Source: The English Historical Review, June 2003 v118 i477 p584(34).

Full Text COPYRIGHT 2003 Addison Wesley Longman Higher Education

      THE execution of Charles I was a defining moment in early modern British history. Perhaps for that very reason, the preceding trial has rarely been investigated in any depth. The story of the regicide was fundamental to anglophone political culture well into the nineteenth century. Careful examination of exactly what happened in the course of the King's trial was not pertinent to the illustration of martyrdom or tyrannicide. Marxist historiography tended to make similarly light work of the first modern bourgeois revolution. If the death of Charles I was the inescapable consequence of social and economic change, then the manner by which it came about was of little essential relevance. However famous, the precise details of proceedings at the palace of Westminster during January 1649 remained unfamiliar. (1) Although most modern scholars have commented on the delays which impeded the progress of the high court of justice, few have investigated the events of the trial in any detail, largely on the assumption that regicide had become practically unavoidable once the public sessions got under way. The parti pris ideological positions of the older historiography have given way to an appreciation of the immediate religious and political motives for king-killing. It is the dictates of providence and necessity which now sustain the impression of inevitability which pervades most accounts of the regicide. (2) Important recent contributions to discussion have added a new dimension to this basic template by emphasizing the British context in which Charles I met his doom. (3) He was executed by those amongst his English subjects most alarmed by their King's refusal to bow to the verdict of heaven, coupled with his propensity for collusion with his 'malignant', even his Catholic, subjects in Scotland and Ireland in a bid to revive his ill-fated fortunes. Roundly defeated in arms by the summer of 1646, Charles I and his supporters had not only renewed their struggle with Parliament in the course of 1648, but had even contrived invasion by a Scottish army to that wicked end. If their first defeat had been the judgement of the Lord, then the utter ignominy of the second was a divinely appointed condemnation. To ignore God's providence any longer would be to call down yet more punishments on a people who had suffered enough, especially once it became clear in the autumn of 1648 that the King's Lord Lieutenant in Ireland, the Marquis of Ormonde, continued to seek the military assistance of the confederate Catholics at Kilkenny on his master's behalf. With half the English navy in revolt against Parliament, the prospect for a third civil war seemed to many all too real. The principal authors of the nation's woes, past and present, must pay with their own blood for that of the innocents which polluted the land and cried up to heaven for vengeance, not least for fear of what the future held in store. Salus populi--the good of the people--demanded that justice be done on the tyrant responsible for so much misery and destruction. This conviction was most passionate amongst the men who had sacrificed the most, the soldiers for whom the senseless slaughter of the second civil war had starkly confirmed the belief that many had already reached in advance--that Charles I was none other than 'that man of blood'.

        Historians have made much of the mystical power this Old Testament typology had as the solvent of those moral and political conventions which prevented men from contemplating, let alone practising, regicide. Unquestionably, 'the execution of Charles I is inexplicable without reference to ... the biblical theory of blood-guilt'. (4) After the event, some of the perpetrators of regicide certainly found it helpful on occasion to employ such biblical exegesis in order to explain and justify their actions. Yet that is not in itself sufficient evidence for claiming that king-killing was an inevitable consequence of the espousal of blood-guilt theory. Its articulation placed enormous pressure on those responsible for the nation's fate in 1649. But it did not prescribe one simple, violent solution to the crisis they faced. The concept of 'blood guilt' was a very ambiguous figure of speech, exploited periodically throughout the 1640S as a means to loose the ties of allegiance and obedience which bound king and subjects whenever they became especially restrictive of available political strategies. Similarly, recourse had been made on occasion to reasonably conventional, if perennially contested, ideas about sovereignty, the contractual nature of kingly power and the rule of law. One of the available readings of these principles made it possible to denounce the misrule of Charles I in 1648-9 in terms which rendered it justiciable. (5) But the branding of Charles I either as a 'tyrant' or as a 'man of blood' canno)t be equated uncontroversially with a demand for regicide. (6) Both labels help explain how the King could come to be executed, but they do not in themselves explain why this was so. Their deployment in 1648-9, as throughout the decade, indicated no more (and no less) than a growing willingness on the part of some amongst the King's subjects to make the imaginative mental leap necessary in order to envisage reaching a settlement of England's troubles which did not defer to the personal wishes of their sovereign but forced him instead to face the reality of his military defeat and political weakness. This paper argues that one final attempt was made in January 1649 to force a peaceful settlement on the King, that his trial was no simple prelude to regicide, and that his execution was in fact the unlooked-for outcome of a proceeding undertaken to quite opposite ends.

