The Tyrannicide Brief

by Geoffrey Robertson

  It was a very English coup – some forty of the excluded MPs were first taken to a cellar full of court records, a hot and musty hole known as ‘Hell’ and then put under ‘tavern arrest’ at two hostelries in the Strand. But what must have looked like a coup d’théâtre had the momentous consequence of a coup d’état. That afternoon, Oliver Cromwell rode into London evincing (or affecting) surprise, saying later that ‘since it was done he was glad of it, and would endeavour to maintain it’.13

  There is no doubt that the purge was approved by Fairfax, the army commander, whose headquarters were, quite literally, across the street. He was always practical and decisive. He had given the order to move the King to Hurst Castle and now he acted again with a simple determination to protect the national interest by sending Colonel Pride to exclude MPs who had not learnt the lesson of dealing with Charles, namely that no deal would stick. On 6 December the secluded MPs were told by Fairfax’s messenger, Colonel Axtell, that they were being kept in custody ‘by special order from the General and council of the Army’.14

  ‘Pride’s Purge’ cleared the parliamentary deck for disposing of the King without further negotiation. Ireton and army MPs like Ludlow were convinced that a trial was the only way forward. But as every Royalist news-sheet was saying, a trial would only take place once the necessity for it had taken hold in the quirky and fatalistic mind of Ireton’s father-in-law, who arrived so fortuitously in London just a few hours after Colonel Pride had secured an Independent majority for a Parliament quickly dubbed, and always remembered, as ‘the Rump’.

  Part II

  Republic

  8

  To Clutch the Swimming Hare

  THERE WAS NO available blueprint for the trial of Charles I. There were many precedents for treason trials, of course, ever since the Treason Act of 1351: they had this in common, that they always ended quickly, usually with ‘guilty’ verdicts, followed by sentences of death by beheading for aristocrats, or by disembowelling for common traitors.1 Trials of commoners were held in public before hand-picked juries, while those of royal status, like Mary Queen of Scots and Anne Boleyn, could be convicted in private by the monarch’s own privy council. But the trial of the monarch was a constitutional conundrum. In the first place, there was no court that could try a king: the Star Chamber had been abolished, and there were no privy councillors. The ‘Bill of Attainder’ procedure used against Strafford and Laud depended crucially on members of the House of Lords sitting as judges – and the dozen or so nobles left in the House were opposed to any trial of the monarch. Then came the legal problems, of how to turn on its head the common law proposition that Rex is lex and justify a criminal proceeding, Rex v. Rex. The King was above the law, and besides, Magna Carta vouchsafed him the right to trial by his peers, but – Catch 22 – a king could not, by definition, have any peers. Credible solutions to these paradoxes had to be found and quickly, if the King was to be put on trial at all.

  There had been no serious thought to call the King to account until November 1648. The first demands for his trial, made by Colonel Harrison at the Putney debates and by isolated voices thereafter, had been based on the Old Testament lex talionis: retribution for the blood he had shed, by the shedding of his blood. At Putney, Harrison had been answered by Cromwell, another self-made biblical scholar, by reference to ‘the sons of Zeruiah’ and the analogy was not lost on these bibliophile soldiers: the time was not yet ripe to bring Charles to justice. Over the ensuing twelve months, Cromwell’s belief in providence gradually persuaded him that the time was ripening – God-given victories in the second civil war revealed His will that the King, that ‘obstinate man whose heart God had hardened’, must have his sins requited on earth, as well as in the hereafter. Puritans fervently believed that victory proved that God was on their side – as Cooke wrote in awe, of the defeats suffered by the battle-hardened cavaliers,

  how many veteran commanders, famous in feats of chivalry, have been foiled, broken in pieces, and beaten at their own weapons by a few gentlemen and juvenile mechanics and honest tradesmen, whose hearts the Lord hath drawn forth and engaged to fight his battles; we must needs acknowledge that their valour, prowess and dexterity has either been infused by God, or improved by Him to miraculous proficiency.2

