The Tyrannicide Brief

by Geoffrey Robertson

  Then there was the delicate problem of Bradshawe’s inability to shut the King up. The commissioners thought he should be given some help, and drafted an answer for him to give when next Charles demanded to know their ‘lawful authority’ –

  That the Commons of England assembled in Parliament have constituted this court, whose power may not, nor should be permitted to be disputed by him, and that they were resolved he should answer his charge.17

  The common law rule that Acts of Parliament could not be questioned or investigated justified this answer, as a matter of law. As a matter of reality, this court had not been created by the Parliament, (1) because the Lords had adjourned rather than pass the ordinance and (2) because the army had forcibly excluded from the Commons those MPs whose votes would have defeated it. It was not the creation of ‘the Commons assembled in Parliament’ but of the Commons disassembled in Parliament by Colonel Pride. But the Rump was nevertheless a de facto authority, governing effectively with the support of the army. The interesting point is that in these circumstances its actions were not necessarily unlawful.

  The right of a victorious army to detain enemy leaders and put them on trial by court-martial was, as we have seen, an accepted feature of the law of war. Fairfax, a general of considerable scruple, had satisfied himself that he had the power to detain the King, who had himself consulted with some of the best lawyers in the land and never once applied to any judge for habeas corpus, the remedy always available for unlawful detention. There were some judges, especially Presbyterians, who were more than capable of standing up to the army – as William Prynne had proved on 10 January when his lawyers went to a chancery judge to obtain habeas corpus.18 For all the complaints made by and on behalf of Charles about the unlawfulness of his treatment, he never once challenged it in courts before judges who were bound to entertain his complaint.19 Lawyers of the calibre of Hale and Bridgeman had considered the point, and must have recognised that the army had the right to detain Charles as an enemy commander. It may be, of course, that a habeas corpus strategy was ruled out because an application to any court by the King could be interpreted as a concession that he was subject to the law.

  In effect, the army had delegated this power to the Rump. Ireton and Cromwell, officers turned politicians, preferred the Commons to govern the country rather than to fall back on the army’s emergency powers. This was a fateful decision because it turned on the alarmingly republican principle that the House of Commons, representing the people of England, was the ultimate repository of all legislative power – absent King and absent Lords. This new constitutional position was first recognised by the High Court on 22 January 1649, by its ruling that the King could not challenge the legitimacy of a court established by the Commons alone.

  In the likely event that the King continued his refusal to plead, Cooke reminded the commissioners that the common law had an invariable response: his silence would amount to a confession, and the charge would be ‘taken pro confesso’, i.e. as an admission of every allegation made in it. Charles had three choices: to plead ‘guilty’; to plead ‘not guilty’ and have his day in court; or to maintain his refusal to plead, in which case the charge would be taken pro confesso.

  Charles was eager to begin. He had brought his speech, finely honed over the weekend – a mixture of legal and political arguments against the authority of the court, written on a paper he held in his hand. He was escorted to his seat after the commissioners, seventy of them, had answered to their names. The court usher hollered for silence and Judge Bradshawe, with a wary eye on the gallery, directed the captain of the guard to arrest anyone who created a disturbance. He nodded in Cooke’s direction as a signal for the Solicitor-General to begin, but Cooke was whispering to Dorislaus – both lawyers had their heads down behind the bar, oblivious to the fact that the court was waiting. Charles, impatient to proceed, grasped the opportunity to get his own back: he took his cane (the silver tip firmly glued back) and poked Cooke violently on the shoulder. The barrister turned purple with indignation,20 but Bradshawe asked loudly, ‘Mr Solicitor, do you have anything to demand of the court?’ Cooke did indeed, and he quickly recovered:21

  May it please your Lordships, at the last court the charge was read over to the prisoner at the Bar, and his answer required. My Lord, instead of answering, he did dispute the authority of this High Court. My humble motion is, that the prisoner may be directed to make a positive answer, either by way of confession or negation. If he shall refuse, then the matter of charge may be taken pro confesso and the court may proceed according to justice.

  Bradshawe had been primed. He reminded the King of his objections at the previous hearing, and went on:

  Sir, the court now requires you to give a positive and particular answer to this charge that is exhibited against you: they expect you should either confess or deny it. If you deny, the Solicitor-General offers on behalf of the Commonwealth to make it good against you. Sir, the court expects you to apply yourself to the charge, so as not to lose any more time, and to give a positive answer.

  Bradshawe had forgotten to explain that if the King should refuse to plead then the charge would be taken pro confesso. Charles was unfazed: he consulted his notes and managed to get some way through his prepared speech before Bradshawe interrupted:22

  KING: A King cannot be tried by any superior jurisdiction on earth . . . If power without law may make laws, may alter the fundamental laws of the Kingdom, I do not know what subject in England can be sure of his life, or anything that he calls his own. But since I cannot persuade you, I shall tell you my reason as shortly as I can . . . I cannot answer this till I be satisfied of the legality of it. All proceedings against any man whatsoever . . .

