As twists and turns in the Brexit debates at Westminster continue, in the third in our series on the momentous events of the winter of 1648-1649 Dr Vivienne Larminie of the House of Commons 1640-1660 section looks at the contentious background to the setting up of judicial proceedings against Charles I, including a unilateral assertion of sovereignty by the Commons
On 8 January 1649, in the Painted Chamber at Westminster, a high court of justice with a purpose unseen previously convened for the first time. Its brief that day was to devise procedures for the trial in Westminster Hall of Charles I, then imprisoned at Windsor Castle. There were precedents for incarcerating monarchs and for ensuring they would never trouble their subjects again, but there was no exact precedent for the judicial process that was contemplated – the public trial of a reigning monarch for his ‘treasonable offences’ against his own people.
The court was the product of manoeuvring inside and outside Parliament in the month after Pride’s Purge on 6 December. Although a trial had been advocated by army agitators and civilian radicals for some time, and indeed had been behind the purge, delivery of their agenda proved fraught with difficulty, even with a House of Commons denuded of their most obvious opponents. The route ahead had been signalled on 20 December, when, as a condition of continuing to sit, MPs had been required to ‘take the dissent’ from [i.e. formally declare their rejection of] the vote of 5 December to continue negotiations with Charles. On 23 December 38 MPs had been named to a committee ‘to consider how to proceed in a way of Justice against the King, and other capital Offenders’ and to ‘present their opinions thereupon to the House with all convenient speed’ [Journal of the House of Commons, vi. 102-3], but some were recognised moderates, and not all nominees turned up. Notable among absentees were lawyers Bulstrode Whitelocke and Sir Thomas Widdrington, custodians of the great seal (which authenticated all official legislation and documentation), but they did participate in ‘a sharp debate’ in the Commons chamber, where ‘the fierce party’ identified Charles as ‘the greatest delinquent, and to be proceeded against in justice’, while others
insisted … that he was not capable of being brought to justice by his subjects, but by God alone; and that having subdued him and his party, there was no need of any thing further, but to secure the Parliament from their enemies rising against them any more: and that might be done without bringing the king to any judicial trial, a thing not read of in any history. [Bulstrode Whitelocke, Memorials of the English Affairs (1732), 363]
In a further frank exchange of views at the Speaker’s house, ‘we consulted about settling the kingdom by the Parliament, and not to leave all to the sword’. Here some
were wholly against any King at all, others were against having the present King, or his eldest, or second son, to be King; others were for the third son the Duke of Gloucester (who was among them [i.e. in their custody], and might be educated as they should appoint) to be made King.
Perhaps predictably, ‘they came after a long debate to no resolution at all’ [Whitelocke, Memorials, 364]. Two days later a visit from the clerk to the 23 December committee demanding their advice sent Whitelocke and Widdrington hot-foot ‘out of town purposely to avoid this business’ [Whitelocke, Memorials, 365].
Exactly what alternative options were on the table over this period, apart from the uncompromising package of trial, conviction, and ‘condign [i.e. deserved] punishment’ or payment in blood offered by the militants, has been debated by historians. So have the actions and motivations of numerous MPs and peers who appeared in the Journals of Commons’ and Lords’ proceedings, and captured the attention of newspaper writers. Surviving evidence is often ambiguous or contradictory or heavily doctored later; many participants prudently avoided leaving a paper trail. We know, for instance, that peers including Philip Herbert, 4th earl of Pembroke, and Basil Feilding, 2nd earl of Denbigh, fruitlessly sought a deal with the king, but not precisely what the deal was, or how far it was pursued. It has been suggested that some, perhaps most, politicians still at Westminster anticipated that Charles would recognise his weakness and accept strict limitations on his rule, and thus that a trial would simply be an exercise in brinkmanship, stopping short of handing out the death penalty. But it is impossible to know for certain how many seriously contemplated this, or for how long.
What is beyond dispute is that the ordinance for the trial of the king passed by the Commons on 1 January 1649 was rejected by the Lords. Or that, on 4 January, the Commons passed the ordinance with amendments, and then asserted their right to take such unilateral action. ‘The People are, under God, the Original of all just Power’, they declared, and ‘the Commons of England, in Parliament assembled, being chosen by, and representing the People, have the Supreme Power in this Nation’. Therefore, ‘whatsoever is enacted, or declared for Law, by the Commons, in Parliament assembled, hath the Force of Law; and all the People of this Nation are concluded thereby, although the Consent and Concurrence of King, or House of Peers, be not had thereunto’ [Journal of the House of Commons vi. 111]. On 6 January the act establishing a court of justice proclaimed it to be
notorious, That Charles Stuart, the now King of England, not content with those many Encroachments which his Predecessors had made upon the People in their Rights and Freedoms, 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.
Among other means to achieve this, he had waged ‘cruel’ and destructive war on his people, during which ‘thousands’ were ‘murdered’. For all his ‘high and treasonable Offences’ he ‘might long since justly have been brought to exemplary and condign Punishment’. At first Parliament had hoped that ‘restraint and imprisonment of his person’ would suffice, but ‘sad experience’ had revealed that this had only encouraged ‘him and his Complices in the continuance of their evil practices, and in raising of new Commotions Rebellions and Invasions’. To prevent ‘the like or greater inconveniences’, and ‘to the end no Chief Officer or Magistrate whatsoever may hereafter presume traiterously and maliciously to imagine or contrive the Enslaving or Destroying of the English Nation, and to expect Impunity for so doing’ a trial was necessary [Acts and Ordinances of the Interregnum, ed. C. H. Firth and R. S. Rait (1911), 1253-5].
It is probable that this act differed in detail from the ordinance of 1 January, and that some of the commissioners for the trial mooted then had since been excluded, on the grounds that they would refuse or had refused to act. Even then, however, of the 135 named on 6 January to preside, only 54 attended the planning meeting on 8 January, and of those, not all went on to participate in the trial itself, or even every day of its preliminaries. Following his flight to the country (and subsequent return) Whitelocke was not named at all. Philip Sydney, Viscount Lisle, a member of the 23 December committee, was appointed a commissioner, but apparently did not act, while his brother Algernon Sydney attended preliminaries in the Painted Chamber on 15 and 19 January, ‘but never in Westminster Hall’ [Sydney Papers, ed. R. W. Blencowe (1825), 54]. As he later explained, having listened ‘to what those would say, who had the directing of that business’, he ‘did positively oppose [Oliver] Cromwell, [John] Bradshawe, and others, who would have the trial go on’, concluding that ‘first the king could be tried by no court; secondly that no man could be tried by that court’ [Sydney Papers, ed. Blencowe, 237]. ‘Importuned’ by friends and hoping to ‘blunt the edge of … furious persons’ and do ‘a great deal of good’, as he later claimed, Robert Wallop attended two days of the trial itself, before giving up and leaving Cromwell ‘and the rest to themselves’ [TNA, SP29/49, f. 102]. Among ‘the rest’ was Edmund Ludlowe, who left a more conspicuous and consistent imprint than Cromwell on the records of these turbulent days at Westminster. That self-described guardian of the public interest considered it his duty to bring ‘the author of so much blood the King to justice, as a tyrant, traytor, murderer, and enemy to the Comonwealth of England’ since ‘the Lord was pleased to strengthen the hands of all that acted therein, who thought it best that as he sinned openly, so he should be tryed, sentenced and executed in the face of the world, and not secretly made away’ [E. Ludlow, A Voyce from the Watch Tower, ed. A. B. Worden (1978), 131].
The upshot of judicial proceedings will be the subject of the next post in this series, due on 30 January.
- C. V. Wedgwood, A King Condemned: The Trial and Execution of Charles I (new edn. With foreword by C. Holmes, 2011)
- C. Holmes, Why was Charles I Executed? (2007)
- S. Kelsey, ‘King Charls His Case : The Intended Prosecution of Charles I’ Journal of Legal History xxxix (2018)
Many contemporary publications relating to events surrounding the trial – both pamphlets and newspapers – are available via the subscription resource Early English Books Online.
Biographies of John Bradshawe, Oliver Cromwell, Philip Herbert, 4th earl of Pembroke, Edmund Ludlowe, Algernon Sydney, Philip Sydney, Viscount Lisle, Robert Wallop, Bulstrode Whitelocke, and Sir Thomas Widdrington are currently being prepared by the House of Commons 1640-1660 section.