Politics and Procedure in the Trial of Charles
In the autumn and winter of 1648, England descended into a domestic political crisis unparalleled at any time in the country's history before or since. At Newport on the Isle of Wight, representatives from both Houses of Parliament struggled to conclude a treaty with their king that would end years of civil war and restore some semblance of political order.1 But many Englishmen trembled to contemplate the consequences of negotiated settlement with a man who had caused so much chaos and bloodshed, who had contrived the violent incursion of a Scottish army onto English soil in the summer of 1648, and even now continued to pin his hopes on an invasion of Catholic forces from Ireland. The officers and men of the New Model Army and their radical supporters in the country at large called for an end to negotiations. They also demanded retributive justice on all those, "from the highest to the lowest," who had almost drowned the nation in innocent blood, lest they seize the opportunity to finish the job. When the army placed the king himself under physical restraint, MPs proceeded regardless to declare themselves satisfied that the search for peaceful settlement ought to continue. The army now purged the House of Commons of the supporters of the Newport treaty.2 Many of its officers were eager enough to reach some kind of an understanding with the king themselves, but rather than negotiate, they preferred to dictate terms. When the king refused those that the earl of Denbigh purportedly took to him at Windsor Castle late in December 1648, the officers and their allies in the Rump House of Commons prepared to put Charles on trial instead.3 Justice would at last be done, and it would be seen to be done.
1
There followed arguably the most famous, certainly the most dramatic episode in the early modern history of the anglophone world.4 The public trial of the anointed sovereign of three kingdoms on charges of treason, tyranny, and murder was immortalized in the vigorous exchanges back and forth between Charles I and the chairman of the High Court of Justice, Lord President John Bradshaw. Their arguments about law, authority, and political right seemed to earlier generations of historians to have defined the very nature of the struggle between the king and his subjects, perhaps even to have marked a crucial turning point in the history of democracy and freedom. Even the skepticism of more recent revisionist accounts of the English civil wars and revolution have made little attempt to diminish the awesome historical significance of the king's trial and the act of regicide in which it ended. The trial and execution of Charles I offer proof positive of the hurricane force of Protestant antiformalism and the destructive potentiality of providential politics in early modern English culture.5
2
However famous, the trial of Charles I has never much commended itself as a model of lawful judicial proceeding. The king himself was dauntless in reminding his accusers of the illegitimacy of what they were doing and largely unbending in his refusal to acknowledge the authority of the High Court of Justice. Nonetheless, recent studies have shown that the commissioners responsible for conducting the most remarkable show-trial in English history made every effort to give an impression of following due process in the execution of their commission. In spite of the crescendo of demands for vengeance and the expiation of blood guilt during the autumn and winter of 1648–49, "the desire that Charles should be brought to justice meant that there was an attempt to judge him within a legal framework."6 Roman law traditions formed the juristic basis for the trial, in which the king's judges suborned the conventions of regal justice in their interpretation of the king's own transgression of royal sovereignty as inherently treasonable.7 The trial took place in the great hall at Westminster, and many of its ceremonial aspects self-consciously drew on forms and rituals which evoked the spirit of the ancient constitution, rather than the foundation of some new Jerusalem.8 Procedurally, too, the trial aped jurisprudential conventions.
3
This article concentrates on several of these procedural aspects of the trial of Charles I, in particular the statute law by which the High Court of Justice was erected and the trial conducted; debates among the trial commissioners and prosecuting counsel concerning the charges against the king; instructions given to counsel by the king's judges regarding the manner in which the court's solicitor, John Cooke, should present the allegations against the king; further arguments among the commissioners concerning the king's contumacy; their decision to hear the testimony of witnesses to his crimes; and finally the discussions that culminated in the condemnation and sentencing of the king. There is little explicit record of discussion among the king's judges concerning these procedural aspects of the trial, but there is sufficient indirect and circumstantial evidence to suggest that they all provoked vigorous debate. It will be argued that procedural wrangling among the trial commissioners sheds light on two important facts about the proceedings against Charles I—the depth of disagreement among the king's judges regarding the objectives and likely outcome of the trial; and the desire of a majority among them to ensure that the king survive the public ordeal that they had planned for him.
4
The outcome of the most famous political trial in English history was by no means a foregone conclusion. Even after the purge of the Commons in early December 1648, which supposedly removed from Westminster practically all supporters of a peace settlement negotiated with the king, MPs and army officers alike remained deeply divided on the subject of how to deal with Charles I.9 Some may indeed have seen an opportunity to expiate the guilt of shedding innocent blood by sacrificing the "capital author" of England's troubles. Others perhaps believed that regicide would be the prelude to the abolition of regal tyranny itself and the liberation of the freeborn all around the world. However, the vast majority feared, rather more rationally and entirely justifiably, that the execution of the king would have dire consequences for a fragile, deeply divided Westminster regime. For most English politicians, whether soldiers or civilians, the winter of 1648–49 was a time to proceed not headlong, but with caution. It remained possible, and many still believed it desirable, that a settlement might be reached by which Charles I might reascend his throne in return for surrendering many, if not all, of his English prerogative rights, including his veto over parliamentary legislative deliberations. Such a settlement might help shore up the fragile facade of legitimate authority in a state ravaged by social and religious disorder, thus securing the English foundations for the restoration of political stability right across the Atlantic archipelago. It might also help safeguard the factional supremacy of the army and the Independents at Westminster, providing a pretext for the destruction of crypto-royalist fellow travelers among the Presbyterian party.
5
Firm evidence that the trial was envisaged simply as a means to the end of regicide is extremely thin. Conversely, there are substantial grounds for believing that a trial need not have ended in king-killing at all. In November 1647, supposedly the very first time a public trial of the king had been mooted, one of his supporters had been assured by an army adjutator that the intention was "not that he would have one hair of his Head suffer, but that they might not bear the blame of the War."10 One year later, even the salutary experience of renewed civil war seems only marginally to have stiffened the resolve of the king's opponents. The Remonstrance of the Army published in November 1648 made some very strong demands, declaring the king guilty of tyranny, murder, and treason against his people, and calling for him to answer personally for their freedom and their blood, of which he had been so careless.11 But the manifesto was by no means the herald of the king's impending death that it is sometimes taken to be. The true power of the Remonstrance as a political statement rested not in its visionary clarity so much as its studied ambiguity. What its author, Henry Ireton, appears most concerned about was the danger that the treaty at Newport would lead to the king's restitution "without so much as a judicial Trial, or evident Remorse appearing in him proportionable to the Offence." Let him face his accusers, Ireton demanded, and if in so doing he could demonstrate his innocence, "let him then be acquitted in Judgment, and the Guilt and Blame be laid where else it is due." At least one onlooker believed that the real target of the Remonstrance was not the king at all, but the Presbyterian faction at Westminster.12 For his part, the king himself appears not to have been overly perturbed by the tone of Ireton's manifesto. Charles I had certainly read the Remonstrance and presumably would have known that, in its full-length version, it made oblique reference to the enactment of "capital Punishment upon the principal Author ... of our late Wars."13 Yet, when advised to escape from Carisbrooke as soldiers came to secure his person at the end of November, the king rejected the plan partly because "if the Army should seize him, they must preserve him for their own sakes, he being convinced that no Party could secure their own Interest without joining his to it, his Son being out of their reach."14
6
This was not an eccentric opinion, a delusion bred of captivity. Indeed, it seems to have been perfectly obvious to most contemporaries. From one corner of Europe it was reported that "We are here in a kind of amazement, to hear that your King should be designed for the grave before his time," on the simple and obviously correct assumption that regicide would lead inevitably to the renewal of war all across the islands of the Atlantic as soon as the Prince of Wales and his supporters asserted his claim to the thrones of three kingdoms. But this correspondent from Amsterdam was not alone in realizing the dangers of king-killing.15 Not surprisingly, English royalists were particularly quick to make a very similar case.16 Regicide would terminate at a stroke any pretense to legitimacy which its perpetrators might still cherish, ceding all initiative to the rightful heir to the throne—surely not all of the king's captors were so mad as to contemplate seriously such a desperate course of action.17 But quite clearly this was not merely the "wishful thinking" of desperate men in denial, refusing to accept that the worst possible fate might befall their master. In late December 1648, the well-informed royalist Marchamont Nedham reported that
there was a high ranting l[ette]re but very rationall (and supposed a device of Cromwells owne) directed to Coll. Pride, to be communicated to the councell of war, & Pride accordingly brought it thither and read it a little before they fell into a debate of ye charge ag[ains]t. his Ma[jesty]. The effect of it was to shew how irrationall a thing it was to resolve to take away the life of ye K[ing] for by so doing they would exchange a K[ing] in their power, for a K[ing] (meaning the Pr[ince of Wales]) out of their power, potent in forraigne allyances, & strong in ye affections of the people &c.18Opinion appears to have run quite strongly against regicide in the uppermost echelons of the military, possibly led by Cromwell himself, he having reportedly argued "that there was no policy in taking away his life ... [and] that if they should at any time loose the day, they could produce the King, their stake; and by His meanes work their peace."19 King-killing, in other words, was atrocious tactics. One anonymous member of the Council of Officers observed that if the country was to remain "under Kingly gover[n]m[en]t, then wee cannot desire a Prince more for our turnes, then one who seems to bee in every thing a Childe of misfortune, & here after will have more pitty then followers." But if England was to become a free state, "what everlasting inlets will there bee left, for torrents of mischiefs and machinations," contrived by those with a claim on legitimate inheritance, "against those who by misgovernment have already lost above halfe of their owne party, and will never bee able to gaine the Kings, which is three parts of the Kingdome."20 Equally forthright, Major Francis White wrote to Lord General Thomas Fairfax on 22 January warning that if the king was killed, "presently another layeth claim to the kingly office, and, for anything I know, hath as much right to the dominion as his predecessor had, and will questionless have all the assistance that this person can procure for the attaining thereof, and will be able to do more mischief because he is at liberty, and this [one] under your power."21
7
Many soldiers and civilian politicians remained convinced not only that they had to do a deal with Charles I, but also that they still could. The initial legislative preparations for proceeding "in a Way of Justice against the King, and other capital Offenders" began on 23 December 1648.22 But it was suspected that the decision to proceed with legislation for a trial was really just a way of bringing to bear some extra pressure on the king in advance of the Earl of Denbigh's trip to Windsor to make one last attempt at negotiation. A majority of MPs certainly managed to lend an air of moderation to the commencement of their preparations for the trial. It was noted that the committee set up on 23 December to draft legislation for a trial was headed by two absent Members, Bulstrode Whitelocke and Sir Thomas Widdrington, pillars of the parliamentarian judicial system who were well-known to be completely out of sympathy with the military coup that had ruptured the peace treaty at Newport on the Isle of Wight and made the pursuit of "justice" possible.23