  BRADSHAWE: Sir, I must interrupt you. I do this unwillingly, but what you do is not agreeable to the proceedings of any court of justice, as all of us who are acquainted with justice know. It seems you are about to enter into argument and dispute concerning the authority of this court, before whom you appear as a prisoner and are charged as a high delinquent. You may not do it.

  KING: Sir, I do not know the forms of law, but I do know law and reason. I know as much law as any gentleman in England. I do plead for the liberties of the people more than any of you do.

  BRADSHAWE: I must again interrupt you. You must not go on in this course . . .

  But he did, arguing with Bradshawe until the judge’s patience ran out and he called on the clerk of the court to put the charge:23

  CLERK: Charles Stuart, King of England, you have been accused on behalf of the people of England of high treason and other high crimes. The court has determined that you ought to give positive answer, whether you confess or deny the charges.

  KING: I will, as soon as I know by what authority you sit.

  BRADSHAWE: If this be all that you will say, then gentlemen, [addressing Colonel Hacker and his guards] you that brought the prisoner hither, conduct him back again.

  KING: I do desire to give my reasons for not answering: I require you give me time for that.

  BRADSHAWE: Sir, it is not for prisoners to require.

  KING: Prisoners! Sir, I am not an ordinary prisoner.

  That was the understatement of the century. At last, Bradshawe was asserting his authority:

  BRADSHAWE: The court has considered and already affirmed their jurisdiction. If you will not answer, we will give an order to record your default.

  KING: You never heard my reasons yet.

  BRADSHAWE: Sir, your reasons are not to be heard against the highest jurisdiction.

  KING: Show me wherever the House of Commons was a court of judicature of that kind.

  BRADSHAWE: Sergeant, take away the prisoner.

  This should have been the end of the day’s play. But Charles, as he stood up, turned to the audience and fired a loud parting shot at the court.

  KING: Remember that the King is not suffered to give his reasons for the liberty and freedom of all his subjects.

  This el
icited cries of ‘God save the King’ although they were ragged (as one observer said of the audience, ‘there was an awe upon them’24). But the shouts enraged Bradshawe, and he pounced:

  BRADSHAWE: Sir, you are not to have liberty to use this language. How great a friend you have been to the laws and liberties of the people, let all England and the world judge.

  The King was stung at this and made the mistake of beginning to contest the charges:

  KING: Sir, under favour. It was for liberty, freedom and laws of the subject that ever I took . . .

  He was about to say ‘took to arms’, a confession to starting the war. He stopped and checked himself, in obvious embarrassment, and attempted to recover:

  KING: I took . . . defended myself with arms. I never took up arms against the people, but for the laws.

  The King seemed on the brink of pleading self-defence, but Bradshawe was anxious to adjourn and missed the chance of inveigling the defendant into entering a plea.

  BRADSHAWE: The commands of the court must be obeyed here. No answer will be given to the charge.

  KING: Well, Sir!

  It was with this regular royal harrumph that the second session concluded. Bradshawe had presided more impressively and the King had ended with a telling slip of the tongue. Charles was irritated and argumentative, involved now in the proceedings and anxious – against his own better judgment – to play the justice game. As he was taken down the stairs, he made a fatal mistake: he admitted his true feelings to his escorts, telling them he was untroubled by any of the thousands of deaths that had been laid to his charge, except for that of one man – the Earl of Strafford. This voluntary confession counted as admissible evidence of his remorseless state of mind: it was immediately reported to Cooke, and convinced him that this ‘hard-hearted man’ was not only guilty of ‘so much precious Protestant blood shed in these three kingdoms’ but would be happy to shed more in order to regain his prerogatives.25 It was a turning point for the prosecutor, who had until now admired Charles’s spirit and ‘undaunted resolution’ at the trial and had thought him redeemable.26 The King’s insouciance about the casualties suffered by both sides in the civil war also swayed the judges: it showed that so long as the King lived, the country would be embroiled in war.

  Back at St James, Charles was concerned to publish the speech that Bradshawe had not allowed him to finish. His written reasons were quickly slipped to the clandestine royalist printers – probably by Bishop Juxon – and very soon appeared. They were for the most part predictable: You cannot impeach the King, since he is the source of law and can do no wrong. He did offer a defence, crafted more carefully in print than in court: ‘The arms I took up were only to defend the fundamental laws of this Kingdom against those who have supposed my power has totally changed the ancient government.’ His plea, in other words, was that he had acted in self-defence, at least in 1642. But self-defence is normally confined by law to the defence of one’s physical self, one’s family and one’s home. Could it extend to the defence of one’s prerogatives, or indeed one’s kingdom?

