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Politics and Procedure in the Trial of Charles I

Published online by Cambridge University Press:  28 October 2011

Sean Kelsey
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Extract

In the autumn and winter of 1648, England descended into a domestic political crisis unparalleled at any time in the country's history before or since. At Newport on the Isle of Wight, representatives from both Houses of Parliament straggled to conclude a treaty with their king that would end years of civil war and restore some semblance of political order. But many Englishmen trembled to contemplate the consequences of negotiated settlement with a man who had caused so much chaos and bloodshed, who had contrived the violent incursion of a Scottish army onto English soil in the summer of 1648, and even now continued to pin his hopes on an invasion of Catholic forces from Ireland. The officers and men of the New Model Army and their radical supporters in the country at large called for an end to negotiations. They also demanded retributive justice on all those, “from the highest to the lowest,” who had almost drowned the nation in innocent blood, lest they seize the opportunity to finish the job. When the army placed the king himself under physical restraint, MPs proceeded regardless to declare themselves satisfied that the search for peaceful settlement ought to continue. The army now purged the House of Commons of the supporters of the Newport treaty. Many of its officers were eager enough to reach some kind of an understanding with the king themselves, but rather than negotiate, they preferred to dictate terms. When the king refused those that the earl of Denbigh purportedly took to him at Windsor Castle late in December 1648, the officers and their allies in the Rump House of Commons prepared to put Charles on trial instead. Justice would at last be done, and it would be seen to be done.

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Articles
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Law and History Review , Volume 22 , Issue 1 , Spring 2004 , pp. 1 - 25
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Copyright © the American Society for Legal History, Inc. 2004

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24. Gardiner, HGCW, 4: 286. According to Thomas Herbert, such ceremonial had continued to be observed even during the trial itself in late January, but his reference to the order of the army officers makes clear that he is mistakenly recalling a decision taken a month earlier. Threnodia Carolina; or. Sir Thomas Herbert's Memoirs,130–33.

25. B Lib, E527(3), Perfect Occurrences, 29 December 1648–5 January 1649, 782.

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27. Bodl., MS Clarendon 34, fo. 72.

28. B Lib, E537(20), Mercurius Pragmaticus, 26 December 1648–9 January 1649, unpaginated; Worcester College, Oxford, Clarke MS XVI, fo. 66v, undated newsletter, reporting passage of the trial Ordinance in the Commons.

29. CJ; 64: 111.

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33. B Lib, E473(14), The Articles and Charge of the Army exhibited in Parliament against the Kings Majesty (printed for “C.W.,” [20 November] 1648) is the earliest report of charges being drawn by the army of which I am aware, but is in essence a report concerning The Remonstrance. Cf. Bodl., MS Clarendon 34, fo. 13, for a report, dated 21 December 1648, that the Council of War was sitting every day to draw a charge. See also E476(19), The Resolution of his Excellency the Lord General Fairfax… ([14 December] 1648), 3; E536(20), The Charge of the Army, and Counsel of War, against the King. With a brief Answer thereunto by some of the Loyall Party ([29 December?] 1649); E536(21), Articles exhibited against the King, and the Charge of the Army against his Majesty; Drawn up by the Generall Councell of Officers, for the speedy executing of impartiall Justice upon His Person; and the time, place, and manner of His Tryall… (printed for John Gilbert, [29 December] 1648); E536(25), His Majesties Declaration concerning the Charge of the Army; And his Resolution to die like a Martyr (1 January 1649); E537(4), The manner of the Deposition of Charles Stewart, King of England, by the Parliament, and Generall Councell of the Armie ([4 January] 1649).

34. B Lib, E536(20), The Charge of the Army and Counsel of War ([29 December] 1648), 3–1; E537(4), The manner of the Deposition of Charles Stewart, King of England ([4 January] 1649), 1–2.

35. OPH, 17: 2–24. Revoked during the summer of 1648, the vote had been renewed, in effect, on 13 December, with the repeal of its revocation, CJ6: 96.