  In the discussions over the fate of the King, there may be discerned several ideological supports for the ‘rightness’ of a trial. The most straightforward was retribution for the two civil wars – the latter being the more blameworthy, since it had been instigated under the deceptive cover of peace negotiations and had involved invasion by the Scots. The soldiers’ cry for justice on the ‘man of blood’ had a respectable pedigree not only in biblical blood-guilt, but in the common law of incitement to murder: Charles had given the orders and had been present at many of the battles, egging his men on to kill and to pillage. By alliances with the Scots and the Irish, and with continental supporters rallied by his Queen, he had conspired to achieve the restoration of all his prerogatives, foreseeing widespread death and destruction of parliamentary forces and his own troops. English criminal law was based on the notion of individual responsibility and Charles Stuart was the individual who was most responsible.

  Why then should he be exempted from a trial for killing tens of thousands in a war of his own making? The doctrine that the King was above the law had been unacceptable when applied by the judges to uphold the ship-money tax, and the decision had been reversed by Parliament. By the same token, kings should not be above the criminal law – even the law of treason, if they so betrayed their trust as to invade their own kingdom.

  There was a further reason for a trial – to deter future monarchs from seeking to introduce ‘arbitrary and tyrannical government’ by ruling without Parliament and by taking up arms against the people. The trial of Charles Stuart would be a warning to his successors: after conviction, he could be humbled and pardoned, and either allowed to continue as a broken man and a limited monarch, or else forced to abdicate – his heirs would rule under a constitutional settlement of the army’s making. None of these rationales implied the extinction of hereditary monarchy – quite the contrary.

  Logic is rarely permitted to determine history. As late as December 1648, the idea of an English republic had no intellectual progenitor and no contemporary political advocate.3 The Levellers, for all their democratic ideals and early rhetoric in favour of putting the King on trial, fell strangely silent at this climactic moment. (‘Freeborn John’ was seized with a sudden desire for wealth: he left London to claim forfeited royalist estates in the north.) Some independent MPs, like Henry Marten and Arthur Haselrig, saw nothing but disaster in hereditary monarchy if the Stuarts were the heirs. But constitutional theorists, such as they were, favoured a monarchy limited by removing the King’s ‘negative voice’ and not the King himself. In practice, this would mean post-conviction elimination of Charles followed by banishment of his eldest belligerent son, the Prince of Wales. The Crown would then descend to his second son, James, Duke of York, or preferably to the untainted and malleable youngest son, eight-year-old Henry Stuart, Duke of Gloucester, a boy king who would be put under the guardianship of a ‘Lord Protector’ (e.g. Oliver Cromwell). Ireton was more imaginative, and favoured the idea of an elected monarch – but he would be a monarch none the less, a President, in modern parlance, elected (probably by Parliament) to rule for life. It was amidst this intellectual confusion, in a tense and nervous city, its factions all threatened by armed intervention from abroad, that the King’s fate came to be determined by the one standard that required compliance: the revealed will of God.

  The intellectual architects of the English republic were not inspired by the pagan example of Rome (as the ‘neo-classical’ Cambridge scholars have recently but ridiculously suggested). They were Puritans like John Cooke, Hugh Peters and John Milton, who came at this time to a revelatory and revolutionary reading of the Old Testament: kings were anathema to God. Kingship was an affliction craved by frail
and fallible men who failed to understand that it would only increase their own sufferings. This theory, that human monarchy was a transitory and sinful state of affairs disfavoured by God, was promulgated from the pulpit throughout December by Hugh Peters and is reflected in Cooke’s written speech for the prosecution at the King’s trial and in Milton’s subsequent justification of the proceedings. It was given its most detailed exposition in a tract written by Cooke two years later, with a title that summed it up: MONARCHY no creature of God’s making; wherein is proved by scripture and reason, that monarchical government is against the mind of God. The frontispiece carried quotations from the book of Hosea which adopted the prophet’s adjuration to Israel as a warning to England that monarchs were a divine infuriant:

  They have set up kings, but not by me: they have made princes, and I knew it not.

