restore him to power.40
The evidence, taken by Cooke in private before the committee on Wednesday, was read back in public in the Painted Chamber on Thursday when each witness attended to swear to the truth of his statement. The forty-six judges who sat through it to ‘satisfy their consciences’ had so little doubt after reading the captured correspondence that they closed the doors and resolved to proceed to discuss the sentence.41 They provisionally decided – their resolutions were to be subject to confirmation by a full complement of commissioners the next day – that
This court will proceed to sentence of condemnation against Charles Stuart, King of England.
That the condemnation of the King shall be for a tyrant, traitor and murderer, likewise for being a public enemy to the Commonwealth of England.
This condemnation shall extend to death.
They proceeded to discuss the question of deposing the King – and indeed the Stuart line – but deferred this for discussion in the Commons. The sentence of death was to be drafted by a small committee – the lawyers Lisle, Say and Love, together with Ireton, Scot, Harrison and Marten, but the draft would ‘leave a blank for the manner of his death’. Some thought that Charles should be deprived of his title of King once he had been convicted and before sentence, in which case he would face the commoner’s death for treason, namely hanging, drawing and quartering. If he died as a king, he would be entitled to a relatively painless surgical exit from the world by beheading. It was a very important distinction: the difference between death with dignity and death by butchery.
Thursday had been another long day: the commissioners and their counsel deliberated well into the evening. The case was proven and the sentence agreed: the awesome consequence, namely the end of monarchical government in England, had for the first time to be squarely faced. Gooch’s evidence had identified Charles the Prince of Wales as the alter-ego of Charles the King. There would be no point in executing Charles I if Charles II remained in command of his father’s army and allegiances. The only long-term solution, which became obvious to Cooke by the end of this dramatic week, was that England should never again be burdened by a king. The form of government he had always promoted in his writings – constitutional monarchy – he could no longer support. He went back to Gray’s Inn late that night, about 11 p.m., where he was recognised by a former pupil named Starkey who plucked at his sleeve. ‘Mr Cooke, I hear you are up to your ears in this business?’ ‘No,’ replied the barrister, ‘I am serving the people.’ ‘I hear you charge the King for levying war against the Parliament – how can you rationally do this, when you have pulled out the Parliament to make way for this trial?’ Cooke’s reply was ‘You will see strange things and you must wait upon God.’ According to Starkey, he asked whether the King must suffer, to which the Solicitor-General replied, ‘The King must die and monarchy must die with him.’42
11
Farewell Sovereignty
THE TRIAL HAD cast a spell over London: the sense of awe observed in the audience at Westminster Hall was evident throughout the city. There had been no protests by the strong Presbyterian factions; no rescue attempts by cavaliers; no demonstrations in Westminster Hall. The commanding presence of the army cannot explain the numbing of the King’s supporters, as if mesmerised by the sight of justice being done. It was not as if public allegiances had suddenly swung to the Independents, although some who had fled with uneasy consciences at Christmas were by now confident enough to return to Parliamentary duties. That astute lawyer Bulstrode Whitelocke was seen again in Westminster: as Lord Chancellor, he had the task of persuading the judges to issue the new style of writ, which omitted any reference to the King. ‘In which matter the judges seemed not to be very forward to join with us’1 he grumbled, after meeting them at Sergeant’s Inn on 24 January. They were uncomfortable with the trial and were available to entertain a habeas corpus motion on behalf of the King, had his lawyers been instructed to make it.
In the city, there was a general sense of ‘waiting upon God’ and an expectation in many quarters that His verdict would be delivered through the court. The commissioners were not, however, finding God very easy to read. Forty-six had heard the evidence on Thursday and were sufficiently persuaded to resolve provisionally upon conviction and a sentence that ‘shall extend to death’ – a phraseology betraying their hope that the King might, even now, recognise the court. In that case, a sentence that ‘extended to death’ might not reach to its full extent. None the less, Ireton drafted a death sentence overnight for discussion on Friday, when sixty-two commissioners attended. It was confirmed, after what Phelps with infuriating brevity describes as ‘several readings, debates and amendments’. They also agreed to have him brought again to Westminster Hall to receive the sentence, which meant – as they all recognised – that he would have one last chance to change his mind and save his life.