36. B Lib, E536(21), Articles exhibited against the King, and the Charge of the Army, against His Majesty (printed for John Gilbert, [29 December] 1648), 1–2; E536(24), B New-years Gift: presented by Thomas Lord Fairfax, and the General-councel of Officers (printed for R. Smithurst, [1 January] 1649), 8; E536(25), His Majesties Declaration concerning the Charge of the Army; And his Resolution to die like a Martyr (1 January 1649), 4.

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38. A&O, 1: 1253.

39. B Lib, E527(6), Perfect Diurnali, 8–15 January 1649 (printed by F. L. and E. G. for Francis Coles and Laurence Blaicklock, licensed by Gilbert Mabbott), [2237]; E527(9), Perfect Diurnali, 15–22 January 1649 (printed by F. L. and E. G. for Francis Coles and Laurence Blaicklock, licensed by Gilbert Mabbott), 2303; E538(17) 77ie Kingdomes Weekly Intelligencer, 9–16 January 1649 (printed for H. B., licenced by Gilbert Mabbott), 1223; E538(21), The Moderate Intelligencer, 11–18 January 1649 (printed for R. Leybourn, licensed by Gilbert Mabbot), [1848].

40. Muddiman, The Trial of King Charles the First, 198; Bodl., MS Clarendon 34, fo. 17v.

41. Muddiman, The Trial of King Charles the First, 202; cf. John Rushworth, ed., Historical Collections, 2nd edition (1721) 7: 1391–92.

42. B Lib, E527(8), Perfect Occurrences, 12–19 January 1649 (by Henry Walker, printed at London by R. I. for Robert Ibbitson and John Clowes, licensed by Mabbott), 801; E539(6), The Kingdomes Weekly Intelligencer, 16–23 January 1649 (printed for H. B., licensed by Mabbot), 1226.

43. For Cooke's pedigree as propagandist of the radical Independent cause, see Greaves, Richard L. and Zaller, Robert, eds., Biographical Dictionary of British Radicals in the Seventeenth Century, 3 vols. (Brighton, Sussex: Harvester Press, 1983–1984).Google Scholar

44. B Lib, E1047(3), An Exact and Most Imparziali Account of the Indictment, Arraignment, Trial and Judgment (according to Law) of nine and twenty Regicides (licensed by John Berkenhead, printed for Andrew Crook at the Green Dragon in St. Paul's Church-yard, and Edward Powel at the White-Swan in Little Britain, [31 October] 1660), 44.

45. B Lib, E527(8), Perfect Occurrences, 12–19 January 1649 (by Henry Walker, printed at London by R. I. for Robert Ibbitson and John Clowes, licensed by Mabbott), 803; E539(6), The Kingdomes Weekly Intelligencer, 16–23 January 1649 (printed for H. B., licensed by Mabbot), 1227.

46. Muddiman, The Trial of King Charles the First, 202. Cf. B Lib, E538(21), The Moderate Intelligencer, 11–18 January 1649 (printed for R. Leybourn, licensed by Mabbot), [1848]; Rushworth, ed., Historical Collections, 7: 1391–2.

47. B Lib, E527(9), Perfect Diurnali, 15–22 January (printed by F. L. and E. G. for Francis Coles and Laurence Blaicklock; licensed by Mabbott), 2302, [2303]; E538(21), The Moderate Intelligencer, 11–18 January 1649 (printed for R. Leybourn, licensed by Mabbot), [1848].

48. Rushworth, ed., Historical Collections, 7: 1394.

49. B Lib, E1047(3), An Exact and Most Impaniali Account of the Indictment, Arraignment, Trial and Judgment (according to Law) of nine and twenty Regicides (licensed by John Berkenhead, printed for Andrew Crook at the Green Dragon in St. Paul's Church-yard, and Edward Powel at the White-Swan in Little Britain, [31 October] 1660), 44.

