History Today. October 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