The King's Revenge (4 page)

News of his father’s impending trial reached the Prince of Wales, who was by then in Holland, the guest of his sister Mary
and her husband Prince William of Orange. Charles’s younger brother James had already arrived at The Hague, having escaped
England disguised as a girl. Despite the Christmas celebrations, this was a generally gloomy time for the members of the Stuart
family. The atmosphere was lifted for Charles by his first real love affair. After a family breakup, the teenage beauty Lucy
Walter found herself in The Hague where she became the lover of the republican Robert Sidney (younger son of the more famous
Algernon). When the eighteen-year-old prince caught sight of her he was immediately captivated. Lucy jumped beds and launched
into an affair with the prince that soon led to pregnancy. Despite the power of his first big fling, Charles devoted time
to seeking ways to save his father from what increasingly looked like certain doom. Entreaties to the powers in France and
in Holland to intervene came to nothing, as would desperate pleadings to Parliament and the army in England.

On the first day of 1649, the much-reduced ranks of the House of Commons decided that the king should be tried by a High Court
created expressly for that purpose. The following day, the House of Lords rejected the proposal. The Commons now had to decide
how far it should push its authority. After two days, the House declared that it was the supreme authority in the land and
could pass laws without consent of either lords or king. On 6 January 1649, the Commons passed an Act setting up a special
High Court of Justice to try the king.

At Windsor Castle, King Charles was kept well informed of these preparations. Though schooled since childhood in the art of
never letting the regal mask slip, human frailty finally burst through. One of his courtiers wrote:

On 13 January a parliamentary committee decided the king should be tried at Westminster Hall, the scene of many other historic
trials, including those of William Wallace and the gunpowder plotters.

Charles now knew that his fate would shortly rest in the hands of those he could least wish to hold it: a court consisting
of mere subjects who considered themselves his peers.

8 January—27 January 1649

There was only one building in London big enough to stage the king’s trial: Westminster Hall, built at the end of the eleventh
century on the orders of William II. Its glorious hammer-beam roof, commissioned by Richard II in the fourteenth century,
required no internal supporting columns and provided the hall with the largest uninterrupted interior in England, measuring
two hundred and forty feet by nearly seventy. It had been built for great events; Charles’s own coronation banquet had been
held in it, as had those of many kings before. But then, so had many treason trials.

The question facing the trial’s organisers was twofold: how to give it legitimacy and how to make that legitimacy apparent
to the people. The answer to the second part seemed relatively easy – the king should be tried in front of a large panel of
judges and in the presence of the public, so that justice could be seen to be done. To facilitate this, all public sessions
of the trial would be held in Westminster Hall.

The answer to the first part was more difficult. The task of giving the trial lawful authority involved much legal head-scratching.
For the people of England, the trial of their king was the latest in a
drawn-out series of miseries. The country was broken by war, there was widespread hunger and people lived in fear and uncertainty
characterised by the witchcraft trials still held up and down the land.

Not many years had passed since the prosperous early period of Charles’s reign, when the country’s manufacturing had been
growing and its overseas trade thriving. But at the same time, Charles alienated many sections of his people. From 1629 to
1640 he ruled without calling a Parliament and imposed forced loans from the gentry and aristocracy to raise finance. New
customs duties were levied, to the anger of the business classes, who were further infuriated by the selling of trade monopolies
to the highest bidder and – most explosive of all – the king’s expansion of ship money, a tax traditionally paid only by counties
on the coast, to cover all counties in England.
¹
He then alienated Parliament over the balance of power. If that were not enough, he also alienated large sections of the
population by dictating how they should worship.

Once Charles did call a Parliament, in 1640, the struggle became one between a king who longed for a pre-Reformation style
of rule based on monarch and Church, and a Parliament that wished to keep the northern European Reformation firmly on track,
with fewer powers for the king and more powers and religious freedom for the people. While the king longed for a medieval
world of certainty and hierarchy, many of his people were turning in frustration to English political history, the classical
world and the Bible for examples of how the powerful could be held to account. A heady brew of new and old ideas swirled around
mid-seventeenth-century England. Those who were about to put the king on trial felt that somewhere in all of this, legitimacy
could be discovered.

Judges were chosen by the Rump for the High Court of Justice to try the King. The court’s composition was designed to represent
a cross-section of the non-royalist establishment – parliamentarians, lawyers, senior army officers and wealthy businessmen.
As for the actual charge, that would be drawn up once the court was convened.