  O Israel [O England], thou hast destroyed thyself: but in me is thine help, I will be thy king . . .

  I gave thee a king in mine anger, and took him away in my wrath.4

  Cooke’s reasoning was that ‘a free people may not make themselves subject to any mortal man’. He was not a modern democrat: he believed that the natural form of government was ‘elective aristocracy’, because it was ‘a principle in nature for wise men to govern the ignorant, as parents their little children that cannot order themselves’, it being ‘most unnatural for fools to govern wise men’. However, ‘the government of one over many’ was anathema to God. Monarchs like Charles I ‘that assume an absolute supremacy to do what they like, are not creatures of God’s ordination . . . God permits such to be, as he suffers sin to be in the world’. Cooke revolted at the notion that God would ordain hereditary kingship, suffering ‘millions of people to be subject to the lusts of one man, and that to go in succession to a minor or an idiot . . . reason abhors it, and God approves it not, though he permits it to be’. That permission, however, was contingent on good behaviour, and so far as Charles was concerned, ‘Kings that style themselves defenders of the faith, if they prove themselves offenders of the faithful, God will take away their kingdoms in a way of justice’.5 The ‘way of justice’ was a criminal trial.

  God’s thinking was revealed by Gideon, who delivered the Israelites but disdained their fond demand that he be their king: ‘I will not rule over you, neither shall my son rule over you: the Lord shall rule over you.’6 In the first book of Samuel, Cooke found ‘the statute law concerning kings’ where it clearly appeared that they were not ordained by God’s command but ‘from the people’s pride and ardent importunity, they were mad for a king to be like unto the heathens’.7 The story of Nebuchadnezzar, driven out to live with beasts, provided a further proof, as did the fate of his son Belshazzar, for whose feast the writing (Mene, Mene, Tekel, Upharsin) was on the wall. How could sensible people contend for monarchy ‘when the spirit of God speaks so plainly, that whether kings be good men or bad, I will punish the people says the Lord, so long as they have any kings; it is not a government of my ordination; kings are people’s idols, creatures of their own making’.8 The fatal mistake of the Jews had been their inability to recognise Christ as their expected King because He ‘did not exult himself as a monarch, His kingdom being not of this world’.9 The people of England must now follow the psalmist’s injunction – and this became the text for Hugh Peters’ sermons in December and January – to take up the two-edged sword ‘to bind their kings with chains, and their nobles with fetters of iron’.

  The key players in the end game were Bible republicans, not cynical regicides. The Puritan conviction that the institution of monarchy was antipathetic to God provided the moral force which united with the dictates of human reason to turn the King’s trial into the event that established a republic. The first book of Samuel clearly warned the Israelites that to seek an earthly king was to reject God: a king would oppress them and they would ‘cry out in that day because of your king which ye shall have chosen you; and the Lord will not hear you in that day’ (8: 18). Verses from the first book of Samuel resounded from the pulpits of Puritan preachers to hasten the conviction among their congregations that England, like Israel, would be better off without a king.

  It became John Cooke’s conviction. He admitted that ‘many times during the late troubles’ he had wished for ‘the continuance of a kingly government in England, to have had the pre-eminence and the power in one good, gracious, just, merciful, valiant, faithful and patient man, as a Moses or a Job, who would die for the people’.10 But in the course of 1648, his Old Testament analysis had hardened into a certainty that kingship, no matter how gracious the incumbent King, was not of God’s making and he interpreted the extraordinarily wet summer (‘it was mid-winter at mid-summer’) as a sign of the Lord’s displeasure at those ‘wise men who speak of making peace with the King and tying him up so close to law that he should not be able to hurt the people’. Charles would never accept constitutional constraints, and to install a ‘King of clouts’ with no real power would be an act of national hypocrisy. Symbolic or no, kingship itself had to go.

