Crucial to the political claims of the putative new order being pursued by men of these views was a revised Agreement of the People. Responsibility for drafting this had been given to a committee of Levellers, and was quickly produced. But Lilburne was apparently disappointed to learn that it was not to be simply accepted – the Council of Officers not only looked it over, but also amended it, prior to publication. The initial draft seems to have presumed the abolition of the monarchy and House of Lords, dissolution of the current parliament and elections according to a new, equal, franchise. The electorate would include adult males who paid poor rates, were not royalists, servants or wage-earners, and had signed the Agreement. The demand that the representative of the people would have no power to command in matters of religion gave rise to extensive and fundamental discussion about freedom of conscience, the most extensive discussions of the whole series of debates. The issue they addressed had been thrashed out in polemics since 1641 – where was the boundary between freedom of conscience and religious anarchy, error and schism? These discussions took from 10 to 21 December at Whitehall, debates recorded in detail by William Clarke. This seems to have been a very serious attempt to thrash out the basis for a new political order, not simply a sop to radicals while the serious business of executing the King was transacted.41
There were, indeed, attempts to forestall the trial, which was strongly opposed by Lilburne and of course many others with less radical views. A plan seems to have emerged whereby the trial would be a means to pressure the King into making minimal but fundamental concessions. Proceedings against Hamilton might bring the King to see reason, or a trial of the King might lead him to accept deposition; excluded members might be readmitted in order to smooth the way to a compromise. Since the purge, thin attendances had meant that Parliament offered barely a fig leaf of respectability for army power – certainly dissolution would have been a more respectable policy for those acting in the name of popular sovereignty. But the argument against dissolution was tied up with an urgent desire to see justice done, and to forestall another war.42
Despite the importance of popular sovereignty in these arguments, these were days for the Saints, as much as the people. With Common Council elections due in London the purged parliament had passed legislation excluding all those who had sided with the King in the wars, or who had signed an engagement calling for a personal treaty the previous summer. This secured the City for the army – radical militia committees and financial support were quickly in place, and the chorus of opposition to the purge from City Presbyterians was robbed of institutional power. This might have been the effect of the exclusions from the franchise in the latest Agreement of the People: ‘a dictatorship of the godly [rather] than a golden age of democracy’.43 Such were the discomforts of the army’s position: an instrument of the people, but suspicious of the people’s attachment to monarchy, and to this particular king; committed to freedom of conscience, but forced to exclude from power those whose consciences dictated unpalatable policies.
Even the hand of providence was unclear. A desire for guidance led to the extraordinary spectacle of the Council of Officers listening solemnly to the visions of Elizabeth Poole, a woman of humble background from Abingdon, expelled from a Baptist congregation for her beliefs. Although many people thought miracles had ceased, it was quite common to accept the possibility of direct, personal revelation, and dreams were often interpreted in this light. But for women prophets this authority was ambiguous – it depended on their being empty vessels. There was an acute suspicion of female prophets and their motives.44
These were the resonances of Elizabeth Poole’s appearance before the General Council of the Army at Whitehall on 29 December, at the height of tense discussion about how to proceed. To be heard in such circumstances she had to act as a kind of spiritual consultant – answering questions put to her, but not affiliating herself with a partisan position.45 What she offered though was in a sense a reconciliation of the politics of Reformation and of Enlightenment, ‘declaring the presence of God with the army, and desiring that they would go forward and stand up for the liberty of the people as it was their liberty and God had opened the way to them’. Her vision had been of a man, representing the army, being a means to cure the weak and distressed land, personified of course as a woman. But she also warned that ‘the business was committed to their trust, but there was a great snare before them’. Colonel Rich was moved: ‘I cannot but give you that impression that is upon my spirit in conjunction with that testimony which God hath manifested here by an unexpected providence’. Poole was engaged in conversation by Harrison and Ireton, the latter declaring, ‘I see nothing in her but those things that are the fruits of the spirit of God’.46
So powerful was the impression that she was called back on 5 January. There she made a direct political intervention, in relation to the Agreement of the People. She warned the army that the kingly power had fallen into their hands, but only as ‘stewards, and so stewards of the gifts of God in and upon this nation’. As stewards their duty was to improve upon this gift, without fear of the great, but without overbearing their own position either: ‘I know it hath been the panges [?] of some of you that the King betrayed his trust and the parliament theirs; wherefore this is the great thing I must present to you: Betray not your trust’. She then handed over a paper against the King’s execution. This was very powerful, and very serious. But now she was closely questioned about the genuineness of her vision, and the preciseness with which she had been told to deliver a paper. Asked if she was told to speak against his trial or against his execution, she replied, ‘That he is to be judged I believe, and that you may bind his hands and hold him fast under’. The printed account is clearer: ‘Bring him to trial, that he may be convicted in his conscience, but touch not his person’.47 The seriousness of these encounters – they are carefully recorded – suggests a desire for guidance on the part of men unsure what God had called them to. Prophecy offered the means to resolve doubt, but was not easy to authenticate or interpret.