On 8 January 1649, at two in the afternoon, the High Court of Justice sat for the first time in a preliminary session, without
Charles being present. The purpose was to choose court officials and decide how to announce the trial to the people. The meeting
took place in the Painted Chamber in the Palace of Westminster. The room was a sorry sight. Once it had been the glory of
the Plantagenet kings, its walls brightly painted with coloured images of saints, kings and queens; now the silvery afternoon
light played across paintings dulled by four hundred years of soot and neglect.

The session did not start well. Two-thirds of those appointed by Parliament as judges failed to turn up. In all, 53 out of
153 took their places. The quorum had been set at twenty, so discussions went ahead.

Two clerks were appointed. Little is known of one of them, Andrew Broughton. The other, John Phelps, was to play a crucial
role, arranging a daily shorthand record to supplement the notes taken by the stenographers. It is from these sources that
we have most of what we now know about the conduct of the trial. Phelps was an ambitious young man from Salisbury, educated
at Corpus Christi College, Oxford. Having been an assistant to the senior clerk of the House of Commons, he was an ideal choice.
Next, the court selected four lawyers to conduct the prosecution. The most senior by far, the Lord Chief Justice, feigned
illness and didn’t turn up. Another appointee also failed to show up. The two who agreed to participate were well qualified
for the historic task. Isaac Dorislaus was an eminent Dutch academic who had been the first professor of ancient history at
Cambridge before falling foul of royalist interests and being sacked for lecturing on Tacitus and the difference between legal
and tyrannical monarchy.
²
John Cook was a young lawyer who had made a name for himself in Dublin before becoming a reforming barrister in London. Dorislaus
and Cook would make legal history by drafting the charges against the king. In essence, they would bring the first charges
for war crimes against a head of state.
³

Unless it was in use for official events, Westminster Hall was open every day as a marketplace for lawyers and booksellers
and their clients. On the morning of 9 January, the hall was filled with the usual crowds of barristers, litigants and browsers
at bookstalls. They were stopped in their tracks by a shrill trumpet blast. Through the north door entered six trumpeters
and two companies of cavalry. At their head was the sergeant-at-arms, Edward Dendy, who declared that a special High Court
of Justice was to be convened to try the king.

Dendy then rode to the City, where at the Old Exchange and in Cheapside, he bellowed out the proclamation again. He went on
to St Paul’s churchyard where he informed the usual throngs of booksellers, idlers and pickpockets of the trial, accompanied
this time by no fewer than ten trumpeters.

Following Dendy’s exertions, the court sat again on 10 January. Once more, most of the commissioners failed to appear. The
most noticeable of the absentees this time was Sir Thomas Fairfax, who had attended the first session. Fairfax had made an
extraordinary journey in his thirty-six years, from scion of a Yorkshire landowning family to head of the parliamentary army
in two Civil Wars. Having signed the army remonstrance that named Charles as ‘the capital and grand author of our troubles’
who should be tried for ‘treason, blood and mischief’,
⁴
and gone along with the purge of Parliament, when it came to the trial itself he discovered he was too much of a man of the
old social order to see his king tried for treason.
⁵
As his colleagues prepared for the final act, he silently left the stage.

Fairfax was far from the only judge absent from the Painted Chamber on 10 January. Of the possible 153, only 45 were present.
Among the other absentees was John Bradshaw, a lawyer, who had yet to show up at all. In spite of this, the court elected
him its Lord President and summonsed him to attend. The court was anxious about filling the post; normally it would have been
taken by the Lord Chief Justice, Oliver St John, except that he, too, had declined to serve. Of those who did serve as judges,
the numbers ebbed and
flowed throughout the trial. Some, like Fairfax, appeared only once, while others attended every session.

The court now appointed a committee to consider how the king’s trial would be managed. Its membership included names that
would feature prominently in another treason trial eleven years in the future – John Lisle, Nicholas Love, Gilbert Millington,
Augustine Garland, Harry Marten, Thomas Challoner, Sir John Danvers, Sir Henry Mildmay.

At the next sitting, Bradshaw reluctantly put in an appearance. He asked for time to think about the honour being bestowed.
After a further day of deliberation, he agreed to accept. The court appointed more committees to oversee various aspects of
the trial; one was notable for being entirely composed of army colonels – among them men who would play a large part in all
that was yet to pass: Edmund Ludlow, John Hutchinson, John Carew and Thomas Pride.

