Recent
Articles
WHAT THE REGICIDES DID FOR US
History Today. September 2005
The proceedings against Charles I in 1649 secured the
constitutional gains of the civil war – the supremacy of parliament, the independence
of judges, individual freedom guaranteed by Magna Carta and the common
law. But other than Cromwell (who later became King in all but name) the
regicides are not to be found on statues or stamps, and their fate is
seldom mourned: in 1660, after a rigged trial at the Old Bailey, their
heads were stuck on poles and their body parts fed to the stray dogs of
Aldgate. British liberty is usually dated from the “glorious revolution” of
1689, although the House of Commons in 1649 declared it: “The
first year of freedom, by God’s blessing restored”.
The King’s trial was, from a modern perspective, the first war
crimes trial of a head of state. The arguments in Westminster Hall resonate
today in the courtrooms at the Hague and even in the Iraqi Special Tribunal – Saddam
Hussein’s opening words to his judge were, in translation, those
of Charles I (“By what power am I called hither… I would know
by what authority, lawful I mean…”). In the centuries before
the rulings against Pinochet and Milosevic, this was a compelling argument.
Charles had the purest form of sovereign immunity: he was a sovereign,
both by hereditary and (as many believed) by divine right. Judges had
always said that the King, as the source of the law, could do no wrong:
Rex is Lex is how they had put it, in the ship-money case.
As for international law, the ink was hardly dry on its modern foundation,
the Treaty of Westphalia (October 1648), which guaranteed immunity to
every prince, however Machiavellian. The best thing about the Treaty of
Westphalia, however, was that England was not a party to it. On January
6th, the purged House of Commons, without waiting for the equivocating
House of Lords, passed an “Act” to establish a High Court
of Justice, “to the end that no chief officer or magistrate
may hereafter presume traitorously or maliciously to imagine or continue
the
enslaving or destroying of the English nation, and expect impunity for
so doing…”
This was the origin of “impunity” in the sense that Kofi
Annan and Amnesty International now use the word, to refer to the freedom
that tyrants should never have to live happily ever after their tyranny.
Parliament’s brief to end impunity was sent to a barrister at Gray’s
Inn, John Cooke, who prosecuted Charles Stuart as “the occasioner,
author and continuer” of the civil wars, “a tyrant, traitor,
murderer and a public and implacable enemy to the commonwealth of England”. “Tyranny” was
an apt description of what today would include crimes against humanity
and war crimes: Cooke used it to describe the conduct of leaders who destroy
law and liberty or who bear command responsibility for the killing of
their own people or the plunder of innocent civilians or the torture of
prisoners of war.
What was truly astonishing about the trial of Charles I was that it
took place at all. In January 1649, a third civil war seemed imminent:
the King’s navy under Prince Rupert and the Prince of Wales would
link with the waxing royalist army under Ormond, whose Irish “confederacy” had
just signed a treaty with the perfidious Dutch. “Prides Purge” had
been the army’s way of declaring a state of national emergency,
and in this atmosphere Charles could, with perfect legality, have been
court-martialled as the enemy commander and immediately executed by firing
squad. The summary justice of the provost martial had been a feature of “turbulent
times” in England since Edward I, and it was visited upon captured
leaders on the principle that “a man who is dead renews no war”.
By opting, instead, for a public trial, the regicides were taking an
enormous risk – they were providing the King with a political platform
as well as an opportunity to contest his guilt (for this very reason,
Churchill strenuously opposed the trial of Nazi leaders at Nuremberg).
But these puritan lawyers and MPs were determined that the King should
have justice – whether he wanted it or not. More justice, indeed,
than ordinary prisoners, who were automatically deemed guilty if like
Charles they refused to plead. Before the King was convicted, however,
the court required the prosecution to prove his guilt. Eye-witnesses testified
that he directed the plunder of towns, supervised the torture of prisoners
and was planning (even while purporting to negotiate a peace treaty at
Newport) a third civil war.
The execution of Charles I was not preordained. Most of those later
dubbed “regicides” did not at first want to kill the King.