50. Bodl., MS Clarendon 34, fos. 72, 73v; B Lib, E527(5), Perfect Occurrences, 5–12 Jan. 1649, [796]; E527(8), Perfect Occurrences, 12–19 Jan. 1649, 802; E527(11), Perfect Occurrences, 18–25 Jan. 1649, 803; E537(38), The Moderate Intelligencer, 4–11 Jan. 1649, [1836]; E538(7), The Queens Majesties Message and Declaration to the Right Honourable the Peers of England…presented by another Embassadour from France, the 9 of this instant, 2; E538(15), The Moderate 9–16 Jan. 1649, [259]; E538(21), The Moderate Intelligencer, 11–18 Jan. 1649, [1848]; E1047(3), An Exact and Most Impaniali Account of the Indictment, Arraignment, Trial and Judgment (according to Law) of nine and twenty Regicides ([31 October] 1660), 173; T. Carte, ed., A Collection of Original Letters and Papers,1:204.

51. B Lib, E473(ll), A Remonstrance of his Excellency Thomas Lord Fairfax, Lord Generall of the Parliaments Forces. And of the Generall Councell of Officers Held at St. Albans the 16. of November, 1648 ([22 Nov.] 1648), 23; OPH, 18: 184.

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53. B Lib, E539(13), The Moderate Intelligencer, 18–25 January 1649 (printed for R. Leybourn, licensed by Mabbott), [1851].

54. B Lib, E537(4), The manner of the Deposition of Charles Stewart, King of England, by the Parliament, and Generall Councell of the Armie ([4 January] 1649), 1–2.

55. John Adamson, “The Frighted Junto: Perceptions of Ireland, and the Last Attempts at Settlement with Charles I,” in The Regicides, ed. Peacey.

56. C76: 100, 111, 112, 118; B Lib 38 (23), A Declaration ofthe Commons of England assembled in Parliament, expressing their Reasons for the Adnulling and Vacating of these ensuing Votes (passed on 15 January, printed by Edward Husband, 18 January 1649), 6 (also reprinted in OPH, 18: 503ff).

57. B Lib, E542(3), John Cooke, King Charls his Case: Or, An Appeal to all Rational Men, Concerning his Tryal at the High Court of Justice. Being for the most part that which was intended to have been delivered at the Bar, if the King had Pleaded to the Charge, and put himself upon a fair Tryal. With an additional Opinion concerning The Death of King James, The loss of Rochel, and, The Blood of Ireland (printed by Peter Cole for Giles Calvert, [? February] 1649).

58. B Lib, E1047(3), An Exact and Most Impartitili Account of the Indictment, Arraignment, Trial and Judgment (according to Law) of nine and twenty Regicides (licensed by John Berkenhead, printed for Andrew Crook at the Green Dragon in St. Paul's Church-yard, and Edward Powel at the White-Swan in Little Britain, [31 October] 1660), 119.

59. The two principal contemporary accounts, Henry Walker's Collections of Notes, and Gilbert Mabbott's Perfect Narrative and its Continuations, both indicate at least nine explicit offers. It is the copy of the court's own official record, which gives the impression of even greater generosity on the part of the trial commissioners. The Journal of the High Court of Justice was not finalized until December 1650, when it was presented to the House of Commons.

60. Kelsey, “The Trial of Charles I.”

61. Muddiman, The Trial of King Charles the First, 207.

62. B Lib, E539(15), Continuation of the Narrative (printed by John Playford, licensed by Gilbert Mabbott, 25 January 1649), 3–4.

63. B Lib, E539(4), Henry Walker, Collections of Notes (printed by Robert Ibbitson, licensed by Theodore Jennings, 23 January 1649), 5.

64. B Lib, E539(13), The Moderate Intelligencer, 18–25 January 1649, [1860]; E539(15), Continuation of the Narrative (printed by John Playford, licensed by Gilbert Mabbott, 25 January 1649), 8.

65. B Lib, E538(28), Perfect Narrative, 13, 15, 16; E538(30), Collections of Notes, 4. The following day, in the painted chamber prior to the day's public proceedings, the trial commissioners certainly referred to the king as [contumacious]. PRO, SP16/517, fo. 22v—omitted from the version of the day's proceedings published by Muddiman, The Trial of King Charles the First, 211. See also the text of the sentence, Muddiman, The Trial of King Charles the First, 128, in which it was remarked that after the king's refusal to plead on 22 January, “his default and contumacie was entred.”

66. Muddiman, The Trial of King Charles the First, 211, emphasis added; Gardiner, HGCW, 4: 305.

67. Muddiman, The Trial of King Charles the First, 212–13.

68. Pace Wedgwood, Trial of Charles I, 166, 169.

69. Bodl., MS Clarendon 37, fo. 6, Salmacius to “Mr. Vicford,” 15 February 1649.

70. Gardiner, HGCW, 4: 306.

71. Kelsey, Sean, “The Death of Charles I,” Historical Journal 45 (2002): 727–54.CrossRefGoogle Scholar

72. Muddiman, The Trial of King Charles the First, 213, 221, 222.

73. Ibid., 221.

74. B Lib, E1047(3), An Exact and Most Impaniali Account of the Indictment, Arraignment, Trial and Judgment (according to Law) of nine and twenty Regicides (licensed by John Berkenhead, printed for Andrew Crook at the Green Dragon in St. Paul's Church-yard, and Edward Powel at the White-Swan in Little Britain, [31 October] 1660), 103–1.

75. For which, see Gardiner, HGCW, 1: 265–67; Gardiner, Bertha Meriton, “A Secret Negociation with Charles the First, 1643–1644,” Camden Miscellany 8 (1883)Google Scholar; Wedgwood, C. V., The King's War, 1641–1647 (London: William Collins Ltd., 1958), 265–68.Google Scholar

76. Muddiman, The Trial of King Charles the First, 222–23.

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79. B Lib, E527(8), Perfect Occurrences, 12–19 January 1649 (by Henry Walker, printed at London by R. I. for Robert Ibbitson and John Clowes, licensed by Mabbott), 803; E539(6), The Kingdomes Weekly Intelligencer, 16–23 January 1649 (printed for H. B., licensed by Mabbot), 1227.

80. Muddiman, The Trial of King Charles the First, 223–24.

81. Ibid., 224–25.

82. HGCW, 4: 307–8. The correct figure for commissioners in attendance is in fact 47.

83. Ibid., 311.

84. Bxc Lib, E540(9), Henry Walker, Collections of Notes (printed by Robert Ibbitson, licensed by Theodore Jennings, 27 January 1649), 3; E540(14), Continuation of the Narrative (printed by John Playford, licensed by Gilbert Mabbott, 29 January 1649), 7.

85. B Lib, Add MS 37344, fo. 251; E527( 13), Perfect Summary, 22–29 January 1649, [8]; A True and Humble Representation of John Downes Esq.; touching the Death of the Late King, so far as he may be concerned therein (1660).

86. B Lib, E527(14), Perfect Occurrences, 26 January–2 Febraary 1649, 815; E541(4), The Moderate Intelligencer, 25 January–1 Febraary 1649, [1864]; E541(17), The Kingdomes Weekly Intelligencer, 30 January–6 February 1649, 1243. All of these were published after 30 January. E540(14), Continuation of the Narrative (printed by John Playford, licensed by Gilbert Mabbott, 29 January 1649); 10 is the only account published before 30 January which claims the king asked that his request for a conference be entered.

87. B Lib, E540(17), King Charles His Speech made upon the Scaffold at Whitehall-Gate, Immediately before his Execution…published by special Authority (1649), 6.

88. For the primacy of the legal and constitutional framework within which the parliamentarian crusade of the 1640s was conducted, see Burgess, Glenn, “Was the English Civil War a War of Religion?” Huntington Library Quarterly 61 (1998): 173–201.CrossRefGoogle Scholar