8
The king's refusal even to receive the Earl of Denbigh at Windsor, let alone hear the terms he was authorized to offer, appears to have changed the mood at Whitehall and Westminster. On learning of the failure of the Denbigh mission, the council of officers voted to end the formalities of state which the king's attendants had continued to observe at Windsor.24 In the Commons, the shift of attitude became apparent during the debates on the draft of legislation for the king's trial. Discussing the manner of referring to the king in the preamble of the proposed Ordinance erecting a High Court of Justice, some argued that he be named simply as "Charles Stuart." Others believed that he should be referred to as king, "with his titles, &c., And that if he will give answer [to the court], then there need be no more. And that if he should demurre, then to take away his honours, and proceed against him as Charles Stuart."25 This discussion gave rise to further debate about whether to authorize the High Court of Justice to proceed as if the charge were proven pro confesso should the king indeed refuse to plead once his trial began.26 Although privately optimistic about his chances after his capture by the army on the Isle of Wight, in December and January the king had given out repeatedly that he would rather die than comply with the court, in an attempt to soften the terms he might be expected to accept as the price of his life. A correspondent of Sir Edward Nicholas wrote that he expected the parliamentary grandees to offer the king terms he was more likely to accept, "since they have found him readier to embrace death than those unreasonable ones mentioned in my former letters."27 After the rebuttal of Denbigh's offer, the Commons took defensive measures to narrow the king's options once he came to trial. According to Marchamont Nedham, on 30 December it was decided by MPs that if the king refused to plead, the charges against him would indeed be taken pro confesso, and the legislation passed by the Commons on 1 January certainly incorporated an instruction that the king's judges have power to proceed to judgment if the king contemned the authority of the High Court of Justice.28
9
The Ordinance drafted by the Commons was rejected by the House of Lords on 2 January 1649. In response to this setback, MPs seized the political initiative on 4 January by declaring the sovereignty of the people of England, and the constitutional supremacy of their representatives in the Commons.29 This sweeping constitutional revolution had profound significance for the course and conduct of the proceedings that would shortly take place against the king. Throughout January, the Commons were consumed by a number of conflicts over the future of the House of Lords, the judicial system of England and Wales, and to some extent the monarchy itself. The king's trial was deeply implicated in the struggle to define the practical consequences of the 4 January declaration of popular sovereignty. Some of the king's judges saw the imminent proceedings as an opportunity to undermine, perhaps even sweep away altogether key features of the ancient constitution, establishing in their place something more closely approximating democracy and representative government. By sharp contrast, many of the king's judges saw the trial as a last chance to preserve the substance, and at least some of the form of the ancient constitution. This conflict among the king's judges was of supreme importance for the planning and then the conduct of the proceedings against the king.30
10
On the basis of the 4 January declaration, MPs proceeded to pass the famous "Act ... for erecting of a High Court of Justice, for Trying and Judging of Charles Stuart, King of England."31 The Act differed from the Ordinance in a number of slight yet interesting respects, and we shall return to consider a significant addition to the powers of the High Court of Justice in due course.32 But in this particular regard the Act was identical to the Ordinance: in the event of the king's refusal to cooperate in court, his judges were authorized to assume that he was guilty as charged. This decision strengthened the hand of those within the High Court of Justice who were more determined that the king be removed as an obstacle to the firm establishment of popular sovereignty and Commons supremacy. However, it also ensured that a great deal would come to rest on the precise terms of the charge to which the king would be required to plead.
11
From the moment the commissioners first met in formal session in the painted chamber at the palace of Westminster on 8 January, the question of the charge would generate considerable debate, even to the extent of delaying the commencement of public proceedings. In the second half of December, and even into January, there had been reports that a Council of War had drawn its own charges against the king.33 One claimed that the army was preparing to charge the king under nine separate heads that not only included prosecuting war against Parliament by procuring invasions from Ireland and Scotland, but also parricide, breach of coronation oath by imposition of forced loans, collection of taxes (including ship money) and imposition of oaths contrary to law, plotting to restore Catholicism, preventing the relief of La Rochelle and the protection of Spanish maritime interests against the Dutch during the 1630s.34 In short, it was expected that Charles would face those detailed allegations of personal culpability for tyranny, treason, and bloodshed first leveled at him in January 1648, when Parliament justified the vote of no addresses by which it called a halt to all negotiations with the king, plotting at that time the invasion of England by a Scottish army.35 Yet evidently by December 1648, the army was split on the question of the charges to be brought against the king. While one faction was prepared to arraign the king on charges as old, as specific, and as all-encompassing as those made in the vote of no addresses, another, apparently led by Lord General Thomas Fairfax, preferred not only to limit accusations to those sins committed since the king's desertion of Parliament in 1642, and as vague as his betrayal of the liberties of the subject, but also openly to declare a desire to proceed principally in order to bring about "the speedy re-investing of His Majesties Royall Person."36
12
Evidently the divisions within the army at this time were mirrored in the commission for the king's trial. Constitutional radicals would appear to have preferred as wide-ranging a set of allegations as possible, while their more conservative colleagues attempted to limit the scope of the charges against the king. On 10 January 1649, the king's judges instructed his prosecutors to "prepare and present the charge against the King, according to the Act of the Com[m]ons assembled in Parliam[en]t," also ordering that a copy of the Act be transcribed and delivered to them to that end.37 The Act had described as "notorious" the fact that
Charles Stuart, the now King of England, not content with the many encroachments which his predecessors had made upon the people in their rights and freedom, hath had a wicked design totally to subvert the ancient and fundamental laws and liberties of this nation, and in their place to introduce an arbitrary and tyrannical government, and that besides all other evil ways and means to bring his design to pass, he hath prosecuted it with fire and sword, levied and maintained a civil war in the land, against the Parliament and Kingdom.38Since the terms of the Act were so broad, it was not necessarily obvious what exactly the king might be charged with—the specifics of civil war in England; the larger matter of his "wicked design"; or both?
13
Settling this crucial question took up a lot of the commissioners' time and appears to have generated considerable debate. On Friday 12 January, the court ordered that the charge be brought in on the following Monday, the 15th. It is interesting to note that the Monday meeting attracted the best attendance since proceedings had opened on 8 January, with fifty-eight commissioners present, a full twenty-one more than had met together on 13 January. Four commissioners made their first appearances this day (John Dove, John Fagge, Thomas Hammond, and Herbert Morley), another four (John Alured, Miles Corbet, Thomas Lord Grey, and William Lord Mounson) came for the first time since 8 January, and another five (James Cha-loner, Richard Deane, Sir Henry Mildmay, John Okey, and Robert Tich-borne) for the first time since 10 January. We might then say that, in total, at least thirteen commissioners were stung into action by the prospect of discussion of the charge, reflecting just how important an issue it was. Subsequently, it would take so long to agree (ten days) that it seems likely that the opening of the public proceedings was significantly delayed. The king had been expected to leave Windsor for Westminster on Monday 15th, but on the 15th it was noted that his arrival in the capital had been put back to the 17th, on the 17th it was noted that there was still no firm decision, and he did not actually come up to St. James' palace until Friday the 19th.39
14
From the outset, those who would restrict the charges to be brought against the king appear to have held the upper hand in the High Court of Justice. At the same time as the court had ordered the prosecution counsel to draw the charge, it had also appointed a committee "to consider of all circumstances in matters of order and method for the carrying on and managing the Kings trial, and for that purpose to advize with the Counsell assigned to prove the charge against the Kinge." Nicholas Love MP was put in charge of this committee. He had reportedly remarked in late December that the charge would be "nothing, but what he knew the K[ing] could cleerely acquit himselfe of, and that it would be drawne up without bitter or invective language, & in a grave modest stile."40 His close involvement presaged the concerted efforts made to limit the scope of the charges against the king. Yet, Love's committee clearly did not enjoy early success in bending counsel to its way of thinking. When the Court received the first draft of the charge on the 15th, without further comment, yet still managing to convey a lot, the trial commissioners then appointed another committee, "to whom the Councell might resort for theire further advice concerning any thing of difficulty in relacon to the Charge against the Kinge."41 Clearly, more explicit guidance of counsel's hand had been considered necessary. Newsbook reports elucidate the nature of the problem. One reported that the charge brought in on the 15th "was very large. In relation to the ill mannaging of the Navall businesse at the siege of Rochell in the yeere 1628. and for firing many places, and betraying and murdring the people in the Kingdoms of England, Scotland, and Ireland." Another report called it "very large, and high," and that it had been "committed to a select number of them to be abreviated, to make the dispatch sooner."42
15
The implications of these reports are clear. Counsel had evidently chosen to interpret the instruction to draw a charge in accordance with the Act in the broadest possible sense, and had adopted the approach favored by the hard-line army officers in the previous month. Limiting himself in neither time nor place, prosecutor John Cooke, long-time proponent of the case for radical constitutional reform, appears to have wanted Charles I to answer for tyranny in all three kingdoms in all three decades of his reign.43 In response, the High Court had effectively relieved him of responsibility for drawing the charge, as it becomes clear that the committee "to whom the Counsel might resort" had in fact taken over. An eyewitness spoke in 1660 of attending a meeting in the Exchequer chamber of the committee of the High Court for drafting the charge and attested that it had indeed debated shortening it.44 On the 17th, counsel again presented a shorter draft, but it was ordered to be "recommitted" to the committee appointed on the 15th. According to press reports, it was still "to[o] large," and the commissioners had "ordered to recommit it again to be yet made more brief."45
16
On 15 January the High Court of Justice had ordered the committee for abbreviation of the charge to "compare the charge ... with the evidence, And to take care for the preparing and fitting [it] for the Courts more cleere proceeding in the businesse."46 It would appear that the charge was rejected once again on 17 January on the basis of a comparison with witness depositions.47 The charge was ordered to be brought in on the following day. However, on 18 January, the High Court of Justice again appears to have had the proofs to the several articles of the charge read, "which took up much time."48 So it was not until the 19th that Gilbert Millington MP, member of the committee for the charge, reported the successful conclusion of discussion, and that "the Counsell have perfected the charge and are ready to present it"—by which time, of course, if the court had indeed read over twice, perhaps three times, the proofs to the allegations which they wished the king to answer, then any pretension to the independence of the prosecutor in drafting his own charge was entirely otiose. After three separate readings on the 19th, the charge was nevertheless referred back to him yet again "to make some small amendments as to the forme thereof." On the 20th, shortly before public proceedings were due to begin, John Cooke was finally permitted to present the charge, engrossed in parchment, to the court. It was then read to the judges, and returned to Cooke to sign before presenting it in public session. The court had given every appearance of having forced its principal prosecutor into submission to its will even before the trial began.