The court convened at 10 a.m. on Saturday in the Painted Chamber, to decide its tactics for the big day.2 The sentence of conviction and death was again read and agreed. There was no dissent. It was the logical, legal and inevitable consequence of the King’s refusal to plead to the charge. That it was not the desired consequence, at least by the majority of commissioners, is clear from their next two resolutions:
That in case the King shall submit to the jurisdiction of the court, and pray a copy of the charge, that then the court do withdraw and advise.
That in case the King shall move anything else worth the court’s consideration, that the Lord President, upon the advice of his assistants, give orders for the court withdrawing to advise.
These resolutions give no hint of what the court’s ‘advice’ would be in the event of a volte-face by Charles, but the first was specific and binding on Bradshawe, indicating that the judges would be prepared to hear his defence if the King was prepared to offer it – otherwise there would be no point in withdrawing. The second resolution required Bradshawe to consult with Lisle and Say, his lawyer MP assistants who were more politically savvy, to decide whether any new proposal made by the King was ‘worth the court’s consideration’ – a reference to rumours that the King might come to court with some offer to relinquish the throne. The resolution assumed, wrongly as it turned out, that he would tell the court what proposal he had in mind. The commissioners were genuinely anxious to give Charles one last chance. If he remained truculent, however, the normal criminal court procedures would apply: upon conviction the presiding judge would deliver a homily, and the defendant would not be allowed a last word before sentence was passed. Bradshawe was asked to make remarks ‘seasonal and suitable to the occasion’. One novel touch, appropriate given the number of judges, was that all should stand to their feet to signify their assent to the sentence.
The commissioners processed into Westminster Hall, Bradshawe having donned a scarlet robe to emphasise the seriousness of this session. Its purpose was anticipated by some members of the audience, who cried out ‘Justice!’ as the prisoner entered. This was recognised to be unseemly: after the formal cries for silence, Bradshawe ordered Axtell, the Captain of the Guard, to arrest anyone who created any further disturbance. The presiding judge stood and addressed the commissioners: ‘Gentlemen, it is well known . . .’ when at this point Charles interrupted. He had one last card to play, and was suddenly afraid that the game might be over.3
KING: I shall desire a word to be heard a little, and I hope I
shall give no occasion for interruption.
THE PRESIDENT: Sir, you shall be heard in due time, but you are to hear the court first.
KING: Sir, I desire, it will be in order to what I believe the court will say, and therefore, Sir – a hasty judgment is not so soon recalled.
THE PRESIDENT: Sir, you shall be heard before the judgment be given and in the meantime you must forebear.
Charles was plainly nervous. Bradshawe had been instructed to hear him, but not before explaining to everyone that this would be an indulgence. ‘Gentlemen, it is well known that the prisoner at the Bar has been several times brought before this court to make answer to a charge of treason and other high crimes, exhibited against him in the name of the people of England . . .’
At this point a masked lady in one of the galleries cried, ‘It is a lie – not half the people.’ Axtell muttered to his men ‘What whore is that who disturbs the court?’ and called out to her to hold her tongue, threatening to shoot if there were any further disturbance. The gallery – understandably – fell quiet and it was some minutes before Sergeant Dendy could reach the upper section by which time the masked woman – whether or not the same person who had interrupted the first session – had again disappeared.4 Bradshawe was unruffled by the intervention, if indeed he was even aware of it: he went on to remind the court once again that the King was guilty of contempt for refusing to plead. The judges
have considered of the charge, they have considered of the contumacy, and of that confession which in law does arise upon that contumacy: . . . they are resolved and are agreed upon a sentence to be pronounced against this prisoner. But in respect he does desire to be heard, before the sentence be read and pronounced, the court has resolved that they will hear him.
The only condition was that the King must not use the occasion to make a speech attacking, yet again, the lawfulness of the court. ‘But Sir, if you have anything to say in defence of yourself concerning the matter charged, the court has commanded me to let you know they will hear you.’
The Tyrannicide Brief Page 23