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        Any attempt at reappraisal of the trial of Charles I faces significant problems, not least the failure of the participants to record their own personal version of events. But there is a substantial body of material from which to reconstruct a more rounded narrative account than has been offered hitherto. If nothing else, closer examination of contemporary reportage surrounding the events of January 1649 yields one obvious fact about the trial which has never been given adequate attention. In many ways it is the intense reluctance of most of the King's judges to condemn Charles to death which is the most striking feature of the proceedings in the great hall at Westminster. It is well known that the King was brought before the high court of justice four times before he was finally sentenced. But it is much less well appreciated that at each appearance he was given two, sometimes three, separate opportunities to plead to the charges against him. On what would prove to be the final day of the trial, 27 January, after at least half a dozen outright rejections in the course of the week, the King's judges not only resolved that they would offer him one last chance to enter his plea, but when he failed to take it, they asked him again--twice. By the time Charles I was finally condemned to die, he had been offered at least nine and perhaps as many as twelve opportunities to cooperate with the high court of justice, depending on which version of events one reads. (7) In the face of such importunity, one might surely wonder whether the King's judges had ever really intended that the trial end in regicide at all.

        During the winter of 1648-9, demands for retributive 'justice' had grown to a crescendo within sections of the army, amongst the 'honest' radicals in the counties and in the city of London. Undoubtedly, many of these demands reflected a passionate desire to see Charles I suffer in his person, and pay with his own blood for the deaths of many thousands of innocents. Understandably, even the most sincere advocate of regicide cloaked his wishes with demands for 'justice', fearing too much the law of treason to demand explicitly the death of the King. Yet 'justice' evidently meant different things to different people, and by no means all of those who petitioned Parliament and the army wished to see the King's blood shed. (8) The reasons for wishing him dead were certainly no more compelling than the reasons for keeping him alive at this critical juncture. The case for king-killing must have been represented somewhere within the inner councils at Westminster and Whitehall at this time, although it is extremely difficult to identify exactly where with any confidence. Broadly speaking, it would appear that it was the case for continuing the reign of Charles I in some radically attenuated form which commended itself most strongly to a clear majority of those who would have to take responsibility for the most monumental decisions which had faced English politicians for decades.

        It was widely argued, not infrequently in the highest civilian and military circles, that the execution of a captive King, although clearly an option, might well prove to be a major miscalculation. (9) Charles I remained indispensable to the unity of the parliamentarian interest, the preservation of legitimate authority in England and the resumption of peaceful relations between all three of his kingdoms. The King had it in his power not only to end the mutiny in the English navy, but also to countermand the negotiations of his Lord Lieutenant with the Catholic rebels in Ireland and to facilitate the restoration of the Protestant interest there. By contrast, the judicial murder of Charles I risked setting the English at each other's throats once more, embroiling the nation in renewed war, possibly on two fronts, whilst simultaneously ceding all political and strategic initiative to the heir to the throne, a king over the water. Beyond reach, with most of the English and Irish fleets at his disposal, Charles II would be dangerously well placed to mount a vigorous claim to his rightful inheritance. From his vast patrimony, the unmarried claimant to the throne of three kingdoms could offer the kind of jointure guaranteed to rouse the interest of ambitious continental dynasts whose restless and underpaid armies had only recently laid down their arms at Westphalia. (10) Few Englishmen were familiar with the precise terms of the new European peace, but most understood enough to appreciate that violence against the King might leave England dangerously isolated at the moment of her greatest vulnerability. (11) Meantime, the continuing conflict between France and Spain ought to create the perfect conditions in which the pretender might expect to obtain some sort of assistance. (12) Dangers, many real, some no doubt over-imagined, crowded in upon 'the frighted junto' at Westminster from every direction. But the key factors determining the course, conduct and outcome of the trial of Charles I originated far closer to home. This paper argues that the strong desire within the high court of justice not to condemn the King to death stemmed in large part from a political struggle for control over a constitutional revolution taking place inside the palace of Westminster itself. The vicissitudes of that revolution also go a very long way towards explaining why Charles I wound up dead nevertheless.

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        On 4 January 1649, the parliamentary trinity at Westminster conventional to the ancient constitution of England was transformed at a stroke when a rump House of Commons declared the sovereignty of the English people and the absolute authority of their elected representatives. (13) The nature of this constitutional revolution was a subject of controversy, even amongst its architects and its principal supporters. The ideas behind it belonged firmly within the ideological mainstream, and had been the staple of parliamentary propagandists for years. (14) Notions of popular sovereignty and the supremacy of the House of Commons had helped Parliament to secure support in the nation at large whilst simultaneously helping to ensure that a parliamentary revolt did not turn into democratic revolution. (15) Yet the logical extension of these ideas lay in the constitutional blueprints under discussion by Levellers, City politicians, army officers and others at Windsor and Whitehall during December 1648 and January 1649, heralding, as some men hoped, religious reformation and social transformation, or as many more feared, religious anarchy and social chaos. (16)