  The Third Session: Tuesday 23 January

  This day began ominously for the King: the House of Commons passed a law that writs should no longer go out under his name and royal seal, but by reference merely to the judge who had issued them. And the wording of criminal indictments, which since time immemorial had always accused offenders of acting contrary to ‘the peace of our Sovereign Lord the King, His Crown and Dignity’ would be changed to accuse them, more rationally, of acting ‘against the Peace, Justice and Council of England’. The great seal had already been altered to remove the King’s emblems, and any trace of Scotland: it now featured a map of England and Ireland, with the cross of St George and the Irish harp. The flip-side had an engraving by Thomas Simon of the House of Commons in session, and the proud legend (suggested by Henry Marten, and added to the coinage) ‘In the first year of freedom, by God’s blessing restored’.

  This was the first sign that Charles could not only be removed, but that he might not be replaced. None the less, he would be given one last chance to co-operate. The Lord President was instructed to make one final attempt to have the King recognise the court, and this attempt was to be triggered by the prosecutor’s request to proceed to judgment if he did not offer a plea. If the King remained contumacious, then the clerk was to put the charge to him for the last time. But if the King agreed to make answer, he would be given a copy of the indictment and allowed an adjournment until Wednesday at 1 p.m. Otherwise, that would be the time when the court would proceed to judgment and sentence.

  It is little wonder that the King looked melancholy and distracted when he was brought into Westminster Hall. Cooke was ready this time, to bring the King to the crunch: he leapt to his feet to make the speech which was later to hang him:27

  My Lord, to put an end to this great delay of justice, I shall now humbly move your Lordship for speedy judgement against him. I might press your Lordships, because according to the known rules of the law of the land, if a prisoner shall stand mute or contumacious and shall not put in an effective plea – guilty or not guilty – to the charge against him whereby he may come to a fair trial, that operates as an implicit confession – it may be taken pro confesso. The House of Commons has declared that the charge is true – and its truth, my Lord, is as clear as crystal and as clear as the sun that shines at noon day. But if your Lordship and the court is not satisfied about that, then on the people of England’s behalf, I have several witnesses to produce. And therefore I do humbly pray – and yet it is not so much I who pray, but the innocent blood that has been shed, the cry whereof is very great for justice and judgement – that speedy judgement be pronounced against the prisoner at the bar, according to justice.

  As speeches go by prosecuting counsel in treason trials, this was remarkably lacking in venom: compare Coke against Ralegh or St John against Strafford. In demanding speedy justice Cooke was riding the hobby-horse he had mounted in the Vindication but with some reason, since the King had been avoiding justice for seven years and was now obviously temporising: no other defendant in a criminal court would be suffered to insist on these delays. Although the Solicitor-General referred to the pre-judgment by the Commons, he none the less offered to produce witnesses to prove the King’s guilt beyond reasonable doubt. Given the agreement made by the judges a few minutes before in the Painted Chamber, Cooke’s motion for judgment was intended as the trigger for the court to force the King for the last time to choose whether to plead (either ‘not guilty’ or ‘guilty’) or to continue in his contumacious refusal to recognise the court. As Cooke was later (and truly) to maintain, his application for judgment was not a demand for the court to enter a verdict of guilty, but rather a demand that the court should require the defendant to choose. If (as Cooke in fact desired) he chose to plead ‘not guilty’, then the prosecution would call its evidence and the King would have an opportunity to challenge it. That Cooke’s motion for judgment was understood by all as a preliminary to putting the King to final election is clear from Phelps’s minutes of the meeting in the Painted Chamber, which noted the resolution ‘that the Lord President do inform the King, in case he shall continue contumacious, that he is to expect no further time; and that the Lord President therefore in the name of the court require his positive and final answer . . .’28

  After Cooke’s speech, that is precisely what Bradshawe did. More in control now, he picked up the ‘speedy justice’ slogan canvassed by the Solicitor-General:

  Sir, in plain terms – for justice is no respecter of persons – you are to give your positive and final answer, in plain English, whether you are guilty or not guilty of these treasons laid to your charge.

  There was a long pause. Charles had reached the point of no return. He could make a last objection to the legality of the court, or he might have his day in it – listen to Cooke’s evidence, belittle it and then present a defence that would establish for posterity the justice of his cau
se. That option he rejected, and for all his protestations that his stand was one of principle, he must have made the tough calculation that in any forensic battle, he would come off worst. Cooke was in command of all his secret correspondence captured at Naseby and from various messengers over the years, which would reveal his ongoing duplicity and traitorous dealings with the Scots, with the Irish and with continental powers. He simply did not dare contest the charge. His best and indeed only realistic tactic was to get in as many attacks on the legitimacy of the court as he could before he was stopped.29

  KING: For the charge, I value it not a rush. It is the liberty of the people of England that I stand for . . . [Bradshawe interrupts] by your favour, you ought not to interrupt me. There is no law that allows you to make your King your prisoner. I was negotiating a treaty with the two Houses of Parliament, then hurried along and brought hither. And therefore . . .