  Cromwell, ever the pragmatist, still had to be convinced that the ‘sons of Zeruiah’ – the lords and the Presbyterians and the city fathers – would not rise up against any prosecution of the King. The Levellers had run for cover, but cavaliers were creeping back into London in worrying numbers – Fairfax took urgent measures to have them turned away from the city gates but as Cooke later recounted, these ‘malignants’ came out in the evening with ‘swords in their lips’ and their ‘nocturnal whisperings in taverns against the state and such as are godly in the land’.11 The Presbyterian MPs, excluded from the Commons by Colonel Pride, were certainly a corrupt and self-seeking group, some of whom merited Milton’s jibe that they clung to the King through the Newport treaty negotiations in order to achieve a settlement in which they would feature as the new nobility. But their preachers were not open to this reproach and the army sought in vain, at meetings in mid-December, to win their support for a trial. The Presbyterians appear pathetic in this crucial period and certainly their basic argument against the trial – that Charles had been misled by evil councillors12 – must have been infuriating to New Model commanders who knew that Charles was plotting to have Ormonde’s Irish army join up with Rupert’s fleet to launch a third civil war.

  The Presbyterians were on stronger ground when citing scripture – the first book of Samuel also carried David’s rhetorical question: ‘Who can stretch forth his hand against the Lord’s anointed, and be guiltless?’ (The Puritans denied that Charles was the Lord’s anointed, but it was a tricky passage to explain away.) They attacked as unsafe Cromwell’s reliance on providence, and argued that the role of the truly godly was to pray for Charles to repent. But turning the other cheek had little popular appeal to men whose cheeks had been bruised twice already. It was a time of national emergency, and some ‘purged’ MPs began to see things the army’s way: they were allowed back to the Commons. By the year’s end, Cromwell was satisfied that the Presbyterians in the city would not forcefully or even actively oppose the King’s trial.

  The only surviving communication by Cromwell in this crucial month is a seemingly insignificant note, dated 18 December, to secure a room in Doctors Commons – the chambers of civil lawyers – for Dr Isaac Dorislaus. This scholar had once been driven out of his Cambridge professorship as a ‘threat to monarchical government’ for lecturing on the virtues of the Roman republic,13 but served as judge-advocate in the New Model Army and had just been sent by Parliament on a diplomatic mission to The Hague. He returned with the dispiriting news that the Dutch were entering a commercial alliance with Ormonde’s confederacy in Ireland. On this particular day, Cromwell consulted Bulstrode Whitelocke and Thomas Widdrington, the leading parliamentary lawyers, about the trial of the King, and they expressed serious reservations about its legality.14 It seems a reasonable inference that Cromwell at this point decided to find other lawyers, like Dorislaus, who could support the prosecution. John Cooke would come
into the frame: he was close to Hugh Peters, Cromwell’s chaplain; had advised Fairfax; and was a close friend of Colonel Ludlow and other senior officers anxious to put the King on trial.15

  The King too had been spending time with his lawyers. The description of him as a ‘prisoner’ since Cornet Joyce took him into army custody is misleading: until his escape attempt at Carisbrooke, he had been permitted to hold court served by a hundred flunkeys and to receive whomever he liked. Afterwards, his retinue was reduced to thirty servants but access to him was readily granted. Parliament had generously approved his request for no less than forty-two expert advisers at Newport, and amongst the array of royalist legal talent was Sir Orlando Bridgeman, Archbishop Laud’s defence counsel who would later preside at the regicides’ trial and barristers Geoffrey Palmer (later Attorney-General) and John Vaughan, a notable chief justice some thirty years on.16 The news from London in November was full of speculation about army plans to put Charles on trial, and his legal defence strategy was first planned with these distinguished counsellors. In late November, when a copy of the army’s Remonstrance reached the King, he noted Bridgeman’s preliminary advice on the flyleaf: