The court, after all, had looked and acted like a court – a much fairer court, in public memory, than his own Star Chamber. There was no dispute that Parliament, the highest court, could create other courts. Charles defined ‘Parliament’ as the triumvirate of Lords, Commons and the King himself, whose consent (on this theory) would be required for his own trial. That would be an absurdity, although for any impeachment process the Lords would be needed as judges and they were nowhere to be seen at Westminster Hall. But the common law had for centuries recognised courts that had not been created by Parliament – the Star Chamber, for example, and other ‘prerogative courts’ in which the King’s ministers were the judges, as well as the Church of England’s complex system of ecclesiastical courts of quasi-criminal jurisdiction, and numerous local or customary tribunals (such as ‘pie powder courts’ attached to every market). The army had power to establish courts martial and both sides had carried on court-martialling enemies throughout the civil wars, and now the army had, in effect if not in form, relinquished that power to the House of Commons. That House, albeit truncated, was the de facto power in the land, and decided to give the King a trial rather than a summary court martial. Since the law protected men of noble birth from the verdict of a common jury, the Commons established a ‘High Court of Justice’ presided over by a judge, with a jury of the closest ‘peers’ they could find – men of influence as MPs, civil and business leaders, county officials and army officers. If treason was an offence that could, after the Strafford precedent, be committed by a king; if Charles as commander could be made responsible for war crimes committed by his troops; if the crime of ‘tyranny’ was justiciable – then a trial was in order, for which a court had to be established by the de facto authority – namely the authority that had supplanted his. The defendant, after all, was busy conspiring with Parliament’s enemies to bring on the next aggressive stage of what was really an ongoing war, a state of national emergency. The King’s trial might be unprecedented, but it was not for that reason unlawful.
This court put Charles on trial but it did not try him. That altogether more significant exercise the King prevented by refusing to plead. As far as Cooke was concerned, his reason for refusing to enter a defence was simple – he had no defence. Nor had he any mitigation, because he was entirely lacking in remorse. The King’s conscience was not troubled by any of the bloodshed of the wars, but only by his responsibility for agreeing to Strafford’s execution.20 There can be no doubt that Charles really did believe himself innocent of any responsibility for the death-toll of the wars. He took a last brief opportunity, in his speech on the scaffold, to explain:
. . . all the world knows I never did begin the war with the two Houses of Parliament . . . They began upon me . . . if anybody will look but to the dates of the commissions, their commissions and mine, and likewise to the declaration, will see clearly that they began these unhappy troubles, not I . . . I only say this, that an unjust sentence [meaning Strafford] that I suffered to take effect, is punished now by an unjust sentence upon me. So far I have said to show you that I am an innocent man.21
Cooke had called his first witness – William Cuthbert – to establish that the King was responsible for war crimes (plunder at Beverley and the starvation of Hull) as early as July 1642, before he formally declared war by setting up his standard at Nottingham. Charles claimed that Parliament levied war on him, and his standard was raised in self-defence, in putting down an unlawful rebellion. Cooke’s answer was that the King withdrew to the provinces much earlier and recruited a fighting force to attack the national militia under the Earl of Essex. Even if the King had fought the first civil war to put down an insurrection, once a prisoner of Parliament he was guilty of inciting support for the second civil war by ‘engaging’ with the Scots in 1648 and for his secret urgings of Ormonde and Rupert and the Prince of Wales to prepare a further invasion. Moreover, he remained personally liable for war crimes committed to his knowledge by forces under his command, and it was for this reason that Cooke’s evidence emphasised his responsibility for the crimes of plunder and starvation and for the torture of prisoners of war.
The weakness of the King’s case as he explained it on the scaffold demonstrates why he was tactically sensible not to make it in the courtroom. His refusal to recognise the jurisdiction of the court served as a cover, which the judges failed to blow because they did not adopt procedures which would have brought on the adversary trial they so desired. The court adjourned – and adjourned and adjourned again – in the hope that the King would come out and fight. Instead, the judges should have given him no choice but to fight, by declaring that his refusal to plead was to be taken not as a confession of guilt but as a plea of ‘not guilty’. It is anachronistic to criticise Cooke, the great legal reformer, for failing to urge this particular legal reform – it did not come about until 1827. He encouraged the judges to allow him to call his evidence in Westminster Hall, where the King could not have resisted the temptation to challenge it. It was his duty as prosecuting counsel to assist the court by explaining the forms of law it had to follow, and he also had a duty to his client, the Parliament, to present its case against the King most effectively, by urging that the charge must be taken pro confesso. As a result, there was really no ‘trial’ in any meaningful sense. All that happened was that the King objected to the court’s jurisdiction, the court rejected his argument, and it proceeded to deliver sentence when and because he refused to enter a plea.
So disappointed was John Cooke with this result that he settled down to complete the ‘speech’ for the prosecution that he had not been permitted to deliver. He would prove in print what he had been denied the opportunity to prove in court, and more. Cooke decided to persuade the public not only that Charles deserved to die but that monarchy deserved to die with him.
King Charles, His Case was published a week after the King’s execution: it contained the closing speech Cooke had intended to deliver ‘if the King had pleaded to the charge and put himself on fair trial’.22 After an opening insult (‘Charles Stuart was a king whom God gave to England in his wrath and will take away out of his love for that country’) he moved on to assert the King’s command responsibility for the deaths incurred in the war. Tens of thousands of lives had been lost by his ‘commands, commissions and procurements’ or at least by omissions for which he might be held liable, since ‘He that does not hinder the doing of evil, if it lies in his power to prevent it, is guilty of it as a commander thereof’. Charles he described as a ‘hard-hearted man’ who had confessed on 22 January that he cared only for the death of Strafford: he ‘was no more affected with a list that was brought into Oxford of five or six thousand slain at Edge Hill than to read one of Ben Jonson’s tragedies’. The real tragedy was that of Charles Stuart, a man ‘beloved at home and feared abroad’ who might have governed amicably with his Parliament, but instead was ‘so proudly wedded to his conceits as maliciously to oppose his own private opinion against public judgment and reason of state, so as to attack the Parliament in pursuance of his lust for absolute power’.
Cooke repeated that kings were trusted with a power to govern that was limited by a common law that entrenched the people’s right to a regular Parliament for the redress of their grievances. Charles’s coronation oath bound him to preserve the peace and to observe the law: it reflected the political fact that ‘all just power is now derived from and conferred by the people’ who consent and voluntarily submit to a form of government. They may consent to a king, and even to hereditary kingship, but always retain the right to withdraw that consent, even if the hereditary monarch behaves himself. At this point, Cooke becomes much more radical than Bradshawe, who would only allow deposition of a king for breaching the feudal bond and failing to protect his people. Cooke would allow the people to rid themselves of monarchical government at any time, because it is not a form of government favoured by reason, nor by God, because their very existence tends to enslave the human spirit and
create a courtier class. ‘God permits this; he approves it not.’
Having established through biblical references God’s dislike of the institution of monarchy, Cooke turns to the evidence against Charles on the count of tyranny. He instances his relentless desire for personal rule in 1628 by eliminating Parliament and cruelly imprisoning its champion Sir John Eliot and by sacking any judges whose decisions displeased him. His ‘Machiavellian policy’ was ‘Call no Parliaments to question the injustice and corruption of judges, but make your own judges, and let them declare the law’ as they did in the ship-money case, producing the perfect recipe for tyranny, namely that ‘the King may take from the people in case of necessity and himself shall be the judge of that necessity’. In fine flourish, Cooke debunked the notion that the King’s ‘evil councillors’ were to blame for his maladministration and injustice. Who elevated these evil ones to his counsel? The King, of course, who must be held accountable for the advice that he arranged for himself to be given by men like Laud and Strafford, the advocates of ‘barbarous cruelties of brandings and nose slittings imposed on the Protestant martyrs’.23 Nobody could pretend that Charles was led astray by evil counsellors if they read the letters found in his cabinet after Naseby, showing that the King was ‘principal in all transactions of the state and the wisest about him but accessories’.
Cooke made short work of the King’s defence that Parliament started the war. The King declared it by setting up his standard: he wanted an army under his absolute command, as well as the money to pay for it. He fought for the perquisites of tyranny: the power to call Parliaments when he pleased and to dissolve them when he wished, with his ‘negative voice’ to nullify anything they did, irrespective of approval from the Lords. But was this ‘tyranny’ a crime? Significantly, Cooke answers this question by invoking not only the fundamental law of England, but international law – ‘the general law of all nations’ – and natural law, ‘written in every rational man’s heart with the pen of a diamond, in capital letters and a character so legible that even he that runs may read’. The principle was simple:
When any man is entrusted with the sword for the protection and preservation of the people, if this man shall employ to their destruction that which was put into his hand for their safety, then by the law of that land he becomes an enemy to that people and deserves the most exemplary and severe punishment. This law – if the King become a tyrant he shall die for it – is the law of nature and the law of God, written in the fleshly tablets of men’s hearts.24
Cooke’s law against tyranny had a respectable pedigree in the laws of war, issued to the King’s own army when it prepared to march on Scotland in 1640, which prohibited pillage and plunder and torture of prisoners.25 The evidence implicated Charles in these atrocities. Although international lawyers had not gone so far as Cooke (and modern law) in imputing command responsibility to princes, Grotius held kings liable for wrongs they had known about and could have prevented. Erasmus had written extensively about the justification for regicide (in terms that Shakespeare applied to the accountability of kings like Richard III and Macbeth) while Gentili, the Oxford Regius professor, had pointed out that ‘unless we wish to make sovereigns exempt from the law and bound by no statutes and no precedents, there must also of necessity be someone to remind them of their duty and hold them in restraint’.26 That ‘someone’ had to be a court, comprising judges empowerered to enforce the law against the King. Not every law – Cooke conceded the inconvenience of punishing a king for a single murder27 – but for systematic breaches that resulted in the destruction of public lives and liberty. In this sense, ‘tyranny’ was a different crime to treason, which involved (if the Strafford precedent extended this far) an attack on sovereign power in the realm, and the Militia Ordinance had vested in Parliament some of the King’s sovereign power. This argument – that ‘treason’ now encompassed an attack on the state or on its settled institutions of government, which one such institution (the King) could commit by attacking another (the parliament) – sounds better in hindsight than it would if it had been challenged at the time by Matthew Hale.28 The charge of tyranny, however, might carry a consequence more momentous than treason or murder: being against the law of nations and of nature, it would justify armed resistance, even invasion – what would now be termed ‘humanitarian intervention’. As Gentili had put it: ‘Look you, if men clearly sin against the laws of nature and of mankind, I believe that anyone whatsoever may check such men by force of arms’.29
For Cooke, tyranny was a crime committed by absolute rulers who became tyrants not just by virtue of the servititude their position inculcated, but by their fixed intention to govern without Parliament or an independent judiciary or any other democratic check on their power. Kings were not invariably tyrannical: monarchical government was tolerated by God and by the law of nations, so long as the monarch did not abuse his power – by, for example (and it was the example to hand), waging war on the people in order to destroy their vested political rights to an independent judiciary and to a regular Parliament for the redress of their grievances. When the ruler’s oppression becomes systematic and widespread, the people were entitled to have him arrested and put on trial. If he could claim to have acted from incompetence or honest misjudgment as to the public good, he might be pardoned or permitted to abdicate in favour of an heir bound to observe constitutional limits. But if his misconduct had been motivated by a desire for absolute power, a just sentence would be death and disinheritance.
This was a revolutionary doctrine, far in advance of Bradshawe’s cautious reasoning. It wove the laws of nations, God and England into a case for the overthrow and punishment of tyrants, no matter where or who they were. Cooke urged the export of this revolution ‘to make him [Charles] an example to other Kingdoms for the times to come. That the kings of the earth may hear, and fear, and do no more wickedness.’ In a postscript, written shortly after the execution, Cooke put down a famous marker that would haunt Oliver Cromwell over the next decade. The King’s judges, he prophesied,
Have pronounced sentence not only against one tyrant but against tyranny itself. Therefore if any of them shall turn tyrant, or consent to set up any kind of tyranny by law, or suffer any unmerciful domineering over the consciences, persons and estates of the free people of this land, they have pronounced sentence against themselves.
The committee for executing the King found its first task was to provide him with solace: they received a message from Charles that ‘seeing they had passed a sentence of death on him, and that his time might be nigh, might he see his children and have Doctor Juxon, Bishop of London, admitted to assist his private devotions?’ The committee readily granted both requests, little realising how the children’s visit would be turned into tear-jerking propaganda, or that Juxon would act as the King’s press agent. But the commissioners were now consumed with kindness – they even allowed an emissary from the Prince of Wales – the enemy commander, exiled in The Hague – to visit. He found Charles unprepared for execution, clinging to the forlorn hope that his son would lead an invasion that might save him yet.30 King Charles had sufficient presence of mind to send Rogue, his King Charles spaniel, away to his wife (contrary to royalist myth, the dog did not trot behind its master on his walk to the gallows) and sent a ring – ‘an emerald set between two diamonds’ – to a lady living off King Street in Westminster, subsequently identified as ‘the King’s laundress’.31
Meanwhile, Cromwell was overseeing the grim modalities of the King’s execution. Charles spent Sunday with Bishop Juxon, a calming influence who helped steel him for martyrdom. The commissioners and soldiers needed steeling as well, and who better than Hugh Peters to inculcate a sense that God was still on their side? He obliged with a pulpit routine which likened the decision before the High Court of Justice to the choice offered to the people by Pontius Pilate: between the King (a.k.a. Barabbas, a murderer and oppressor of the people) compared with the soldiers in their red coats who were saviours
of the people, and who risked being killed or maimed in a third civil war if the King were not executed. He also reprised Psalm 149, with its invocation to bring out the two-edged sword (i.e. the ‘bright axe’ kept in the Tower of London) to execute upon kings and nobles ‘the judgment written’. Peters had a remarkable facility for bringing the Old Testament to life and making it relevant to contemporary issues in England: he added a text from Isaiah 14: 19–20 about a king ‘cast out of thy grave like an abominable branch . . . because thou hast destroyed thy land, and slain thy people’.
Sabbath reflection on the enormity of executing the King made little impact on the determination of the commissioners. Their Monday morning meeting in the Painted Chamber produced no backsliding. On the contrary, their first decision was to have his head cut off in broad daylight ‘in the open street before Whitehall’ between 10 a.m. and 5 p.m. on Tuesday 30 January – the very next day. A warrant to this effect was produced – it had been drawn up several days before, and had already been signed by some of the judges. It was directed to Colonels Hacker, Hunks and Phayre who were to stage-manage the event, and a further order was directed to officials at the Tower of London to deliver ‘the bright execution axe for executing malefactors’ into the willing arms of Sergeant Dendy. No fewer than fifty-nine commissioners eventually signed the warrant although several MPs had to be rounded up by Cromwell, who intercepted them at the door of the House of Commons. Some were understandably unenthusiastic, but few took any objection in principle. One who did was Cooke’s barrister friend Nicholas Love who had played a leading role in setting up the court but who now expressed firm opposition to the death sentence, as did William Heveningham: both men were present on the Monday and had no difficulty in declining Cromwell’s request that they append their signature. The stories that Cromwell overbore many of the signatories (‘I will have their hands now’) should not be credited – they were first told in 1660 by men like Downes, desperate to save their own skins. For example, one story accepted for centuries was that Cromwell had frog-marched Richard Ingoldsby to the table, clutched his hand and forced his signature on the warrant. But examination of his signature shows no sign of force: the story was invented to protect Ingoldsby, who had assisted the Restoration.
The Tyrannicide Brief Page 25