In the meantime, the committee that liaised with Dorislaus and Cook over the charges was progressing slowly. A new name was
added to its membership – that of Lieutenant-General Oliver Cromwell. Two days later, the committee had ‘perfected the charge’.
The court ordered that Cook, now promoted to solicitor-general, should ‘on behalf of the people of England, exhibit and bring
into this court a Charge of High Treason and other High Crimes against Charles Stuart, King of England’.
⁶

On the morning of Saturday 20 January, the court looked over the charge one last time. The nub of it was that the king was
guilty of tyranny by waging war against his people for his personal advancement rather than the good of his subjects. Due
to his actions, tens of thousands of his subjects had died in two wars, the first from 1642 to 1646 and the second in 1648.
The charge was inscribed on parchment and signed by Cook. The court then adjourned to Westminster Hall to sit in judgment
on the king of England.

At twelve noon, a procession entered the vast, echoing hall to begin the trial that would ultimately establish the supremacy
of
Parliament over the crown, increase religious freedom with the Toleration Act of 1650 and lead to the independence of the
judiciary in 1652. This was the true revolution that would change the country for ever – not the ‘glorious revolution’ of
1688, which merely restored some of the innovations brought about in 1649. Although generations of writers have sought to
downplay the importance of the event and its participants, the first war crimes trial in history was to provide the basis
of the rights and freedoms we take for granted today.

The procession was led by Edward Dendy, bearing the great mace of the House of Commons. An assistant carried the ceremonial
sword. Then came the Lord President of the Court, John Bradshaw, in ceremonial robes, accompanied by sixty-six other commissioners,
all dressed in black. They were escorted by twenty-one soldiers carrying long-handled ceremonial spears known as partisans.
Making up the procession were the various office-bearers of the court, including the two clerks, Broughton and Phelps.

Bradshaw proceeded to a long stage that had been built for the judges and jury. In the middle was his seat, a grandiose crimson
velvet chair with a desk before it bearing a velvet cushion. As Bradshaw sat he made quite a sight. He wore his armour under
his judicial robes and on his head a ridiculous conical hat covered with beaver skin and lined with steel. It was reported
that his wife had made him wear it as she feared he might face an assassin’s bullet at any moment. In contemporary engravings,
Bradshaw looks like an iron-clad Humpty Dumpty.

Although reluctant, John Bradshaw was bravely doing what he believed was his duty. Bradshaw had been thrust unwillingly into
the public glare – the king himself said he had never heard of him, but then the king was more likely to know the names of
fifteenth-century Venetian painters than those of his own subjects. The second son of a Cheshire landowner, Bradshaw had prospered
as a barrister, making a name for himself by successfully defending John Lilburne, the Leveller and freedom campaigner known
as ‘Freeborn John’. In
an appeal against the charge of publishing unlicensed literature, Bradshaw, aided by John Cook, had made legal history, arguing
the defendant’s right to silence – later to become a central tenet of British criminal trial procedure.
^*

Bradshaw sat in pomp, looking out over the medieval vastness of the hall, now reconfigured for the trial. On either side and
behind him sat his fellow judges in two long rows. At his right hand sat John Lisle, whose experience as a practising judge
would be invaluable on points of procedure. Lisle was also a member of parliament and had chaired the committee that set up
the New Model Army. On Bradshaw’s left sat William Say, another eminent lawyer, who had acted as the court’s president until
Bradshaw agreed to the role. At a table covered by a Turkish carpet sat the two clerks. Before them was an empty space in
which a wooden dock had been erected, stretching across the width of the hall. In the middle of the dock was a large seat
for the accused, leaving plenty of room on either side for guards, attendants and messengers. Behind it was a space for several
hundred soldiers. Finally, two-thirds of the hall was open for the public to attend, behind stout iron rails. On either side,
high wooden galleries reared up, enabling more people to watch from above.

The scabrous newsman Marchamont Nedham published an unflattering picture of the court, including its president and sergeant-at-arms:
‘cloath’d in the scarlet of their rebellious sin, their Garments Roul’d in Blood; Their ermin spotted with Carnation … The
outward face and Vissage of a Court they have in all its proportions, from the Fore-top to the Mouth, from the Beetle-brow’d
President, to the foul-mouth’d Cryer.’
⁷

The sword and mace were laid on the table in front of the clerks, the guards took up places on either side of the hall and
silence was called so that the Act of Parliament that had brought the court into existence could be read. As Phelps stood
to read it, the silence was broken by the roar of crowds of people sweeping in through the doors that had just been opened
at the northern end of the hall.

Against this boisterous background, the members of the court were asked to answer to their names and a roll was taken. When
each name was called, each man stood to acknowledge his presence. As the name of General Thomas Fairfax was read out, a woman
in the public gallery shouted out that he had ‘more wit than to be here’.
⁸