The Tyrannicide Brief

by Geoffrey Robertson

  There was an air of intense expectation. Today, the King seemed no longer defiant: it was as if his bluff at the previous sessions had been called and now he genuinely wanted to achieve a compromise to save his life or his posterity or both. His speech, however, came as an anti-climax:

  I have something to say before sentence be given, that I may be heard in the Painted Chamber before the Lords and Commons . . . ’tis very well worth the hearing . . . I conjour you that you will grant me this hearing before any sentence be passed . . . it may be you have not heard of it beforehand; if you will, I will retire, and you may think of it . . .

  Charles went on in this vein until he drew breath, which gave Bradshawe the chance for an ironic counterpoint: ‘Sir, you have now spoken?’ The King agreed that he had. But what he had said, Bradshawe pointed out censoriously, was exactly what he had promised not to say, namely ‘a further declining of the jurisdiction of this court’. That was how the President interpreted the King’s request to be heard before the Lords and Commons – a request to be released as prisoner at the bar and reunited with his Parliament. At this, Charles became rattled: he seems genuinely not to have thought through the implications of his move:

  Pray excuse me, Sir, for my interruption, because you mistake me . . . I do not decline it, though I cannot acknowledge the jurisdiction of the court. Yet, Sir, in this give me leave to say, I would do it, though I did not acknowledge it in this, I do protest it is not the declining of it, since I say, if that I do say anything, but that that is for the peace of the Kingdom . . .

  Charles, for all this stammering incoherence, was clearly trying to have it both ways – to maintain his refusal to acknowledge the court, yet in one last attempt to restore his authority to request that it order a joint sitting of Lords and Commons which he would address as King. He had already intimated his wish through an intermediary – Peters had appeared in the Painted Chamber on Tuesday afternoon and must have foreshadowed it then. As Bradshawe next remarked, ‘Sir, this is not altogether new that you have moved to us, not altogether new to us, though the first time in person you have offered it to the court.’ He pointed out that it would mean further delay in a trial which had been scheduled to start a week before; that the King could have made his offer at any time during the previous sittings, that he wanted ‘another jurisdiction, and a co-ordinate jurisdiction’ – namely the High Court of Parliament itself, and ‘that which you would offer there, whatever it is, must necessarily be in delay of the justice here’. The judges were ready to deliver the verdict, but in deference to him they would retire to consider whether to grant his request.

  Bradshawe’s decision to adjourn complied to the letter with the resolution passed in the Painted Chamber earlier that morning. Like most judges required by law to adopt an inconvenient procedure for the benefit of an uncooperative party, he lists the inconveniences before granting the indulgence. But one commissioner, John Downes, would later claim that at this point he made an emotional appeal to his fellow commissioners: ‘Have we hearts of stone? Or are we men?’ To which Cromwell, sitting in front of him, turned around and hissed, ‘What ails you? Are you mad? Can’t you sit still and be quiet?’ Downes answered, ‘Sir, I cannot be quiet’ and at this point by his own account jumped to his feet and addressed Bradshawe. ‘I am not satisfied to give my consent to this sentence, but have reasons to offer to you against it, and therefore I desire that the court may adjourn to hear me.’ Downes’s account makes no sense, because Bradshawe was not about to pass sentence, he was about to adjourn.5 Downes first made this claim in 1660, to save himself from execution, and historians have accepted it uncritically, all too anxious for colourful material to embroider the trial transcript. At any event, with or without any intervention by Downes, an adjournment was granted: the commissioners retired to the Court of Wards to consider whether to proceed to sentence the King or whether to order that his offer, whatever it might turn out to be, should be entertained at a joint sitting of the Parliament.

  For an hour or thereabouts, the judges debated the King’s request.6 Downes at this point did support the King, only to be brow-beaten by Cromwell as ‘one peevish tenacious man’. ‘Surely this gentleman knows that he has to deal with the hardest-hearted man upon the earth.’7 This sounds authentic Cromwell: Downes was an unattractive figure who was perfectly willing to sign the execution warrant just two days later – a fact that undid him at his own trial. But he does appear to have been prompted by Cooke to make a further argument that sentence should not be passed until there had been a proper examination of the evidence.8 This would have involved Cooke’s calling in Westminster Hall the witnesses he had deposed in the Painted Chamber, and publicly producing the secret letters exposing the King’s treacherous dealings: Charles would be present and in a position to comment on or contest them, a temptation he would be unlikely to resist. Nicholas Love, who also favoured this procedure, spoke against passing the death sentence, as did Colonel Harvey: both refused to sign the warrant.9

  Cromwell and Ireton regarded the King’s request as a tactic to delay the trial, perhaps until the anticipated invasion by Ormonde and the Prince of Wales. It would turn the clock back, and put the King into the negotiating seat he had occupied at Newport – the position that the Army Council deemed so dangerous for national security in December that it had purged the House of Commons. In 1660, when all responsibility had to be shifted to Cromwell, it would be alleged that he ‘laughed and smiled and jeered in the court of wards,’10 to deride those who wanted to give the King yet another chance, but the decision to turn down Charles’s request was not reached by the force of Cromwell’s character. The King could not sensibly demand an adjournment without telling the court what it was that he intended to offer: once granted the opportunity to address Parliament he could offer as much or as little as he wished – the Newport terms, for tedious example. So the commissioners determined that the King should be dealt with according to law and without further delay or aspersion on the court’s authority.

  The majority of the commissioners – ‘jurors’ as they had been described in the statute establishing the court – were not awed or persuaded by Oliver Cromwell. Like ‘good men and true’ then and now, they were convinced beyond reasonable doubt by what they had seen and heard of the defendant. It was the King’s demeanour when confronted with Cooke’s charge that made the fatal impression. Lucy Hutchinson explained that what decided the issue for her husband and most of his colleagues was the fact that when charged with the blood spilled on both sides ‘he heard it with disdainful smiles, and looks and gestures which rather expressed sorrow’ that the parliamentary side had not been annihilated. Charles had said loudly to his guards as they left court on 22 January that the only death that troubled him in the least was that of Strafford – evidence of heartlessness that so outraged the commissioners that they ‘saw in him a disposition so bent to the ruin of all that opposed him’ that there was no alternative but to proceed to execution ‘with a good conscience for God and their country’.11 That was certainly John Cooke’s state of mind by the end of the trial – the King’s ‘confession’ to his guards was a significant factor in changing his own mind about the King’s fate.

  The time had come for Charles to have his right to expeditious justice, whether he wanted it or not. That is how Bradshawe put it when the court re-assembled:12

  BRADSHAWE: Sir, the return I have to you from the court is this: that they have been too much delayed by you already and this that you now offer has occasioned some little further delay. They are good words in the great old charter of England: ‘To no one will we sell, to no one will we deny or delay right or justice’. There must be no delay . . . they are resolved to proceed to punishment and to judgment and that is their unanimous resolution.

  Charles by now had only a tenuous grip on reality. He appeared surprised by the judge’s decision to proceed with the sentence. He tried Bradshawe’s patience by repeating his request, alternating condescension with w
heedling, using an image borrowed from Shakespeare’s hapless Richard II, who warned that God’s punishment for lifting vassal hands against his head ‘shall strike your children yet unborn and unbegot’.13

  KING: I confess it is a delay but it is a delay very important for the peace of the Kingdom . . . a little delay of a day or two further may give peace whereas a hasty judgment may bring on that trouble and perpetual inconveniency to the Kingdom, that the child that is unborn may repent it: and therefore again, I do desire that I may be heard by the Lords and Commons in the Painted Chamber . . .

  BRADSHAWE: Sir, I have received direction from the court.

  KING: Well, Sir.

  BRADSHAWE: . . . and they will proceed to sentence if you have nothing more to say.

  KING: Sir, I have nothing more to say. But I shall desire that this may be entered – what I have said.

  Even at this late stage, the court would have entertained a belated plea of ‘not guilty’, but Charles could not bring himself to recognise the court. He had not deigned to spell out the offer that he insisted would be so satisfactory that it would produce a lasting peace – an indication that it would have been nothing of the kind. He had behaved, throughout, as though he really did not think these lesser men – only a few of whom he could recollect meeting before – would dare to sentence their King to death. He was certainly not expecting Bradshawe to deliver anything by way of sentencing homily that would require an answer. But in this belief he underestimated the tough old lawyer whose tolerance had not been from slow-wittedness so much as a determination to be seen as conducting the trial fairly. It was now Bradshawe’s moment, to justify the proceedings and the sentence, and he did so in a long speech (it took more than half an hour to deliver) which had passages of real force and substance.14

  Bradshawe began with an emphatic denial that the King was above the law. For Charles to pit his ‘single judgment’ against the law made by the people of England through their elected representatives had been his fundamental error, for which courts of justice could call him to account. His office was one of trust, ‘elective’ in the sense that it required the continuing consent of the people, tacit so long as Parliament was meeting to redress their grievances. For all Charles’s talk at his trial of the liberty of the people ‘the great bulwark of the liberties of the people is the Parliament of England. And by subverting and rooting up that which your aim hath been to do, certainly at one blow you had confounded the liberties and the property of England.’ Parliament represented the people and an attack on Parliament was an attack on the people. That the people were in consequence entitled to have the monarch tried, condemned and deposed Bradshawe set out to prove – in turn from history, political philosophy and law. His history was dodgy: he cited as ‘precedents’ the removal of Edward II and Richard II (neither of whom had been removed by legal process) and ‘we will be bold to say that no Kingdom has yielded more plentiful experience than your native Kingdom of Scotland has done concerning the deposition and punishment of offending Kings’. This was a cheap shot, made cheaper by reference to the fate of Charles’s own grandmother, Mary Queen of Scots. Many of the 109 kings and queens of Scotland to that date had indeed met sticky ends, but through brutal clan rivalries and power struggles rather than the decision of a court.

  Where Bradshawe became more assured was in political philosophy: in a passage which predates ‘social contract’ philosophers like Locke and Rousseau by many decades, he identified the point at which the people might justifiably throw off their hereditary sovereign, namely when that sovereign broke his side of the bargain by failing to protect his subjects in return for their allegiance:

  For there is a contract and bargain made between the king and his people, and the oath is taken for the performance, and certainly, Sir, the bond is reciprocal, for as you are their liege Lord, so they are your liege subjects . . . the one tie, the one bond, is the bond of protection that is due from the sovereign, the other is the bond of subjection that is due from the subject. Sir, if this bond be once broken, farewell sovereignty!

  It was a powerful point, and a neat harness of feudal theory to the concept of a contract between king and people. It set up the rhetorical question: ‘Sir, whether you have been (as by your office you ought to be) a protector of England or a destroyer of England, let all England judge.’ By this stage, Charles was becoming unnerved: when Bradshawe turned to Cooke’s allegation that he was ‘tyrant, traitor and murderer’, he scoffed loudly (‘Ha’ is recorded) just as he had laughed when the charge was read on the first day. But Bradshawe explained that his arbitrary government was tyranny, his breach of trust was treason, and that ‘all the bloody murders which have been committed since the time of the division between you and your people must be laid to your charge’. For the crime of murder, the common law of England and the law of God15 laid down the sentence of death, and laid it down for everyone, kings not excepted. Bradshawe concluded, somewhat unnecessarily, by vowing defiance to all the royalist threats: he would trust in God (and, he might have added, in the special lead lining of his hat and the twenty officers protecting him around the clock). He turned avuncular (a common fault among judges at the end of sentencing homilies) and hoped that God would deliver the King from his blood guilt. By this point, Charles could bear this lecture no longer: Bradshawe’s condemnation had stung him and he suddenly wanted to defend himself:

  KING: I would desire only one word before you give sentence. And that is that you would hear me concerning these great imputations that you have laid to my charge.

  BRADSHAWE: Sir, you must give me now leave to go on, for I am not far from your sentence and your time is now passed.

  Bradshawe was on a roll. Pausing only for the acidic reflection that since ‘you have not owned us as a court and you look upon us as a sort of people met together’ the King could claim no right to address them:

  Truly, Sir, we are not here to make law, but to apply law. We may not acquit the guilty. What sentence the law affirms to a traitor, tyrant, murderer and public enemy to the country, that sentence you are now to hear read unto you, and that is the sentence of the court.

  Charles was crushed. Bradshawe was now in his element – he was, after all, a judge and used to tormenting convicted defendants with righteous put-downs. The King had been in turn arrogant, infuriating and contumacious: now he was an ordinary prisoner, with blood guilt heavy upon him and little time to wash it off before meeting his maker. He was obliged to suffer in silence a very long sentence, agreed by the court and read by Andrew Broughton which summarised Cooke’s charge and recapitulated the defendant’s refusal to plead, before reaching its dread ending:16

  This court does adjudge that the said Charles Stuart, as tyrant, traitor, murderer and public enemy to the good people of this nation, shall be put to death by the severing of his head from his body.

  Bradshawe rose with a formal incantation: ‘The sentence read and now published is the act, sentence, judgment and resolution of the whole court.’ The commissioners, at this prearranged signal, all stood up as an acknowledgement that it was unanimous. It took time for them to settle: as they did so a small and now stuttering voice was heard from the bar:17

  KING: Will you hear me a word, Sir?

  BRADSHAWE: Sir, you are not to be heard after sentence.

  KING: No, Sir?

  BRADSHAWE: No, Sir. Guard, withdraw your prisoner.

  KING: I may speak after the sentence by your favour, Sir. I may speak after the sentence is over. By your favour – hold! – the sentence, Sir – I say, Sir, I do.

  BRADSHAWE: Guard, take away the prisoner.

  And so the King’s trial ended, like many others, with the prisoner objecting as the guards take him down, out of sight and sound. Charles collected himself as he was being led away and flung a last few sarcastic words in the direction of the court reporters. ‘I am not suffered for to speak. Expect what justice other people will have.’18 Now he was and looked a convict: the soldiers in the
Hall, hitherto well behaved, began to chant, ‘Justice! Justice!’ and some (recognising that justice had already been done) cried, ‘Execution!’ ‘Poor soldiers,’ Charles was reported to have said – and if he did, it reflected his underestimation of the New Model Army, ‘for sixpence they would say as much for their commanders.’ As he was escorted through passageways lined with soldiers some breathed tobacco smoke over him. Above him, his judges were processing back to the Painted Chamber for the final business of the day: to appoint five of their number – including Ireton and Harrison – to arrange the time and place for the execution.19

  The King’s trial had been conducted with a fairness and politeness that were unparalleled in criminal proceedings and which set an important precedent. The rule emphasised by Bradshawe – that the law was no respecter of persons – meant that the consideration he gave to the King should be applied in favour of meaner men when they came to trial. In a word, it meant the judges and prosecutors must show some respect for the wretched individual at the bar.

  Charles was not, of course, wretched: he was engaged in a power play which would in due course make his family the executioner of his judges. His tactic was to confront them personally, rather than through legal counsel, although the best – Matthew Hale – was ready to appear for him. Significantly, Charles declined to instruct Hale, because he wanted to appear in all his dimmed glory, in charge of his fate, confronting his accusers alone. The presence of defending lawyers inevitably removes the spotlight from their client. (Centuries later, the first head of state to be tried in an international court would adopt the same tactic: Slobodan Milosevic ordered his lawyers to sit in the public gallery, so that television in Serbia would depict him as a solitary victim, alone against the world.) But Charles had seemed lonely rather than alone. He had not confounded lying witnesses, as had Strafford and Ralegh: his foils had been Cooke, with whom he had not engaged other than in occasional private whispers or public prods, and the ponderous but decent Bradshawe. He had attacked the court and scored well at the outset – when Cooke himself saluted the King’s ‘height of spirit and undaunted resolution’ – but his increasingly desperate repetition of the same point made him seem bothered and, by the end, beaten.