John Cooke certainly believed at the outset that the proceedings would
end with some form of reconciliation - a limited constitutional monarchy
or abdication in favour of Henry, the King’s youngest son. But justice
has its own momentum: on the opening day (20th January) the seventy judges
(who sat, in effect, as a jury) were shocked by the defendant’s
arrogance and his insouciant demeanour. He laughed loudly while the court
clerk, Andrew Broughton, read Cooke’s charge which detailed the
carnage of the civil war. Then he sealed his fate by telling his guards
that he cared nothing for casualties on either side – the only death
that haunted him was that of the Earl of Strafford whose execution warrant
he had signed under pressure back in 1641.
This confession was reported to the prosecutor and to the judges and
it influenced their minds: it helped to convince Cooke, for instance,
that “the King must die and monarchy with him” while Lucy
Hutchinson in her memoirs tells how it forced her husband and his fellow
judges to face the fact that the King was incorrigible. The verdict was
not a matter of political expediency or “cruel necessity”:
it was perceived as just and right. Charles Stuart had no remorse, so
he deserved to die not only for crimes against his people, but to save
his people from another brutal war.
Nonetheless, historians rarely have a good word to say about the trial: “Oh
dear, oh dear – shocking, shocking” was all that Cromwell’s
advocate could manage in the BBC’s “Great Britons” series
(so it was little wonder that Oliver came last in the voting). The editor
of the King’s trial in the influential “Famous British Trials” series
was a ranting royalist, but accounts by more distinguished writers are
also littered with errors. C V Wedgwood, for example, in The Trial of
Charles I (1964) describes how the trial opened: “Cooke launched
into the charge with evident enjoyment”. His enjoyment would have
been evident to nobody, since the charge was read (as always) by the court
clerk and not the prosecutor. Antonia Fraser, Richard Cust and Christopher
Hibbet all make the same error about the opening of the trial. S R Gardiner
says the prosecution “threw its case away by relying on legal not
political arguments” – although the whole point of a trial
is that its prosecutor should rely on legal and not political arguments. “Bradshawe’s
refusal to allow the King to speak after his conviction was the final
suggestion of a show trial” says the entry for Charles I in the
DNB, although on the contrary this was customary criminal procedure at
the time: famous last words were reserved for the speech from the gallows.
These misunderstandings may simply underline the wisdom of Edward Coke’s
advice “to the grave and learned writers of histories”, namely
to “meddle not with any point… of the laws of this realm before
they confer with some learned in that profession”. Or it may demonstrate
that no English author, even today, can approach the King’s trial
without some antagonistic sentiment – it just seems so wrong to
have cut off the head of the only English monarch who cared about culture.
But the trial of Charles I was not only precursor to the trial of Louis
XVI (whose lawyers advised him to adopt Charles’ tactic of refusing
to plead, although Louis insisted – it was his big mistake – on
asserting his innocence) but of modern tyrants and torturers who plead
sovereign immunity.
The King’s trial was unique, at the time, in displaying a modicum
of concern – even respect – for the prisoner at the bar, and
an unparalleled patience towards a defendant who left them with no alternative
but to convict. For all the obloquy directed to Cromwell’s “high
courts of injustice” they did set important standards of fairness
that ordinary criminal courts were later to follow. Thus the Duke of Hamilton
and other defendants were permitted to have their points of law argued
by Matthew Hale, the “top silk” of the day, and the last such
court (presided over by regicide John Lisle in 1659) even acquitted a
guilty royalist recruiter (John Mordaunt), for the novel reason that the
prosecution had not proved his guilt beyond reasonable doubt.
The consequence of the King’s trial was a republic – the
Commonwealth of England, declared on 17th March 1649. The House of Commons
was henceforth “the supreme authority of this nation, the representatives
of the people in parliament”. It was to be the only authority – the
House of Lords was abolished as a “useless and dangerous body”.
With the return of many moderate MPs, the Commons became less of a Rump – more
a head and torso – of the Long Parliament, and it promised to dissolve “as
soon as may possibly stand with the safety of the nation” and to
hold elections on all wider franchise.
The regicides envisaged a moderately democratic republic: most of them
supported the army’s preference for extending the franchise to all
men who owned homes, paid poor relief and were not servants: a democracy,
in other words, of independent adult males. Their republicanism was home-grown
and not (as some Cambridge scholars would have it) “neo classical”.
