The Painted Chamber in the Palace of Westminster was a wonder of the thirteenth century. But the faded images were now obscured by tapestries; the medieval world barely intruded into the new on 8 January 1649, when men in military buff coats or plain Puritan suits, sat at trestle tables and debated the fate of their king.
Two days earlier a High Court had been established that would for the first time try a king of England. This was justified on the practical grounds of preventing Charles from raising further ‘commotions, rebellions and invasions’, and on a matter of principle: that the king should have no impunity from the law.
The 135 judges who had been appointed by the House of Commons were mostly army officers and radical MPs. Eighty-three attended this meeting, including the leading General Thomas Fairfax and his subordinate Oliver Cromwell.
Charles was to be charged with having ‘a wicked design totally to subvert the fundamental laws and liberties of this nation, and, in their place, to introduce an arbitrary and tyrannical government’: crimes, it was declared, that deserved ‘exemplary and condign punishment’ – in others words, death.
There was no certainty of outcome. Executing the king risked provoking foreign reprisals, or a popular rising. On the other hand if Charles accepted the legality of the tribunal, he would be accepting that he had no veto over the Commons decisions. He could be returned to the throne subject to parliament, ‘ a sword always over his head..[and] ..grown grey in the documents of misfortune’.
Yet, as Cromwell reportedly warned, if the king refused to plead, then, in order to confirm the supreme power of the Commons, they would have to ‘cut off his head with the crown on it’.
How had it come to this?
The answer can be traced back to the 1550s when Britain had two Catholic queens. To justify their efforts to overthrow them, Protestants had argued that monarchs drew their right to rule from the people who therefore had the right to resist – even to kill – those they judged tyrants, or of the ‘wrong religion’.
Charles was Protestant, but for some be was the wrong kind of Protestant: his love of beauty in worship idolatrous; his attachment to church government by bishops, Popish. During the early years of his reign his leading ministers had stood as surrogates for attacks on the king’s policies. One was murdered, another executed for treason by Act of Parliament. Eventually the mutual mistrust between Charles and his MPs had paved the way to civil war.
But there was still no talk of killing the king. In 1642 parliament claimed it was acting, not against the rightful authority of the crown, but as England’s Highest Court was seizing a form of power of attorney The aim was to ‘rescue’ Charles from evil counselors, who supposedly held him in their power, and the commission for parliament’s leading general called for the ‘perseveration of the king’s person’.
Then the bloodshed began and bitterness grew. In 1645, with the advent of a reformed New Model Army and more aggressive leadership under General Fairfax, the phrase calling for the preservation of Charles’s life had been dropped.
It would have been convenient for parliament if Charles had been killed in battle as his ancestor James IV of Scots had been at Flodden in 1513. But instead Charles’s armies were defeated and he had been imprisoned.
Since 1646 Charles had been playing his enemies against each other, holding out for the best terms he could get under which he would be restored as king. That October the most radical elements in the New Model Army had called for Charles to be tried as a ‘man of blood’. This was a biblical reference ‘the land cannot be cleansed of the blood that is shed therin, but by the blood of the man that shed it’. But there had remained another, more traditional, way to dispose of a fallen monarch: murder
In the Middle-Ages deposed kings had met mysterious deaths in prison, that were ascribed to natural causes. This had encouraged the nation to unite around their successor. It would now get round the difficulties of a trial – for in English law treason remained an action against a king not by one. So in November 1646, when Charles received warnings he was to be assassinated, he had believed them, and had fled captivity. He was soon caught, and his flight was seen as an act of bad faith.
Anger against Charles grew after he encouraged more bloodshed, by supporting a royalist uprising and a Scots invasion in his cause in 1648. At a prayer meeting in Windsor that April the New Model Army had passed a resolution to call ‘Charles Stuart that man of blood to account’. Yet after these royalist and Scots forces were defeated, parliament had continued to negotiate the terms of Charles’s restoration.