Providence, like the will of the people but for different reasons, was an unreliable guide for the detail of political life. In the aftermath of the second civil war there was undoubtedly a righteous anger about the King’s actions, a belief that he was a ‘man of blood’ who might now face Old Testament justice.48 This made a relatively easy bedfellow with ecstatic revelation, so that the trial of the King might reflect the culmination of a strand of millenarian speculation evident from early in the crisis. Trial and even regicide, in other words, might be a remote descendant of the Reformation politics of the Prayer Book rebellion. But the power of these views made contemporaries take them seriously, though they regarded them with caution too. Moreover, to modern eyes at least, they were not the natural partner of the more secular, contractarian thinking of the Agreement of the People, which underpinned the political legitimacy of the purge and trial. Those arguments seem to belong more to the world of the Enlightenment. Indeed the Agreement was to be literally a social contract, actually taken by members of the political community prior to their admission – a kind of secularized covenant.
Despite the certainty implied by the purge there had been subsequent indecision: the need for legitimacy was in tension with pressure, within the army and honest radical circles, for justice on the King, and a settlement which reflected the will of God. There were a variety of arguments in favour of trial, and for regicide, and a similar range of reasons for opposing, or failing to oppose, each of these things.49 By the end of December, however, a trial had been settled upon. Just before Christmas the army published an indictment of the King and called for his trial. This triggered a debate in Parliament about whether the King would stand trial for his life. Cromwell, a strong believer in providence, was not clear: ‘If any man whatsoever had carried on this design of deposing the King, and disinheriting his posterity or if any man had yet such a design, he should be the greatest traitor and rebel in the world. But since the
Providence of God hath cast this upon us, I cannot but submit to Providence, though I am not yet provided to give you my advice’. In the meantime Charles was brought to Windsor under heavy guard. On 28 December the Commons approved charges against the King which more or less echoed those of the army a few days earlier.50
From the start, the trial was as much about political legitimacy as about the King’s crimes. On 4 January the Commons declared ‘That the people are, under God, the original of all just power: that the Commons of England, in Parliament assembled, being chosen by and representing the people, have the supreme power in this nation; that whatsoever is enacted or declared for law by the Commons in Parliament assembled, hath the force of law, and all the people of this nation are concluded thereby, although the consent and concurrence of King or House of Peers be not had thereunto’. Three days earlier an ordinance establishing a High Court of Justice had been sent to the Lords, which rejected it; this declaration of popular sovereignty, represented in the Commons, was to be the political basis of the trial of the King, and of the new political order.51
On 6 January the House of Commons passed an Act without the assent of the House of Lords or the King – that setting up the court to try the King. This was the first time that one House had legislated on its own, without the assent of the other and of the King, and referred to that as an Act. It was a practical assertion of Commons supremacy, based on the sovereignty of the people, which could not be overborne by the Negative Voice, or veto, of the Lords or the King. This was a practical, or functional, radicalization which overbore opposition to the policies now being pursued; but it was also an important principle that was being declared. Moreover, if Charles agreed to undergo trial on the basis of this legislation, or to participate in the trial, he would be assenting to the underlying constitutional claims. By the same token, of course, refusal to stand trial made an obvious and pretty mainstream repudiation of the army’s proceedings in a simple and effective way. The text of the Act, naturally enough, passed over these constitutional and legal difficulties, concentrating instead on the supposed crimes. A clause limiting the authority of the Act to one month gave some guarantee of an eventual return to constitutional government. Its effect, however, was to subordinate Parliament to the military – to drive a wedge, in fact, between the army and its remaining legal credibility. Even among the trial commissioners – 135 were appointed – there were significant divisions over this claim to popular sovereignty. Many of the tensions, ambiguities and hesitations of the following month derived from this particular contest about the origins of legitimate political power.52
Among those staging the trial were those who felt it was important that the proceedings should reflect their view that the regime was founded in popular sovereignty. For example, one possible site for the trial was Windsor, which would have protected the proceedings from the view of the world, and made it easier to deal with the King, and to protect his dignity. Others preferred to try the King publicly, as an open statement about the nature of the regime, and their views prevailed: the trial was held in the Great Hall at Westminster, home of the central courts of the English legal system. The publicity attending the trial was magnified by official and semi-official reporting. Daily accounts of proceedings by licensed journalists documented the trial – one royalist, one official parliamentarian account and several independent but broadly parliamentarian. It seems clear that those in the post-purge regime most committed to demonstrating the importance of popular sovereignty had a significant hand in these arrangements. At the same time, however, there was clearly a desire to demonstrate that this sovereignty could be expressed through established forms of government. Holding the trial in the Great Hall laid claim to legal authority, and for three days of the proceedings the royal arms appear to have hung over proceedings.53 Even at this stage the assertion of popular sovereignty did not necessarily imply the end of monarchy, or of Charles I.