17
Differences of opinion over the charge reflect very different attitudes to the trial and its objectives. Those who wanted to dredge the record of the king's reign to the very depths, accusing him of complicity in his own father's murder, dragging up the mismanagement of the expedition to La Rochelle, before even broaching the subject of the Irish rebellion and the subsequent civil wars in England, evidently intended to make the maintenance of the king's position under the constitutional status quo entirely untenable, and perhaps even to place him in the gravest personal danger. In 1660, it was alleged that another radical Independent member of the High Court of Justice, Colonel Thomas Harrison, had indeed urged the committee for the charge to use the drafting of the indictment as an opportunity to "blacken" the king's name, conceivably (though not necessarily) in order to promote the case for regicide.49 By contrast, those who wished to abbreviate the charges against the king were effectively limiting the depth of the hot water in which he was about to be dropped. Focusing on thirty-odd eyewitness and hearsay accounts of his participation in several military actions during the English civil war, the case against the king as assembled by the trial commissioners would be easy enough to "prove" by the simple expedient of presenting the "evidence" around which it was constructed. But it would never convincingly sustain—nor did it perhaps even require—capital judgment. There is evidence to suggest that those who restricted the charges were attempting to lay the ground for some kind of strictly conditional reconciliation with the king. It is notable that debates on the charges in the High Court of Justice coincided with a number of discussions that took place at Windsor between Charles himself and important parliamentarian divines such as Hugh Peters. Simultaneously, several of the king's key supporters, led by the Duke of Richmond, met with the Independent "grandees" at Whitehall.50 Moreover, those who set about to restrict the charges against the king were effectively repudiating the more substantial allegations made in January 1648 in justification of the vote of no addresses, thereby rejecting also the explicit assumption made by Parliament at that time—the king's personal culpability for the crimes of treason, tyranny, and murder. In other words, those who advocated a minimalist charge sheet were in favor of reinstating the principle of evil counsel—the argument that the king had fallen under the influence of malicious third parties who had conspired to their own wicked ends to poison his relationship with his loving subjects. This was essential to the objective of eventually restoring the king to his throne and to the wider project of preserving as much as possible of the ancient constitution. As Ireton's Remonstrance had remarked, if the king could demonstrate that he himself was not guilty of prosecuting war for selfish ends, or else "that Parliament or any particular party in the Kingdome have raysed or continued the warre for private interests of their owne ... let him then be acquitted in Judgment, and the Guilt and Blame be laid where else it is due."51 Far from simply presenting an indictment of the king's actions, the charges against him were virtually an invitation to Charles to point the finger at the real guilty parties.
18
Notwithstanding the efforts to restrain the zeal of some commissioners in respect of "justice," the charge as finally agreed still made some very high claims regarding the king's "wicked design to erect and uphold in himself an unlimited and tyrannical power to rule according to his will," to which end he and his adherents had "traitorously and maliciously levied war against the present Parliament, and the people therein represented."52 As straightforward and unambiguous as it may seem, the charge is in fact extremely complex, and quite clearly the work of a committee. On the one hand, it accused Charles of plotting tyranny by destroying Parliament, and of not only causing, but then renewing civil war to that despicable end. On the other hand, its specific allegations, those aspects of the charge tailored precisely to the evidence already heard by the commissioners, focused solely on the king's personal role in the military action of the first civil war. Aside from the central section of the charge that dealt specifically with events in En-gland between 1642 and 1646, together with the accusation of commissioning future acts of war in Ireland, much of the content of the charge was vague and opaque. There was no specific indictment of the king's policies of the 1620s and 1630s, for example, no mention of the petition of right, ship money, Catholic plots, and all the rest of it. The betrayal of international Protestantism, at which Cooke appears to have been driving in the first draft of the indictment, did not eventually appear on the charge sheet. Once the trial had begun, one newsbook reported that the king had been charged with levying war against his people "besides actions done before this War." In the event, these larger "high crimes" were really only ever alluded to in the general.53 Although it was reported that MPs and officers of the army had envisaged an explicit allegation of commissioning the rebels in Ireland in 1641, for example, no such accusation against the king emerged in the charge.54 In fact, apart from vague allusions to "invasions from foreign parts," the only mention of Ireland in the charge concerned the threat of future danger from that quarter.55 This is in sharp contrast with a declaration piloted through the House by Thomas Chaloner, passed by the Rump on 15 January and published shortly after, which reflected on sins committed by the king since his plotting in 1640–41 in Scotland and Ireland, in which latter kingdom he "countenanced, if not contrived and authorized that horrid Rebellion," during which, it was claimed, more than 140, 000 Protestants had been murdered in the space of just eight weeks.56
19
When John Cooke went into print in February 1649 with what he claimed was the speech he would have delivered had the king pleaded to his charge, he found himself unable to resist incorporating "an additional Opinion concerning The Death of King James, The loss of Rochel, and, The Blood of Ireland." If it had not been intended to bring up parricide, La Rochelle, or the Irish rebellion during the trial, Cooke appears nevertheless to have been prepared at some point for precisely such an eventuality. So too, one might assume, had Cooke intended initially to address other subjects such as ship money, manipulation of the judiciary, abuse of prerogative to the prejudice of property rights, even knighthood fines, all of which were raked over in his public arraignment of the dead king's memory.57 It is highly unlikely, therefore, that there was any truth to Cooke's later claim that "It will appear, I hope, that some would have had a very voluminous and long Charge, [but] that I was utterly against it."58 In all likelihood, if anything had been left out of the charge, it was only left out because John Cooke had been instructed to leave it out.
20
The charge finally agreed, so began the single-most dramatic spectacle in the entire early modern history of the Atlantic archipelago. The king defiantly faced down his accusers in tones that ring down the ages. "I do stand more for the liberty of the people of England than any that come to be my pretended judges," he declared. Yet arguably the real conflict at the heart of proceedings in the High Court of Justice took place among his accusers who failed consistently to present a united front in response to this regal resistance. Because so many of them wanted to reach some kind of accommodation with the king, they allowed him anywhere between nine and twelve opportunities to plead to the charges (depending on which version of events one reads) in the face of which importunity the supposed inexorability of regicide simply evaporates.59 The king's plea was crucial to the calculations of the constitutional conservatives, for it would entail the king's acceptance of the jurisdiction of the court, and hence the authority which established it—namely the Rump House of Commons—in implicit repudiation of his own legislative veto. A minimalist construction could then be placed on the 4 January declaration of Commons supremacy, popular sovereignty could be sidelined, and the old oligarchy of Commons, Lords, and royal council could be reinstated.60 Cooke, on the other hand, sensed in the king's obduracy an opportunity for the radicals which they had been denied in the drafting of the charge.
21
Prior to the first public session of the trial on 20 January, Cooke was explicitly prevented by the commissioners from pressing that the court infer the king's guilt should he refuse to enter a plea, in order to preempt any danger that the solicitor might try to force the pace of proceedings.61 But every day thereafter Cooke consistently urged the court to use the power it had been given in the 6 January Act to punish the king's contempt with condemnation. On 23 January, he reminded the Lord President of the High Court of Justice, John Bradshaw, that the House of Commons "have declared, That it is notorious, That the matter of the Charge is true, as it is in truth (my Lord) as clear as chrystal, and as the Sun that shines at noon day, which if your Lordship and the Court be not satisfied in, I have notwithstanding, on the People of Englands behalf, several witnesses to produce."62 Bradshaw now warned the king that this was his last chance to plead.63 When once again Charles failed to comply, Bradshaw intimated that the court would now rule the king in contempt. The judges then adjourned to the painted chamber, the Lord President having given notice that the commissioners "intended to meet in Westminster Hall by ten of the clock next morning." The king was returned to Cotton House elsewhere in the palace of Westminster, his temporary lodging at that time, in the clear expectation that the court would sit the next day in order to his sentence.64 However, it does not appear that any formal ruling of contempt was ever made, despite the allusions and inferences of the court's own record.65 On the contrary, upon their reassembling in the painted chamber on 23 January, immediately after the public session in Westminster hall, a majority of commissioners ruled instead that notwithstanding the king's continuing refusal to plead, "which in law amounts to a standing mute and tacite confession of the charge. And notwithstanding the notoriety of the Fact charged [not the notoriety of the king's guilt], the Court would nevertheless (however) examine witnesses for the greater and clearer satisfaction of their owne judgments and consideration the next sitting." In light of this hiatus in proceedings, the king was taken back to more secure lodgings at St James's palace. Bradshaw had been wrong to presume to move proceedings to an abrupt conclusion, and a majority of his colleagues in the court acted assertively to overturn the Lord President's extemporized contumacy ruling. Cooke, moreover, had been absolutely right in his assumption that there were those in the court not satisfied with the Commons' denunciation of the king's guilt, who did not in effect believe his guilt to be "clear as chrystal."66
22
On 24 January, the commissioners prepared to receive witness testimony, recording that the evidence was to be heard "in regard the Kinge hath not pleaded to issue and that this examination was ex abundanti onley, for the further satisfaction of themselves." The previous afternoon, warrants had been sent out to summon witnesses, thirty of whom were now sworn, having obviously been on hand already. The commissioners then appointed a committee to deal with the witnesses, "graunted their summons for summoning further witnesses," and adjourned until 9A.M. the next day.67
23
As already suggested, it is extremely likely that the evidence now presented had been prepared and read over in Court more than once already, at least a week earlier. The king's judges could not possibly have needed to hear it all again. Clearly there was something going on here that was considerably more significant than simply providing the commissioners with "the greater and clearer satisfaction of their owne judgments." But, as the evidence was heard by the committee in camera on 24 January and then repeated before the full High Court of Justice the next day in the same way, it could not have been intended to perform any useful function in the persuasion of hostile public opinion either.68 Nor is it likely that anyone would have been convinced by the collection of eyewitness and hearsay reports on which the charge rested almost entirely. Although they paid vivid testimony to the presence of the king, in arms, often at the head of his armies, usually either shortly before or after, occasionally during some of the principal military episodes of the first war, nothing ever quite diminishes an overall impression that this was rather feeble "proof" for the prosecution of treason, tyranny, and murder charges. Although further research may cast some new light on the connections between some of the key deponents (several appear to hail from the same parts of England and Wales), it seems unlikely to diminish the patently obvious fact that they were, generally speaking, men of lowly, even completely insignificant social standing, many of them former foot soldiers in the royalist armies. Parliamentary commanders and leading civilian politicians could have easily provided far better evidence. Their silence may reflect a reluctance to be identified too closely with a prosecution that many hoped would fail. The colorful wartime recollections of a handful of nonentities that served instead certainly constituted extremely weak evidence indeed. It is hard to dispute the judgment of one hostile observer that "although they terme [the king] Tyrant, Traytor and Murtherer ... the Charges are without any proofe."69 There is every reason to accept the suspicion that the hearing of witnesses was little more than a charade—somebody was playing for time.70 Indeed, there is a strong likelihood that an attempt was being coordinated from somewhere within the High Court of Justice itself to arrange the king's last-minute capitulation.71
24
However, other members of the court—probably the minority bent on "blackening" the king's name—now apparently sought to force the pace by taking advantage of two crucial aspects of the court's provisions for handling the evidence against the king. Just before it adjourned on 24 January the Court had made an order permitting the introduction of evidence additional to that of the thirty deponents waiting in the wings since around the middle of January. Accordingly, on 25 January, further witnesses were indeed sworn, and it seems at least possible that theirs was, in effect, specially commissioned testimony.72 Henry Gooch, or Gouge, of Gray's Inn, testified to the king's deceptions at the treaty of Newport on the Isle of Wight the previous autumn. This evidence in fact spoke to no aspect of the charge whatever, although it helped underline the untrustworthiness for which the king stood indicted on the basis of extensive written evidence. Gooch's was, however, the only evidence for the king's complicity in the troubles of 1648. Supposedly Charles had himself told Gooch whilst at Newport that, although he was "upon a treaty, [and so] would not dishonour himself," he would instruct the Marquis of Hertford, who was then with him, to write to the Prince of Wales to grant commissions for such officers who were prepared to fight for their king's restoration. This too, however, was evidence heard as the court "satt private."73
25
More significantly, Richard Price, a London scrivener, was sprung on the court unannounced after lunch on 25 January, when it would appear that members of the public were in attendance, as very occasionally they were throughout the proceedings that took place in the painted chamber. According to one witness at the trials of the regicides in 1660, "one Price, a scrivener" had acted in a clerical capacity at the court, specifically assisting in the drafting of the charge, which places him within the precincts of the court before the public proceedings began, and at least a week before he was called on to give evidence.74 His testimony related to the so-called Ogle, or Brooke plot of the Independents and City peace party to do a deal with the king in January 1644.75 The common goal was a settlement from which the Scots and their war party allies were excluded, combining the restoration of episcopacy with toleration for the congregations. The only aspect of this testimony which appears in the slightest bit relevant to the charge concerns what Price had been told by the king and the earl of Bristol about the expectation of assistance from Ireland in the winter of 1643–44, but given the well-known existence of the letters of the king's cabinet, placed under the media spotlight years before, just what Price was really up to must remain suspect.76 The intention in calling him could only have been to remind anyone not perfectly well aware of the fact that the only reason the king had stayed so devious for so many years was that there were so many among his subjects who were themselves devious enough to conspire with him against erstwhile friends and allies.
26
There then followed the public presentation of "severall papers and letters of the Kings, under his own hand, and of his own writing, and other papers." On 24 January, Gilbert Millington, and Thomas Chaloner had been ordered "forthwith [to] repaire unto John Browne esq. clerk of the Howse of Peeres for such papers as are in his custody which are conducible for the businesse and service of the Court. And the said Mr. Browne is required to sende the papers hither accordingly." Gardiner noted that Chaloner brought in the papers "the contents of which have not been handed down, but which were probably concerned with the messages sent by the King at various times to invite foreign armies into England," and in fact they comprised thirty of the king's notorious cabinet letters, all of them embarrassingly public knowledge since 1645.77 The Act had authorized the commissioners to receive written evidences, whereas all the evidence strongly suggests that the original, but abortive, Ordinance had not.78 It is hard to imagine that the clause permitting other evidences had been inserted with any other material in mind—i.e., a plan may have been laid in early January by those most keen on humbling the king to confront him if at all possible with the Cabinet letters. Their existence certainly appears to have influenced the court's preparations for the trial. On the 17th, it was noted that the charge had been ordered abbreviated "there being so much high against the King, part under his hand, and some under his hand and Seal manual, and some under his hand and the old great Seale, with some other clear testimonies."79 Yet, the letters really added nothing substantially new to the case against the king, and had certainly never presented an obstacle to the search for a negotiated settlement in the past.
27
On the afternoon of 25 January, having heard the various written testimonies, the court "satt private" once more and passed several orders "preparatory to the sentence against the Kinge, but ordered that they should not be binding finally to conclude the Court." It is evident that a majority of trial commissioners were willing to give the king yet another last chance. Having appointed a committee to draft their judgment on the king, the commissioners then ordered that their absentee colleagues in or near London should be "summoned to attend the service of this Court tomorrow," in the clear expectation of further discussion of the sentence.80 Meeting after the adjournment of the Commons on the 26th, the commissioners subjected the draft sentence to "severall readings, debates and amendments." It was then finally agreed, and order given that it be "ingrossed" in parchment. The king was to be brought back to Westminster the following day formally to receive sentence. However, on 27 January, at a meeting of commissioners in the painted chamber preliminary to the historic fourth and final public session in the great hall, the court agreed that before sentence was handed down the king ought to have another opportunity to accept the jurisdiction of the court. Furthermore "in case the Kinge shall move anything else worth the Courts consideration, the Lord President upon the advice of his two assistants do give order for the Courts withdrawing to advise."81
28
Gardiner thought the votes regarding the sentence were noted as preliminary and not binding "probably" because they were passed by only forty-six commissioners.82 But the Act erecting the High Court had authorized any twenty commissioners to see justice done. More likely, the decision to describe the votes as preliminary to the sentence was a sign of further indecision among the commissioners, a judgment strongly borne out by the obvious reluctance to move to condemnation explicit in their orders immediately prior to the public session on the 27th. That reluctance was at least partially vindicated in the great hall later that day. Gardiner claimed that there were indeed those among the judges who had supported the drafting of a capital sentence because they believed that the king could be "induced by the terror of death to descend from the high position which he had taken," but that they did so through "radical misunderstanding of Charles' character."83 However, having been apprised beforehand that he was about to meet his doom, it is clear that the king did indeed come into the great hall on the 27th with something to offer his judges—namely a joint conference with Lords and Commons. Charles knew exactly what was required from him, but was only willing to meet his judges a little less than halfway. The trial commissioners agreed to consider his request for a conference once the king had assured Bradshaw that his offer was in no sense intended as a further declining of their authority.84 The king was then withdrawn from the bar and the court duly went into recess. To some of the trial commissioners, the king's request clearly looked like a partial acknowledgment of the court's authority, indicating that Charles had finally been persuaded that some show of cooperation might now prove politic to his cause. Consequently, a group among the commissioners argued in favor of permitting him to address both Houses as he had asked.85 But a majority was opposed to such a course as contrary to the principle of Commons supremacy, the constitutional basis on which the trial was conducted—if they had acceded to his request, they would have implicitly cast in doubt their authority to sit in judgment on the king. Still, it was not until maybe an hour after the court went into recess that the king's offer was formally rejected. Even then, almost incredibly, he was asked twice more if he had anything else to say to the court, many of his judges still vainly refusing to believe that he could not be persuaded to capitulate fully and finally.
29
The king stood by his request for a conference and asked only "that this may be entered what I have said."86 Explicitly acknowledging the authority of the court's own record, this could only be interpreted as an implicit acceptance of his judges' jurisdiction. But by then, of course, it was far too late to make any difference—other than perhaps to rub salt in his judges' self-inflicted wounds. They were about to commit to a course of action which could bring down on them nothing but hardship, even terror, perhaps eventually retribution, and Charles taunted them with a last-minute show of deference to their authority, in mockery, conscious or otherwise, of their desperate desire to secure his acknowledgment of the court. Similar reasoning—if that is what it was—may have inspired the king's parting words, from the scaffold in the street before Whitehall three days later, denying that he had started the war, and blaming certain "ill instruments" for the troubles that had arisen between himself and his subjects, hinting at precisely the kind of "evil counsel" defense that the charges against him had practically invited.87
30
Just as it had begun, the drama of the trial of Charles I ended in the conventional manner required by the norms of legal and judicial process, with the condemned man making his peace with one world in preparation for his passage to the next in a speech directed to posterity as much as to contemporaries. But on this extraordinary occasion, the man on the scaffold was the sanctified and legitimate king of England. Adherence to legal and judicial conventions had not persuaded anybody who was not already convinced of the legitimacy of this terrible act that the trial of Charles I had been anything other than a travesty of law and justice. But for many of those unhappy few who had been in the thick of it, the conventions of due process on which the trial of Charles I was patterned had seemed to hold out at least some hope of a nonviolent solution to England's troubles. Although it had required the jettisoning of the negative voice of the House of Lords, the king was put on trial by the authority of a law passed nominally by "Parliament," which at least ensured that proceedings would go ahead under "civilian" auspices, in a court bearing at least some resemblance to a constitutionally and legally valid tribunal. Members of that tribunal did everything possible to restrict the terrible dangers inherent in placing the king on trial for treason, tyranny, and murder. A majority among the trial commissioners ensured that the charge against him was drawn as narrowly as absolutely possible, tailoring it to fit the weakest imaginable evidence for his "crimes." They thus tied the hands of the prosecution counsel in an effort to restrain those more inclined to exact the highest price from Charles for the suffering of the 1640s. But there was really only so much they could do. Their eventual failure lay in failing to persuade Charles to take the last chances he was repeatedly offered in what would turn out to be the last few days of his life. In the course of four separate sessions of the High Court of Justice, the king had been offered at least nine distinct opportunities to plead to the charges against him—a clear indication of just how desperate most of his judges were to avoid king-killing, the action most likely to wreck England's ancient constitution. But the king's obstinate refusal to cooperate with his judges robbed the moderates of the initiative. The Act erecting the High Court of Justice had laid down that the charge against the king be taken pro confesso should he fail to plead, as well as permitting the king's sternest critics to pile on the pressure by introducing additional witness testimony and by giving the cabinet letters captured in 1645 another embarrassing airing. Under such circumstances, the king's judges could eventually no longer resist ruling Charles contumacious, however strongly some of them may have wished to prevent such a course. At the last, the debates which surrounded the condemnation and sentencing of the king marked the serious efforts of men desperate to throw obstacles in the way of a train of events now threatening to career out of control. After his execution, some of his judges invoked divine providence in justification of the regicide, depicting themselves as instruments of God's judgment on "the man of blood," and some of them may even have exulted in so great a fame. Yet equally it was adherence to the conventions of English legal process that had enabled many of the commissioners for the trial of Charles I to see out their awful responsibilities right to the bitter end
1
There followed arguably the most famous, certainly the most dramatic episode in the early modern history of the anglophone world.4 The public trial of the anointed sovereign of three kingdoms on charges of treason, tyranny, and murder was immortalized in the vigorous exchanges back and forth between Charles I and the chairman of the High Court of Justice, Lord President John Bradshaw. Their arguments about law, authority, and political right seemed to earlier generations of historians to have defined the very nature of the struggle between the king and his subjects, perhaps even to have marked a crucial turning point in the history of democracy and freedom. Even the skepticism of more recent revisionist accounts of the English civil wars and revolution have made little attempt to diminish the awesome historical significance of the king's trial and the act of regicide in which it ended. The trial and execution of Charles I offer proof positive of the hurricane force of Protestant antiformalism and the destructive potentiality of providential politics in early modern English culture.5
2
However famous, the trial of Charles I has never much commended itself as a model of lawful judicial proceeding. The king himself was dauntless in reminding his accusers of the illegitimacy of what they were doing and largely unbending in his refusal to acknowledge the authority of the High Court of Justice. Nonetheless, recent studies have shown that the commissioners responsible for conducting the most remarkable show-trial in English history made every effort to give an impression of following due process in the execution of their commission. In spite of the crescendo of demands for vengeance and the expiation of blood guilt during the autumn and winter of 1648–49, "the desire that Charles should be brought to justice meant that there was an attempt to judge him within a legal framework."6 Roman law traditions formed the juristic basis for the trial, in which the king's judges suborned the conventions of regal justice in their interpretation of the king's own transgression of royal sovereignty as inherently treasonable.7 The trial took place in the great hall at Westminster, and many of its ceremonial aspects self-consciously drew on forms and rituals which evoked the spirit of the ancient constitution, rather than the foundation of some new Jerusalem.8 Procedurally, too, the trial aped jurisprudential conventions.