On 6 December 1648 the Army had purged the House of Commons of those MPs opposed to a trial. So far the only precedent for the trial of a monarch was that of Charles’s Catholic grandmother Mary, Queen of Scots in 1587. Law, history and fact had been twisted to argue that a Scottish monarch owed the English monarch a duty of obedience so Mary could be found guilty of treason against her Tudor cousin, Elizabeth I.
Now law, history and fact were twisted again.
The remaining rump of MPs declared it treason for an English King, ‘to levy war against Parliament and the kingdom of England’. This was rejected in the Lords, so the Lords were made irrelevant.
On 4 January the Commons had declared, ‘That the People are, under God, the Original of all just Power’ – just as Protestant rebels against Britain’s Catholic queens had claimed in the last century. And the declaration continued with a new assertion: as the peoples’ representatives the Commons MPs held this power in trust, and their acts alone had the force of law.
At a stroke they had broken the traditional constitutional trinity of King, Lords and Commons. But what had replaced it?
The absolute power of the Commons looked frail in a Westminster guarded by the soldiers who had purged its MPs. And even general Fairfax had no answer. One of the purged MPs had reminded him of a biblical warning ‘who can stretch forth his hand against the Lord’s Anointed, and be innocent?’ Until now he had believed Cromwell backed him in seeking an outcome short of Charles’s execution, even if he refused to plead.
Fairfax would never attend a meeting of the judges again. But nor would he publicly oppose the coming trial, for that would risk tearing his beloved New Model Army apart.
The judges who remained after Fairfax’s departure elected a veteran London radical, the Chief Justice of Chester, John Bradshawe, as their Lord President and agreed the trial would take place at Westminster Hall. The space was cleared and a raised dais built for the judges at the southern end of the hall. On it were benches covered in red baize, a raised chair and a desk. Facing these was another chair, covered in red velvet.
It was here that Charles would sit.
On 20 January Charles was escorted under guard out of the back of his lodging next to the palace. He entered Westminster Hall just after 2 pm, through a doorway close to where the judges sat: a slight figure dressed in black silk and with a long, grey beard. He had refused the barber parliament had appointed, fearful the man could one day cut his throat. For Charles his murder still seemed a far more likely fate that a death sentence.
The Sergeant of Arms conducted Charles to the railed off area known as the bar. Charles stood in a tall hat: it remained on his head as a reminder no one there was his equal so legally able to be his judge.
Charles’s gaze was directed at the court. Then he turned round. Behind a wooden partition and an iron railing was a line of guards armed with halberds – pikes with axe blades. Behind them more soldiers lined the walk-way between the spectators who filled the rest of the space. Charles looked up at the far corners of the room where there were galleries accessed from private houses. These were filled with people of high status. Charles looked down, his eyes sweeping the lowlier spectators, before he faced the court once more.
The Act of the ‘Trial of Charles Stuart King of England’ was read out and Charles accused as ‘a Tyrant, traitor, murderer, and a public and implacable enemy to the Commonwealth of England’. The roll call of the judges then began. Many names were greeted by silence – save for that of Fairfax. A masked Lady Fairfax shouted ‘He has more wit than to be here!’.
Bradshawe’s nerve held. He addressed the king: “Charles Stuart, King of England, The Commons of England, being assembled in parliament, being deeply sensible of the calamities that have fallen upon this nation, (which is fixed upon you as the principle author of it), have resolved to make inquisition for blood’. It was for this that they had ‘constituted this High Court of Justice, before which you are brought’.
The neat forty-year-old prosecuting counsel, John Cooke, who stood on Charles’s right, prepared to speak, but Charles tapped him on the shoulder with his cane. ‘Hold’, he said. Cooke moved to continue, and on the third attempt Charles’s cane struck Cooke hard enough to send its silver head crashing to the ground. A hush fell across the room. Charles waited for someone to pick it up. No one bent for their king. So he retrieved it himself.
Charles could now have argued that all he did was in self-defence, but he did not take that bait. “I would know by what power I am called hither?’. He believed the threat of the death sentence was merely an act of brinkmanship in the negotiations for his restoration as king, and that he still had cards to play. And he was right. Another war was now brewing in Ireland that only Charles could prevent. But he did not understand their red line, that first he had to accept their jurisdiction.