The regicides drew their inspiration from Magna Carta, the common law
and the bible (especially the first book of Samuel) fuelled by the memory
of how Charles had wrongfully imprisoned Sir John Eliot, interfered with
judges in the ship-money case, and of the torture his Star Chamber had
inflicted on protestant martyrs.
The republic of England, argued into existence in 1649 by the sermons
of Hugh Peters (Cromwell’s chaplain), the final speech of John Cooke
(never delivered but widely published) and the elegant sarcasm of John
Milton (The Tenure of Kings and Magistrates) was a construct of justice
and right reason - nobody should be above the law - supported by the biblical
interpretation that kings were graven images – rivals rather than
anointees of God. The regicides did not hark back to Rome or model their
republic on the existing city states of Geneva and Venice. The road to
their new Jerusalem was paved by the demand for justice on the man they
held responsible for the death of one in ten Englishmen: rule by the saints
would begin with rule by the House of Commons.
Come the Restoration, it was the regicides who were offered up as human
sacrifices: 49 were brought to the Old Bailey, where vetted juries were
directed to convict without even bothering to leave the jury box. The
main defendants were John Cooke, who argued that he had a professional
duty to accept the prosecution brief, Hugh Peters, a founder of Harvard,
and Thomas Harrison, Cromwell’s bravest colonel. They were dragged
from Newgate Prison to Charing Cross, to be disembowelled – according
to John Evelyn, in the presence of Charles II. Their courage so astounded
London that the onlookers began to turn sympathetic and the government
dared not bring the other republicans up for sentence. So Clarendon hit
on the idea of having them detained indefinitely on off-shore islands
to which the writ of habeas corpus would not run – a device that
the Bush administration later borrowed for Guantanamo Bay. By 1660, Cromwell,
Bradshawe and Ireton were mouldering in their graves so their corpses
were dug up and hung at Tyburn – a macabre spectacle much enjoyed,
so Pepys tells us, by all the ladies of the court.
The leading republicans were men of principle. John Cooke, for example,
devoted much of his life to making poverty history. At the end of the
civil war he published “The Poor Man’s Case” – a
passionate and prescient plea for social justice and redistribution of
wealth which envisaged a national health service, identified poverty as
a cause of crime and argued for limits to the death sentence and abolition
of imprisonment for debt. Later, as a judge in Ireland, he shocked the
great landlords by his rulings in favour of their tenants. He even urged
fellow barristers to devote 10% of their practice to pro bono work, a
plea that still falls on deaf ears.
British history tends to be told - to children and on television – through
the indulged lives of kings and queens. Yet it was the regicides who first
delivered on many of the ideals the world today most cherishes – the
sovereignty of parliament, the independence of judges, freedom from arbitrary
arrest and detention; the right to silence (established by Bradshawe and
Cooke, acting for “Free-born John” Lilburne in 1646), relative
religious toleration – in short, freedom from tyranny. Authorities
ranging from John Wilkes to Lord Hailsham have pretended that liberty
dates from “the glorious revolution” of 1689, a milksop affair
neither glorious nor revolutionary, which retrieved from the end of the
Stuart kings some of the gains made in 1649. That was our true constitutional
annus mirabilis – and it was achieved by the death of only one man:
a king who could have saved his head with the crown upon it had he been
prepared to share power with parliament.
The English mental block about celebrating the regicides may be understandable,
but it works against the understanding of history. As Cooke explained,
shortly before his execution:
“We are not traitors or murderers or fanatics, but true Christians
and good commonwealthsmen, fixed and constant in that noble principle
of preferring the universality before particularity. We fought for the
public good and would have enfranchised the people and secured the welfare
of the whole groaning creation, if the nation had not more delighted in
servitude than in freedom.”
John Cooke and the King’s judges were tyrannicides, who pushed
this country to where logic (“right reason”) led, where law
(Magna Carta) pointed and where God (the first book of Samuel) approved.
It was a point that no other nation at the time or for another century
would reach: a proto-democratic republic with constitutional safeguards
for civil and religious liberties.
Geoffrey Robertson QC is an appeal judge for the
UN’s war crimes
court in Sierra Leone. The Tyrannicide Brief (Chatto, £20)
is the first biography of John Cooke, the barrister who prosecuted Charles
I
[ Return to article index ]
|