3
This article concentrates on several of these procedural aspects of the trial of Charles I, in particular the statute law by which the High Court of Justice was erected and the trial conducted; debates among the trial commissioners and prosecuting counsel concerning the charges against the king; instructions given to counsel by the king's judges regarding the manner in which the court's solicitor, John Cooke, should present the allegations against the king; further arguments among the commissioners concerning the king's contumacy; their decision to hear the testimony of witnesses to his crimes; and finally the discussions that culminated in the condemnation and sentencing of the king. There is little explicit record of discussion among the king's judges concerning these procedural aspects of the trial, but there is sufficient indirect and circumstantial evidence to suggest that they all provoked vigorous debate. It will be argued that procedural wrangling among the trial commissioners sheds light on two important facts about the proceedings against Charles I—the depth of disagreement among the king's judges regarding the objectives and likely outcome of the trial; and the desire of a majority among them to ensure that the king survive the public ordeal that they had planned for him.
4
The outcome of the most famous political trial in English history was by no means a foregone conclusion. Even after the purge of the Commons in early December 1648, which supposedly removed from Westminster practically all supporters of a peace settlement negotiated with the king, MPs and army officers alike remained deeply divided on the subject of how to deal with Charles I.9 Some may indeed have seen an opportunity to expiate the guilt of shedding innocent blood by sacrificing the "capital author" of England's troubles. Others perhaps believed that regicide would be the prelude to the abolition of regal tyranny itself and the liberation of the freeborn all around the world. However, the vast majority feared, rather more rationally and entirely justifiably, that the execution of the king would have dire consequences for a fragile, deeply divided Westminster regime. For most English politicians, whether soldiers or civilians, the winter of 1648–49 was a time to proceed not headlong, but with caution. It remained possible, and many still believed it desirable, that a settlement might be reached by which Charles I might reascend his throne in return for surrendering many, if not all, of his English prerogative rights, including his veto over parliamentary legislative deliberations. Such a settlement might help shore up the fragile facade of legitimate authority in a state ravaged by social and religious disorder, thus securing the English foundations for the restoration of political stability right across the Atlantic archipelago. It might also help safeguard the factional supremacy of the army and the Independents at Westminster, providing a pretext for the destruction of crypto-royalist fellow travelers among the Presbyterian party.
5
Firm evidence that the trial was envisaged simply as a means to the end of regicide is extremely thin. Conversely, there are substantial grounds for believing that a trial need not have ended in king-killing at all. In November 1647, supposedly the very first time a public trial of the king had been mooted, one of his supporters had been assured by an army adjutator that the intention was "not that he would have one hair of his Head suffer, but that they might not bear the blame of the War."10 One year later, even the salutary experience of renewed civil war seems only marginally to have stiffened the resolve of the king's opponents. The Remonstrance of the Army published in November 1648 made some very strong demands, declaring the king guilty of tyranny, murder, and treason against his people, and calling for him to answer personally for their freedom and their blood, of which he had been so careless.11 But the manifesto was by no means the herald of the king's impending death that it is sometimes taken to be. The true power of the Remonstrance as a political statement rested not in its visionary clarity so much as its studied ambiguity. What its author, Henry Ireton, appears most concerned about was the danger that the treaty at Newport would lead to the king's restitution "without so much as a judicial Trial, or evident Remorse appearing in him proportionable to the Offence." Let him face his accusers, Ireton demanded, and if in so doing he could demonstrate his innocence, "let him then be acquitted in Judgment, and the Guilt and Blame be laid where else it is due." At least one onlooker believed that the real target of the Remonstrance was not the king at all, but the Presbyterian faction at Westminster.12 For his part, the king himself appears not to have been overly perturbed by the tone of Ireton's manifesto. Charles I had certainly read the Remonstrance and presumably would have known that, in its full-length version, it made oblique reference to the enactment of "capital Punishment upon the principal Author ... of our late Wars."13 Yet, when advised to escape from Carisbrooke as soldiers came to secure his person at the end of November, the king rejected the plan partly because "if the Army should seize him, they must preserve him for their own sakes, he being convinced that no Party could secure their own Interest without joining his to it, his Son being out of their reach."14
6
This was not an eccentric opinion, a delusion bred of captivity. Indeed, it seems to have been perfectly obvious to most contemporaries. From one corner of Europe it was reported that "We are here in a kind of amazement, to hear that your King should be designed for the grave before his time," on the simple and obviously correct assumption that regicide would lead inevitably to the renewal of war all across the islands of the Atlantic as soon as the Prince of Wales and his supporters asserted his claim to the thrones of three kingdoms. But this correspondent from Amsterdam was not alone in realizing the dangers of king-killing.15 Not surprisingly, English royalists were particularly quick to make a very similar case.16 Regicide would terminate at a stroke any pretense to legitimacy which its perpetrators might still cherish, ceding all initiative to the rightful heir to the throne—surely not all of the king's captors were so mad as to contemplate seriously such a desperate course of action.17 But quite clearly this was not merely the "wishful thinking" of desperate men in denial, refusing to accept that the worst possible fate might befall their master. In late December 1648, the well-informed royalist Marchamont Nedham reported that
there was a high ranting l[ette]re but very rationall (and supposed a device of Cromwells owne) directed to Coll. Pride, to be communicated to the councell of war, & Pride accordingly brought it thither and read it a little before they fell into a debate of ye charge ag[ains]t. his Ma[jesty]. The effect of it was to shew how irrationall a thing it was to resolve to take away the life of ye K[ing] for by so doing they would exchange a K[ing] in their power, for a K[ing] (meaning the Pr[ince of Wales]) out of their power, potent in forraigne allyances, & strong in ye affections of the people &c.18Opinion appears to have run quite strongly against regicide in the uppermost echelons of the military, possibly led by Cromwell himself, he having reportedly argued "that there was no policy in taking away his life ... [and] that if they should at any time loose the day, they could produce the King, their stake; and by His meanes work their peace."19 King-killing, in other words, was atrocious tactics. One anonymous member of the Council of Officers observed that if the country was to remain "under Kingly gover[n]m[en]t, then wee cannot desire a Prince more for our turnes, then one who seems to bee in every thing a Childe of misfortune, & here after will have more pitty then followers." But if England was to become a free state, "what everlasting inlets will there bee left, for torrents of mischiefs and machinations," contrived by those with a claim on legitimate inheritance, "against those who by misgovernment have already lost above halfe of their owne party, and will never bee able to gaine the Kings, which is three parts of the Kingdome."20 Equally forthright, Major Francis White wrote to Lord General Thomas Fairfax on 22 January warning that if the king was killed, "presently another layeth claim to the kingly office, and, for anything I know, hath as much right to the dominion as his predecessor had, and will questionless have all the assistance that this person can procure for the attaining thereof, and will be able to do more mischief because he is at liberty, and this [one] under your power."21
7
Many soldiers and civilian politicians remained convinced not only that they had to do a deal with Charles I, but also that they still could. The initial legislative preparations for proceeding "in a Way of Justice against the King, and other capital Offenders" began on 23 December 1648.22 But it was suspected that the decision to proceed with legislation for a trial was really just a way of bringing to bear some extra pressure on the king in advance of the Earl of Denbigh's trip to Windsor to make one last attempt at negotiation. A majority of MPs certainly managed to lend an air of moderation to the commencement of their preparations for the trial. It was noted that the committee set up on 23 December to draft legislation for a trial was headed by two absent Members, Bulstrode Whitelocke and Sir Thomas Widdrington, pillars of the parliamentarian judicial system who were well-known to be completely out of sympathy with the military coup that had ruptured the peace treaty at Newport on the Isle of Wight and made the pursuit of "justice" possible.23
8
The king's refusal even to receive the Earl of Denbigh at Windsor, let alone hear the terms he was authorized to offer, appears to have changed the mood at Whitehall and Westminster. On learning of the failure of the Denbigh mission, the council of officers voted to end the formalities of state which the king's attendants had continued to observe at Windsor.24 In the Commons, the shift of attitude became apparent during the debates on the draft of legislation for the king's trial. Discussing the manner of referring to the king in the preamble of the proposed Ordinance erecting a High Court of Justice, some argued that he be named simply as "Charles Stuart." Others believed that he should be referred to as king, "with his titles, &c., And that if he will give answer [to the court], then there need be no more. And that if he should demurre, then to take away his honours, and proceed against him as Charles Stuart."25 This discussion gave rise to further debate about whether to authorize the High Court of Justice to proceed as if the charge were proven pro confesso should the king indeed refuse to plead once his trial began.26 Although privately optimistic about his chances after his capture by the army on the Isle of Wight, in December and January the king had given out repeatedly that he would rather die than comply with the court, in an attempt to soften the terms he might be expected to accept as the price of his life. A correspondent of Sir Edward Nicholas wrote that he expected the parliamentary grandees to offer the king terms he was more likely to accept, "since they have found him readier to embrace death than those unreasonable ones mentioned in my former letters."27 After the rebuttal of Denbigh's offer, the Commons took defensive measures to narrow the king's options once he came to trial. According to Marchamont Nedham, on 30 December it was decided by MPs that if the king refused to plead, the charges against him would indeed be taken pro confesso, and the legislation passed by the Commons on 1 January certainly incorporated an instruction that the king's judges have power to proceed to judgment if the king contemned the authority of the High Court of Justice.28
9
The Ordinance drafted by the Commons was rejected by the House of Lords on 2 January 1649. In response to this setback, MPs seized the political initiative on 4 January by declaring the sovereignty of the people of England, and the constitutional supremacy of their representatives in the Commons.29 This sweeping constitutional revolution had profound significance for the course and conduct of the proceedings that would shortly take place against the king. Throughout January, the Commons were consumed by a number of conflicts over the future of the House of Lords, the judicial system of England and Wales, and to some extent the monarchy itself. The king's trial was deeply implicated in the struggle to define the practical consequences of the 4 January declaration of popular sovereignty. Some of the king's judges saw the imminent proceedings as an opportunity to undermine, perhaps even sweep away altogether key features of the ancient constitution, establishing in their place something more closely approximating democracy and representative government. By sharp contrast, many of the king's judges saw the trial as a last chance to preserve the substance, and at least some of the form of the ancient constitution. This conflict among the king's judges was of supreme importance for the planning and then the conduct of the proceedings against the king.30
10
On the basis of the 4 January declaration, MPs proceeded to pass the famous "Act ... for erecting of a High Court of Justice, for Trying and Judging of Charles Stuart, King of England."31 The Act differed from the Ordinance in a number of slight yet interesting respects, and we shall return to consider a significant addition to the powers of the High Court of Justice in due course.32 But in this particular regard the Act was identical to the Ordinance: in the event of the king's refusal to cooperate in court, his judges were authorized to assume that he was guilty as charged. This decision strengthened the hand of those within the High Court of Justice who were more determined that the king be removed as an obstacle to the firm establishment of popular sovereignty and Commons supremacy. However, it also ensured that a great deal would come to rest on the precise terms of the charge to which the king would be required to plead.
11
From the moment the commissioners first met in formal session in the painted chamber at the palace of Westminster on 8 January, the question of the charge would generate considerable debate, even to the extent of delaying the commencement of public proceedings. In the second half of December, and even into January, there had been reports that a Council of War had drawn its own charges against the king.33 One claimed that the army was preparing to charge the king under nine separate heads that not only included prosecuting war against Parliament by procuring invasions from Ireland and Scotland, but also parricide, breach of coronation oath by imposition of forced loans, collection of taxes (including ship money) and imposition of oaths contrary to law, plotting to restore Catholicism, preventing the relief of La Rochelle and the protection of Spanish maritime interests against the Dutch during the 1630s.34 In short, it was expected that Charles would face those detailed allegations of personal culpability for tyranny, treason, and bloodshed first leveled at him in January 1648, when Parliament justified the vote of no addresses by which it called a halt to all negotiations with the king, plotting at that time the invasion of England by a Scottish army.35 Yet evidently by December 1648, the army was split on the question of the charges to be brought against the king. While one faction was prepared to arraign the king on charges as old, as specific, and as all-encompassing as those made in the vote of no addresses, another, apparently led by Lord General Thomas Fairfax, preferred not only to limit accusations to those sins committed since the king's desertion of Parliament in 1642, and as vague as his betrayal of the liberties of the subject, but also openly to declare a desire to proceed principally in order to bring about "the speedy re-investing of His Majesties Royall Person."36
12
Evidently the divisions within the army at this time were mirrored in the commission for the king's trial. Constitutional radicals would appear to have preferred as wide-ranging a set of allegations as possible, while their more conservative colleagues attempted to limit the scope of the charges against the king. On 10 January 1649, the king's judges instructed his prosecutors to "prepare and present the charge against the King, according to the Act of the Com[m]ons assembled in Parliam[en]t," also ordering that a copy of the Act be transcribed and delivered to them to that end.37 The Act had described as "notorious" the fact that
Charles Stuart, the now King of England, not content with the many encroachments which his predecessors had made upon the people in their rights and freedom, hath had a wicked design totally to subvert the ancient and fundamental laws and liberties of this nation, and in their place to introduce an arbitrary and tyrannical government, and that besides all other evil ways and means to bring his design to pass, he hath prosecuted it with fire and sword, levied and maintained a civil war in the land, against the Parliament and Kingdom.38Since the terms of the Act were so broad, it was not necessarily obvious what exactly the king might be charged with—the specifics of civil war in England; the larger matter of his "wicked design"; or both?
13
Settling this crucial question took up a lot of the commissioners' time and appears to have generated considerable debate. On Friday 12 January, the court ordered that the charge be brought in on the following Monday, the 15th. It is interesting to note that the Monday meeting attracted the best attendance since proceedings had opened on 8 January, with fifty-eight commissioners present, a full twenty-one more than had met together on 13 January. Four commissioners made their first appearances this day (John Dove, John Fagge, Thomas Hammond, and Herbert Morley), another four (John Alured, Miles Corbet, Thomas Lord Grey, and William Lord Mounson) came for the first time since 8 January, and another five (James Cha-loner, Richard Deane, Sir Henry Mildmay, John Okey, and Robert Tich-borne) for the first time since 10 January. We might then say that, in total, at least thirteen commissioners were stung into action by the prospect of discussion of the charge, reflecting just how important an issue it was. Subsequently, it would take so long to agree (ten days) that it seems likely that the opening of the public proceedings was significantly delayed. The king had been expected to leave Windsor for Westminster on Monday 15th, but on the 15th it was noted that his arrival in the capital had been put back to the 17th, on the 17th it was noted that there was still no firm decision, and he did not actually come up to St. James' palace until Friday the 19th.39
14
From the outset, those who would restrict the charges to be brought against the king appear to have held the upper hand in the High Court of Justice. At the same time as the court had ordered the prosecution counsel to draw the charge, it had also appointed a committee "to consider of all circumstances in matters of order and method for the carrying on and managing the Kings trial, and for that purpose to advize with the Counsell assigned to prove the charge against the Kinge." Nicholas Love MP was put in charge of this committee. He had reportedly remarked in late December that the charge would be "nothing, but what he knew the K[ing] could cleerely acquit himselfe of, and that it would be drawne up without bitter or invective language, & in a grave modest stile."40 His close involvement presaged the concerted efforts made to limit the scope of the charges against the king. Yet, Love's committee clearly did not enjoy early success in bending counsel to its way of thinking. When the Court received the first draft of the charge on the 15th, without further comment, yet still managing to convey a lot, the trial commissioners then appointed another committee, "to whom the Councell might resort for theire further advice concerning any thing of difficulty in relacon to the Charge against the Kinge."41 Clearly, more explicit guidance of counsel's hand had been considered necessary. Newsbook reports elucidate the nature of the problem. One reported that the charge brought in on the 15th "was very large. In relation to the ill mannaging of the Navall businesse at the siege of Rochell in the yeere 1628. and for firing many places, and betraying and murdring the people in the Kingdoms of England, Scotland, and Ireland." Another report called it "very large, and high," and that it had been "committed to a select number of them to be abreviated, to make the dispatch sooner."42
15
The implications of these reports are clear. Counsel had evidently chosen to interpret the instruction to draw a charge in accordance with the Act in the broadest possible sense, and had adopted the approach favored by the hard-line army officers in the previous month. Limiting himself in neither time nor place, prosecutor John Cooke, long-time proponent of the case for radical constitutional reform, appears to have wanted Charles I to answer for tyranny in all three kingdoms in all three decades of his reign.43 In response, the High Court had effectively relieved him of responsibility for drawing the charge, as it becomes clear that the committee "to whom the Counsel might resort" had in fact taken over. An eyewitness spoke in 1660 of attending a meeting in the Exchequer chamber of the committee of the High Court for drafting the charge and attested that it had indeed debated shortening it.44 On the 17th, counsel again presented a shorter draft, but it was ordered to be "recommitted" to the committee appointed on the 15th. According to press reports, it was still "to[o] large," and the commissioners had "ordered to recommit it again to be yet made more brief."45
16
On 15 January the High Court of Justice had ordered the committee for abbreviation of the charge to "compare the charge ... with the evidence, And to take care for the preparing and fitting [it] for the Courts more cleere proceeding in the businesse."46 It would appear that the charge was rejected once again on 17 January on the basis of a comparison with witness depositions.47 The charge was ordered to be brought in on the following day. However, on 18 January, the High Court of Justice again appears to have had the proofs to the several articles of the charge read, "which took up much time."48 So it was not until the 19th that Gilbert Millington MP, member of the committee for the charge, reported the successful conclusion of discussion, and that "the Counsell have perfected the charge and are ready to present it"—by which time, of course, if the court had indeed read over twice, perhaps three times, the proofs to the allegations which they wished the king to answer, then any pretension to the independence of the prosecutor in drafting his own charge was entirely otiose. After three separate readings on the 19th, the charge was nevertheless referred back to him yet again "to make some small amendments as to the forme thereof." On the 20th, shortly before public proceedings were due to begin, John Cooke was finally permitted to present the charge, engrossed in parchment, to the court. It was then read to the judges, and returned to Cooke to sign before presenting it in public session. The court had given every appearance of having forced its principal prosecutor into submission to its will even before the trial began.