So Charles reminded the court he was at the point of concluding treaty negotiations with parliament and, that being the case, he wanted to know, what was their authority?
Bradshawe retorted that Charles was being tried ‘in the name of the people of England, of which you are elected king’. ‘No’ Charles returned, ‘England was never an elected Kingdom’. And if the people were represented by parliament, which was a court, where was parliament, Charles wanted to know? ‘I see no House of Lords here that may constitute a parliament’. ‘That is your apprehension” Bradshawe snapped, ‘we are satisfied who are your judges’.
Matters had not gone as Bradshawe hoped, but on the Monday Bradshawe again asked Charles to plead. Charles again asked what authority was he being tried by? Bradshawe repeated that the judges sat by the authority of the Commons. ‘ ‘The Commons of England was never a Court of Judicature. I would know how they came to be so’? Charles demanded. On the third day Charles was asked to plead once more and once more Charles asked on what authority he was called.
By now pressure to halt the trial was growing. Ministers fulminated from pulpits against the sin of regicide while the Scots, French and Dutch ambassadors made veiled threats about what they might do if he were to be executed. Charles was, after all, a King of Scots, the uncle of the king of France and father in law of the Prince of Orange.
The prosecuting counsel, John Cooke, was as frustrated as Bradshawe. If Charles’s pleaded he could be convicted, leaving the Rump parliament to commute his sentence, subject to his good behavior, in a supreme act of parliamentary sovereignty. But Charles had not. That night a man stopped Cooke on his way home, asking what to expect from the trial at this crucial juncture. Cooke replied bitterly: ‘The king must die and monarchy must die with him’.
In refusing to accept the jurisdiction of the court, Charles had denied that the Commons was the superior power in the kingdom. The cost of keeping Charles alive was now greater than that of his death. He had left them with no choice but to cut off his head.
The next day witness statements were read out in a public session to help justify what was to come. They included tales of war crimes and aggression. By the following day, 26 January, the judges had agreed that Charles would be executed if he refused a last offer to plead. Cromwell judged Charles’s fate Divine Providence.
On the morning of Saturday 27 January, Charles was brought back into the Hall, and Bradshawe, dressed in red robes, reminded the Court that Charles was brought before them on a charge ‘of treason and other high crimes..in the name of the people of England’. Anne Fairfax’s voice rang out from the gallery, ‘ Not half, not a quarter of the people of England. Oliver Cromwell is a traitor’! But the guards in the gallery dragged her out.
Bradshawe then offered Charles a last opportunity to acknowledge the jurisdiction of the court. Charles instead asked ‘that I may be heard in the Painted Chamber before the Lords and Commons’? The hour had come to negotiate – or so Charles hoped. But in asking to see the Lords he was again denying the supremacy of the Commons. The sentence was now handed down.
The prisoner was addressed as one ‘Charles Stuart’, ‘tyrant, traitor, murderer and public enemy’, and, as such, he was to be ‘be put to death by his severing his head from his body’. The court stood. Charles now knew there was to be no negotiation. ‘Will you hear me a word Sir?’ he asked. ‘No Sir’ replied Bradshaw, ‘You are not to be heard after the sentence’.
Charles I spoke his last words on the scaffold. His words echoed the phrase stitched on his standard at the outbreak of civil war: ‘Give Caesar His Due’. A ‘subject and a sovereign were clean different things’, he said. A sovereign alone had a divine right to rule. But he wanted his the people’s ‘liberties and freedom as much as anybody’. These lay in the rule of law, he argued, that he had defended in court at the cost of his life. As such, ‘I am a martyr of the people’, he said.
In reality Charles’s failed kingship had seen more deaths in England as a percentage of population than would die in the trenches of world war one. If he was not a traitor and murderer he was not a martyr either. But he was right on one matter: the Rump parliament and the army had taken an axe to the law. And when his head fell on 10 January 1649, England faced a new tyranny.