The court met for the first time on 8 January, and consisted of commissioners who would be both judge and jury. Only 52 of the 135 named commissioners attended and the civilian members in particular seem to have stayed away. The Lords made a last-minute counter-proposal but the Commons were increasingly willing to do without the Lords – a new Great Seal was being made which disavowed any role in government for the Lords. The president was to be John Bradshaw, a Cheshire lawyer of gentry stock, who had built up a prosperous practice before the war and who had made his way in the legal service of the parliamentary cause thereafter with the backing of Independents. A second key decision about the trial was the nature of the charges. It took ten days to draw them up, starting on 9 January, and the controversy was essentially about whether to draw the charges narrowly or broadly. The chief prosecutor, John Cook, lost out in these discussions – he had drafted a very wide-ranging charge reminiscent of the Grand Remonstrance. Instead, what was charged was the shedding of his people’s blood since 1642, in England and Ireland but not in Scotland. As drawn up the charges were easy to beat and many amounted to little more than pointing out that he had been present at some of the battles of the first civil war. It was clearly difficult to prove, in court, that his presence on those occasions had been ‘carried on for the advancement and upholding of a personal interest of will, power, and pretended prerogative to himself and his family, against the public interest, common right, liberty, justice, and peace of the people of this nation, by and from whom he was entrusted’. Still less did it clinch the argument that he was ‘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’.54
The trial of Charles I
This latter phrase, which concludes the charge, is a more or less direct quotation from the army Remonstrance which preceded the purge, but its insistence on Charles as the sole author of the troubles made it unlikely to stick. It might in fact have been an invitation to get the King, having pleaded, to allow others to be executed instead of him. The army, in fact, had said as much: if this cannot be proved, ‘let him then be acquitted in judgement and the guilt and blame be laid where else it is due’.55 In any case, few people can have thought that this was the set of charges most likely to secure a conviction, and it may be that they were deliberately enfeebled – the obvious weakness of the charges might have served as a bait to get the King to plead. If this is right it suggests once more that the real point of the trial was to get the King to recognize the court, not to secure his conviction. If the King could be tempted to answer the charges he would, implicitly, have recognized the jurisdiction of the court, and the claims about the constitution that it implied. Once he had pleaded a number of outcomes were possible – restoration as a monarch fettered by the principle of popular sovereignty, or deposition in favour of the Duke of Gloucester among them. Just as importantly, a number of very unappealing outcomes would have been foreclosed.56 These were desperate calculations, made in dire political circumstances, and this is not a point that one would want to start from in constructing a settlement. But this was where things stood, and this was one way out, well short of regicide.
For Charles there was plenty of reason to believe that he could embarrass his prosecutors, by refusing to plead – he had good principled and practical reasons to deny the implied claims about popular sovereignty – and thereby confronting them with the divisive question of what to do next. Sure enough, when the King appeared, on 20 January, he demanded to hear proof of the jurisdiction of the court. On 22 January, Charles, ‘discoursing with those about him’, apparently ‘spoke very much against the court, as no true judicature, and that he did not believe the major part of the commissioners were of that opinion’.57 And there was the rub. This was to be Charles’s main contribution to the drama – his refusal to recognize the legitimacy of the tribunal – and one significant source of encouragement to him in pursui
ng this line was that he did not believe his accusers were convinced about it either, and he was not completely wrong. He was certainly in a position to know that there were divisions even among those arranging the trial about what it was supposed to achieve, and he played on those divisions very successfully. He did not doff his hat to the officers of the court, and appeared in the garb of a Knight of the Garter, an expression of his respect for the aristocratic traditions of the English monarchy. He denied that this was a parliamentary court since he could not see any Lords, and he seemed willing to stand at the mention of the Lords but not in honour of the court as it was actually constituted. Charles apparently laughed at the charge of treason, and when he was told that his trial represented the will of the people, he replied that he was king by inheritance not election and so to answer would be in contravention of his coronation oath. As court room drama, the key issue was the nature of legitimate political authority, and both sides sought to make their case demonstratively.58
Before the formal proceedings began the use of the contempt clause was foreclosed – predicting that the King would refuse to plead, the trial organizers were anxious that this should not lead to an immediate condemnation. The first session of the court, on 20 January, had taken place on a Saturday. Bradshaw, apparently provoked by the King’s performance but unable to invoke the contempt clause, warned Charles to answer at his next appearance, on Monday, 22 January. A prayer meeting on the intervening Sunday was the occasion for further attempts to find a basis for compromise – Hugh Peter arguing for a distinction between salus populi (the good of the people) and vox populi (the voice of the people) as the governing principles of political legitimacy. Here, from a firebrand Independent preacher, was an olive branch to the King, who might in conscience subscribe to the first but not the second of these principles: indeed it is something he might himself have said in the late 1620s or during the Personal Rule. When proceedings resumed, the King refused once again to answer and was warned that the next time would be his last chance. In fact it was not. On the following day he refused again, and began to read a prepared statement about his grounds for refusing to answer. He now claimed, with some plausibility, to be the more credible defender of the people’s rights than this ‘court’, and stuck to his claim that he would answer for his conduct to a properly constituted parliament.59
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