17
Differences of opinion over the charge reflect very different attitudes to the trial and its objectives. Those who wanted to dredge the record of the king's reign to the very depths, accusing him of complicity in his own father's murder, dragging up the mismanagement of the expedition to La Rochelle, before even broaching the subject of the Irish rebellion and the subsequent civil wars in England, evidently intended to make the maintenance of the king's position under the constitutional status quo entirely untenable, and perhaps even to place him in the gravest personal danger. In 1660, it was alleged that another radical Independent member of the High Court of Justice, Colonel Thomas Harrison, had indeed urged the committee for the charge to use the drafting of the indictment as an opportunity to "blacken" the king's name, conceivably (though not necessarily) in order to promote the case for regicide.49 By contrast, those who wished to abbreviate the charges against the king were effectively limiting the depth of the hot water in which he was about to be dropped. Focusing on thirty-odd eyewitness and hearsay accounts of his participation in several military actions during the English civil war, the case against the king as assembled by the trial commissioners would be easy enough to "prove" by the simple expedient of presenting the "evidence" around which it was constructed. But it would never convincingly sustain—nor did it perhaps even require—capital judgment. There is evidence to suggest that those who restricted the charges were attempting to lay the ground for some kind of strictly conditional reconciliation with the king. It is notable that debates on the charges in the High Court of Justice coincided with a number of discussions that took place at Windsor between Charles himself and important parliamentarian divines such as Hugh Peters. Simultaneously, several of the king's key supporters, led by the Duke of Richmond, met with the Independent "grandees" at Whitehall.50 Moreover, those who set about to restrict the charges against the king were effectively repudiating the more substantial allegations made in January 1648 in justification of the vote of no addresses, thereby rejecting also the explicit assumption made by Parliament at that time—the king's personal culpability for the crimes of treason, tyranny, and murder. In other words, those who advocated a minimalist charge sheet were in favor of reinstating the principle of evil counsel—the argument that the king had fallen under the influence of malicious third parties who had conspired to their own wicked ends to poison his relationship with his loving subjects. This was essential to the objective of eventually restoring the king to his throne and to the wider project of preserving as much as possible of the ancient constitution. As Ireton's Remonstrance had remarked, if the king could demonstrate that he himself was not guilty of prosecuting war for selfish ends, or else "that Parliament or any particular party in the Kingdome have raysed or continued the warre for private interests of their owne ... let him then be acquitted in Judgment, and the Guilt and Blame be laid where else it is due."51 Far from simply presenting an indictment of the king's actions, the charges against him were virtually an invitation to Charles to point the finger at the real guilty parties.
18
Notwithstanding the efforts to restrain the zeal of some commissioners in respect of "justice," the charge as finally agreed still made some very high claims regarding the king's "wicked design to erect and uphold in himself an unlimited and tyrannical power to rule according to his will," to which end he and his adherents had "traitorously and maliciously levied war against the present Parliament, and the people therein represented."52 As straightforward and unambiguous as it may seem, the charge is in fact extremely complex, and quite clearly the work of a committee. On the one hand, it accused Charles of plotting tyranny by destroying Parliament, and of not only causing, but then renewing civil war to that despicable end. On the other hand, its specific allegations, those aspects of the charge tailored precisely to the evidence already heard by the commissioners, focused solely on the king's personal role in the military action of the first civil war. Aside from the central section of the charge that dealt specifically with events in En-gland between 1642 and 1646, together with the accusation of commissioning future acts of war in Ireland, much of the content of the charge was vague and opaque. There was no specific indictment of the king's policies of the 1620s and 1630s, for example, no mention of the petition of right, ship money, Catholic plots, and all the rest of it. The betrayal of international Protestantism, at which Cooke appears to have been driving in the first draft of the indictment, did not eventually appear on the charge sheet. Once the trial had begun, one newsbook reported that the king had been charged with levying war against his people "besides actions done before this War." In the event, these larger "high crimes" were really only ever alluded to in the general.53 Although it was reported that MPs and officers of the army had envisaged an explicit allegation of commissioning the rebels in Ireland in 1641, for example, no such accusation against the king emerged in the charge.54 In fact, apart from vague allusions to "invasions from foreign parts," the only mention of Ireland in the charge concerned the threat of future danger from that quarter.55 This is in sharp contrast with a declaration piloted through the House by Thomas Chaloner, passed by the Rump on 15 January and published shortly after, which reflected on sins committed by the king since his plotting in 1640–41 in Scotland and Ireland, in which latter kingdom he "countenanced, if not contrived and authorized that horrid Rebellion," during which, it was claimed, more than 140, 000 Protestants had been murdered in the space of just eight weeks.56
19
When John Cooke went into print in February 1649 with what he claimed was the speech he would have delivered had the king pleaded to his charge, he found himself unable to resist incorporating "an additional Opinion concerning The Death of King James, The loss of Rochel, and, The Blood of Ireland." If it had not been intended to bring up parricide, La Rochelle, or the Irish rebellion during the trial, Cooke appears nevertheless to have been prepared at some point for precisely such an eventuality. So too, one might assume, had Cooke intended initially to address other subjects such as ship money, manipulation of the judiciary, abuse of prerogative to the prejudice of property rights, even knighthood fines, all of which were raked over in his public arraignment of the dead king's memory.57 It is highly unlikely, therefore, that there was any truth to Cooke's later claim that "It will appear, I hope, that some would have had a very voluminous and long Charge, [but] that I was utterly against it."58 In all likelihood, if anything had been left out of the charge, it was only left out because John Cooke had been instructed to leave it out.
20
The charge finally agreed, so began the single-most dramatic spectacle in the entire early modern history of the Atlantic archipelago. The king defiantly faced down his accusers in tones that ring down the ages. "I do stand more for the liberty of the people of England than any that come to be my pretended judges," he declared. Yet arguably the real conflict at the heart of proceedings in the High Court of Justice took place among his accusers who failed consistently to present a united front in response to this regal resistance. Because so many of them wanted to reach some kind of accommodation with the king, they allowed him anywhere between nine and twelve opportunities to plead to the charges (depending on which version of events one reads) in the face of which importunity the supposed inexorability of regicide simply evaporates.59 The king's plea was crucial to the calculations of the constitutional conservatives, for it would entail the king's acceptance of the jurisdiction of the court, and hence the authority which established it—namely the Rump House of Commons—in implicit repudiation of his own legislative veto. A minimalist construction could then be placed on the 4 January declaration of Commons supremacy, popular sovereignty could be sidelined, and the old oligarchy of Commons, Lords, and royal council could be reinstated.60 Cooke, on the other hand, sensed in the king's obduracy an opportunity for the radicals which they had been denied in the drafting of the charge.
21
Prior to the first public session of the trial on 20 January, Cooke was explicitly prevented by the commissioners from pressing that the court infer the king's guilt should he refuse to enter a plea, in order to preempt any danger that the solicitor might try to force the pace of proceedings.61 But every day thereafter Cooke consistently urged the court to use the power it had been given in the 6 January Act to punish the king's contempt with condemnation. On 23 January, he reminded the Lord President of the High Court of Justice, John Bradshaw, that the House of Commons "have declared, That it is notorious, That the matter of the Charge is true, as it is in truth (my Lord) as clear as chrystal, and as the Sun that shines at noon day, which if your Lordship and the Court be not satisfied in, I have notwithstanding, on the People of Englands behalf, several witnesses to produce."62 Bradshaw now warned the king that this was his last chance to plead.63 When once again Charles failed to comply, Bradshaw intimated that the court would now rule the king in contempt. The judges then adjourned to the painted chamber, the Lord President having given notice that the commissioners "intended to meet in Westminster Hall by ten of the clock next morning." The king was returned to Cotton House elsewhere in the palace of Westminster, his temporary lodging at that time, in the clear expectation that the court would sit the next day in order to his sentence.64 However, it does not appear that any formal ruling of contempt was ever made, despite the allusions and inferences of the court's own record.65 On the contrary, upon their reassembling in the painted chamber on 23 January, immediately after the public session in Westminster hall, a majority of commissioners ruled instead that notwithstanding the king's continuing refusal to plead, "which in law amounts to a standing mute and tacite confession of the charge. And notwithstanding the notoriety of the Fact charged [not the notoriety of the king's guilt], the Court would nevertheless (however) examine witnesses for the greater and clearer satisfaction of their owne judgments and consideration the next sitting." In light of this hiatus in proceedings, the king was taken back to more secure lodgings at St James's palace. Bradshaw had been wrong to presume to move proceedings to an abrupt conclusion, and a majority of his colleagues in the court acted assertively to overturn the Lord President's extemporized contumacy ruling. Cooke, moreover, had been absolutely right in his assumption that there were those in the court not satisfied with the Commons' denunciation of the king's guilt, who did not in effect believe his guilt to be "clear as chrystal."66
22
On 24 January, the commissioners prepared to receive witness testimony, recording that the evidence was to be heard "in regard the Kinge hath not pleaded to issue and that this examination was ex abundanti onley, for the further satisfaction of themselves." The previous afternoon, warrants had been sent out to summon witnesses, thirty of whom were now sworn, having obviously been on hand already. The commissioners then appointed a committee to deal with the witnesses, "graunted their summons for summoning further witnesses," and adjourned until 9A.M. the next day.67
23
As already suggested, it is extremely likely that the evidence now presented had been prepared and read over in Court more than once already, at least a week earlier. The king's judges could not possibly have needed to hear it all again. Clearly there was something going on here that was considerably more significant than simply providing the commissioners with "the greater and clearer satisfaction of their owne judgments." But, as the evidence was heard by the committee in camera on 24 January and then repeated before the full High Court of Justice the next day in the same way, it could not have been intended to perform any useful function in the persuasion of hostile public opinion either.68 Nor is it likely that anyone would have been convinced by the collection of eyewitness and hearsay reports on which the charge rested almost entirely. Although they paid vivid testimony to the presence of the king, in arms, often at the head of his armies, usually either shortly before or after, occasionally during some of the principal military episodes of the first war, nothing ever quite diminishes an overall impression that this was rather feeble "proof" for the prosecution of treason, tyranny, and murder charges. Although further research may cast some new light on the connections between some of the key deponents (several appear to hail from the same parts of England and Wales), it seems unlikely to diminish the patently obvious fact that they were, generally speaking, men of lowly, even completely insignificant social standing, many of them former foot soldiers in the royalist armies. Parliamentary commanders and leading civilian politicians could have easily provided far better evidence. Their silence may reflect a reluctance to be identified too closely with a prosecution that many hoped would fail. The colorful wartime recollections of a handful of nonentities that served instead certainly constituted extremely weak evidence indeed. It is hard to dispute the judgment of one hostile observer that "although they terme [the king] Tyrant, Traytor and Murtherer ... the Charges are without any proofe."69 There is every reason to accept the suspicion that the hearing of witnesses was little more than a charade—somebody was playing for time.70 Indeed, there is a strong likelihood that an attempt was being coordinated from somewhere within the High Court of Justice itself to arrange the king's last-minute capitulation.71
24
However, other members of the court—probably the minority bent on "blackening" the king's name—now apparently sought to force the pace by taking advantage of two crucial aspects of the court's provisions for handling the evidence against the king. Just before it adjourned on 24 January the Court had made an order permitting the introduction of evidence additional to that of the thirty deponents waiting in the wings since around the middle of January. Accordingly, on 25 January, further witnesses were indeed sworn, and it seems at least possible that theirs was, in effect, specially commissioned testimony.72 Henry Gooch, or Gouge, of Gray's Inn, testified to the king's deceptions at the treaty of Newport on the Isle of Wight the previous autumn. This evidence in fact spoke to no aspect of the charge whatever, although it helped underline the untrustworthiness for which the king stood indicted on the basis of extensive written evidence. Gooch's was, however, the only evidence for the king's complicity in the troubles of 1648. Supposedly Charles had himself told Gooch whilst at Newport that, although he was "upon a treaty, [and so] would not dishonour himself," he would instruct the Marquis of Hertford, who was then with him, to write to the Prince of Wales to grant commissions for such officers who were prepared to fight for their king's restoration. This too, however, was evidence heard as the court "satt private."73
25
More significantly, Richard Price, a London scrivener, was sprung on the court unannounced after lunch on 25 January, when it would appear that members of the public were in attendance, as very occasionally they were throughout the proceedings that took place in the painted chamber. According to one witness at the trials of the regicides in 1660, "one Price, a scrivener" had acted in a clerical capacity at the court, specifically assisting in the drafting of the charge, which places him within the precincts of the court before the public proceedings began, and at least a week before he was called on to give evidence.74 His testimony related to the so-called Ogle, or Brooke plot of the Independents and City peace party to do a deal with the king in January 1644.75 The common goal was a settlement from which the Scots and their war party allies were excluded, combining the restoration of episcopacy with toleration for the congregations. The only aspect of this testimony which appears in the slightest bit relevant to the charge concerns what Price had been told by the king and the earl of Bristol about the expectation of assistance from Ireland in the winter of 1643–44, but given the well-known existence of the letters of the king's cabinet, placed under the media spotlight years before, just what Price was really up to must remain suspect.76 The intention in calling him could only have been to remind anyone not perfectly well aware of the fact that the only reason the king had stayed so devious for so many years was that there were so many among his subjects who were themselves devious enough to conspire with him against erstwhile friends and allies.
26
There then followed the public presentation of "severall papers and letters of the Kings, under his own hand, and of his own writing, and other papers." On 24 January, Gilbert Millington, and Thomas Chaloner had been ordered "forthwith [to] repaire unto John Browne esq. clerk of the Howse of Peeres for such papers as are in his custody which are conducible for the businesse and service of the Court. And the said Mr. Browne is required to sende the papers hither accordingly." Gardiner noted that Chaloner brought in the papers "the contents of which have not been handed down, but which were probably concerned with the messages sent by the King at various times to invite foreign armies into England," and in fact they comprised thirty of the king's notorious cabinet letters, all of them embarrassingly public knowledge since 1645.77 The Act had authorized the commissioners to receive written evidences, whereas all the evidence strongly suggests that the original, but abortive, Ordinance had not.78 It is hard to imagine that the clause permitting other evidences had been inserted with any other material in mind—i.e., a plan may have been laid in early January by those most keen on humbling the king to confront him if at all possible with the Cabinet letters. Their existence certainly appears to have influenced the court's preparations for the trial. On the 17th, it was noted that the charge had been ordered abbreviated "there being so much high against the King, part under his hand, and some under his hand and Seal manual, and some under his hand and the old great Seale, with some other clear testimonies."79 Yet, the letters really added nothing substantially new to the case against the king, and had certainly never presented an obstacle to the search for a negotiated settlement in the past.
27
On the afternoon of 25 January, having heard the various written testimonies, the court "satt private" once more and passed several orders "preparatory to the sentence against the Kinge, but ordered that they should not be binding finally to conclude the Court." It is evident that a majority of trial commissioners were willing to give the king yet another last chance. Having appointed a committee to draft their judgment on the king, the commissioners then ordered that their absentee colleagues in or near London should be "summoned to attend the service of this Court tomorrow," in the clear expectation of further discussion of the sentence.80 Meeting after the adjournment of the Commons on the 26th, the commissioners subjected the draft sentence to "severall readings, debates and amendments." It was then finally agreed, and order given that it be "ingrossed" in parchment. The king was to be brought back to Westminster the following day formally to receive sentence. However, on 27 January, at a meeting of commissioners in the painted chamber preliminary to the historic fourth and final public session in the great hall, the court agreed that before sentence was handed down the king ought to have another opportunity to accept the jurisdiction of the court. Furthermore "in case the Kinge shall move anything else worth the Courts consideration, the Lord President upon the advice of his two assistants do give order for the Courts withdrawing to advise."81
28
Gardiner thought the votes regarding the sentence were noted as preliminary and not binding "probably" because they were passed by only forty-six commissioners.82 But the Act erecting the High Court had authorized any twenty commissioners to see justice done. More likely, the decision to describe the votes as preliminary to the sentence was a sign of further indecision among the commissioners, a judgment strongly borne out by the obvious reluctance to move to condemnation explicit in their orders immediately prior to the public session on the 27th. That reluctance was at least partially vindicated in the great hall later that day. Gardiner claimed that there were indeed those among the judges who had supported the drafting of a capital sentence because they believed that the king could be "induced by the terror of death to descend from the high position which he had taken," but that they did so through "radical misunderstanding of Charles' character."83 However, having been apprised beforehand that he was about to meet his doom, it is clear that the king did indeed come into the great hall on the 27th with something to offer his judges—namely a joint conference with Lords and Commons. Charles knew exactly what was required from him, but was only willing to meet his judges a little less than halfway. The trial commissioners agreed to consider his request for a conference once the king had assured Bradshaw that his offer was in no sense intended as a further declining of their authority.84 The king was then withdrawn from the bar and the court duly went into recess. To some of the trial commissioners, the king's request clearly looked like a partial acknowledgment of the court's authority, indicating that Charles had finally been persuaded that some show of cooperation might now prove politic to his cause. Consequently, a group among the commissioners argued in favor of permitting him to address both Houses as he had asked.85 But a majority was opposed to such a course as contrary to the principle of Commons supremacy, the constitutional basis on which the trial was conducted—if they had acceded to his request, they would have implicitly cast in doubt their authority to sit in judgment on the king. Still, it was not until maybe an hour after the court went into recess that the king's offer was formally rejected. Even then, almost incredibly, he was asked twice more if he had anything else to say to the court, many of his judges still vainly refusing to believe that he could not be persuaded to capitulate fully and finally.
29
The king stood by his request for a conference and asked only "that this may be entered what I have said."86 Explicitly acknowledging the authority of the court's own record, this could only be interpreted as an implicit acceptance of his judges' jurisdiction. But by then, of course, it was far too late to make any difference—other than perhaps to rub salt in his judges' self-inflicted wounds. They were about to commit to a course of action which could bring down on them nothing but hardship, even terror, perhaps eventually retribution, and Charles taunted them with a last-minute show of deference to their authority, in mockery, conscious or otherwise, of their desperate desire to secure his acknowledgment of the court. Similar reasoning—if that is what it was—may have inspired the king's parting words, from the scaffold in the street before Whitehall three days later, denying that he had started the war, and blaming certain "ill instruments" for the troubles that had arisen between himself and his subjects, hinting at precisely the kind of "evil counsel" defense that the charges against him had practically invited.87
30
Just as it had begun, the drama of the trial of Charles I ended in the conventional manner required by the norms of legal and judicial process, with the condemned man making his peace with one world in preparation for his passage to the next in a speech directed to posterity as much as to contemporaries. But on this extraordinary occasion, the man on the scaffold was the sanctified and legitimate king of England. Adherence to legal and judicial conventions had not persuaded anybody who was not already convinced of the legitimacy of this terrible act that the trial of Charles I had been anything other than a travesty of law and justice. But for many of those unhappy few who had been in the thick of it, the conventions of due process on which the trial of Charles I was patterned had seemed to hold out at least some hope of a nonviolent solution to England's troubles. Although it had required the jettisoning of the negative voice of the House of Lords, the king was put on trial by the authority of a law passed nominally by "Parliament," which at least ensured that proceedings would go ahead under "civilian" auspices, in a court bearing at least some resemblance to a constitutionally and legally valid tribunal. Members of that tribunal did everything possible to restrict the terrible dangers inherent in placing the king on trial for treason, tyranny, and murder. A majority among the trial commissioners ensured that the charge against him was drawn as narrowly as absolutely possible, tailoring it to fit the weakest imaginable evidence for his "crimes." They thus tied the hands of the prosecution counsel in an effort to restrain those more inclined to exact the highest price from Charles for the suffering of the 1640s. But there was really only so much they could do. Their eventual failure lay in failing to persuade Charles to take the last chances he was repeatedly offered in what would turn out to be the last few days of his life. In the course of four separate sessions of the High Court of Justice, the king had been offered at least nine distinct opportunities to plead to the charges against him—a clear indication of just how desperate most of his judges were to avoid king-killing, the action most likely to wreck England's ancient constitution. But the king's obstinate refusal to cooperate with his judges robbed the moderates of the initiative. The Act erecting the High Court of Justice had laid down that the charge against the king be taken pro confesso should he fail to plead, as well as permitting the king's sternest critics to pile on the pressure by introducing additional witness testimony and by giving the cabinet letters captured in 1645 another embarrassing airing. Under such circumstances, the king's judges could eventually no longer resist ruling Charles contumacious, however strongly some of them may have wished to prevent such a course. At the last, the debates which surrounded the condemnation and sentencing of the king marked the serious efforts of men desperate to throw obstacles in the way of a train of events now threatening to career out of control. After his execution, some of his judges invoked divine providence in justification of the regicide, depicting themselves as instruments of God's judgment on "the man of blood," and some of them may even have exulted in so great a fame. Yet equally it was adherence to the conventions of English legal process that had enabled many of the commissioners for the trial of Charles I to see out their awful responsibilities right to the bitter end
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