        Some rumpers supported the declaration of popular sovereignty for pragmatic reasons. On 1 January, the House of Lords had rejected a Commons Ordinance for the trial of the King, plans for which ground temporarily to a halt. (17) By annulling their lordships' right of veto over the deliberations of the people's representatives, the rumpers not only ensured that preparations for the trial might go ahead, but they also deflected demands for the closure, even the abolition of the upper House, made in the aftermath of its attempt to obstruct proceedings against the King. (18) For others, however, the rump's declaration of popular sovereignty was evidently just the beginning of a struggle for the wholesale renewal of the English state. A substantial body of rumpers resisted the efforts of their more cautious colleagues who subsequently attempted to reinstate lordly participation in parliamentary business. (19) In a key debate on the revision of legal and judicial forms in line with the 4 January declaration, some MPs urged that writs should run in the name of 'the People', whilst others wished to see legal process issued in the name of either a Lord Chancellor or individual Lords Chief Justice, or else 'the Councell of England', formulations which all implied a preference for the preservation of ancient constitutional forms. (20) The trial of Charles I was integral to the struggle to control and define a constitutional revolution which had begun with the declaration of popular sovereignty. Two days after the declaration, on 6 January 1649, MPs passed the first-ever unicameral Act of Parliament in modern English history, erecting a high court of justice for trying, judging and sentencing 'Charles Stuart, the now king of England'. (21) Based solely on the authority of a rump House of Commons, its claim to represent the sovereign people of England, and its denial of the negative voice of King and Lords, the high court of justice was the embodiment of Commons supremacy. Several of the court's leading members were responsible for the 4 January declaration. However, it seems entirely likely, given the depth of argument over the future of the constitutional arrangements in England at the time, that they were also divided by the prospect of establishing a constitutional settlement which might genuinely enshrine the popular sovereignty on which Commons supremacy was predicated. Consequently, whilst some of the King's judges doubtless saw the forthcoming trial as an opportunity to sweep away much of the old constitutional order, many others saw the proceedings of the high court of justice as a means to shore up aspects of the existing constitutional arrangements.

        An examination of the behaviour of key members of the high court of justice in the weeks shortly before and then during the trial itself demonstrates the nature of the divisions of consitutional principle amongst them. When MPs declared the people sovereign and their representatives supreme, Gilbert Mabbott, the editor of the radical newsbook The Moderate, remarked drily that they 'would never own that stile till now', and that just a month earlier only Henry Marten and seven others had been 'of this minde'. (22) In December, Marten had indeed had a hand in drafting John Lilburne's Agreement of the People. But in the days and weeks which followed the declaration of popular sovereignty, few of his rumper colleagues showed similar enthusiasm for the kind of democratic reform which might have turned the declaration into a reality. On first learning that the Ordinance for the trial of the King had been blocked by the Lords, Sir Henry Mildmay and Thomas Scott had proposed the impeachment of those noblemen opposed to the measure. (23) The two men subsequently took a hand in declaring the Commons supreme, silencing those voices raised in favour of closing or abolishing the Lords, preferring instead to leave the upper House in the hands of those there whom they considered their friends. On 9 January, a few days after the Commons had declared itself supreme, Scott, who unlike Marten had declined the opportunity to help draft the Levellers' Agreement, told the majority in favour of admitting messengers sent from the upper House, along with his fellow trial commissioner William Purefoy. The motion was opposed by Edmund Ludlow and Henry Marten—also members of the high court of justice. (24) During the debate on the matter, another trial commissioner, Lieutenant General Oliver Cromwell, had reportedly admonished his fellow MPs that they were 'madd' if they chose to set their faces against the peers 'at such a time when they had more need to study a neere union with them'. (25) Two of his colleagues in the high court of justice, Cornelius Holland and Henry Ireton, appear to have agreed, telling the votes of MPs who wished that day to send a reply to the upper house by the hands of their lordships' own messengers. On the other hand, two more judges, John Trenchard and John Venn, were in favour of a rather less deferential response. (26)

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        The struggle over the future of the Lords resumed nine days later, on 18 January. By then, MPs. had used their new constitutional primacy to lend support to their fellow revolutionaries in the City of London, who had sent a deputation to Westminster on 15 January led by Robert Tichborne, leader of the Guildhall coup which sealed the supremacy of the Common Council in the government of the metropolis. (27) Tichborne and his fellow radical Independent and 'new merchant', Owen Rowe, represented another constituency within the high court of justice strongly in favour of establishing the absolute sovereignty of the House of Commons. (28) Now, back at Westminster, William Purefoy was this time joined by Herbert Morley in counting the votes in favour of an audacious motion to submit the 4 January declaration for the approval of the upper House. Counting the votes of the majority opposed, Henry Marten was joined by Thomas Lord Grey of Groby, darling of 'the honest party' and preferred candidate for command of the army amongst City radicals early in 1649, Marten's one true friend the previous summer when the Berkshire MP's outrageous military exploits had put him beyond the pale of parliamentary politics. (29)

        Of course, simply by taking part in the proceedings against the King, all active trial commissioners implicitly accepted the supremacy of the rump House of Commons which had erected the high court of justice. But the aforementioned debates and divisions strongly suggest that they did not all interpret the declaration of 4 January in quite the same way. The key to the constitutional revolution lay in the struggle to control the manner in which Commons supremacy would be implemented. It is clear from the proceedings of the House of Commons during January that some trial commissioners would have preferred to establish a formal Commons superiority, rather than a full-blown supremacy. They wished to preserve the House of Lords in some kind of consultative capacity at the very least. Yet others wanted the upper House excluded from the political process, perhaps even abolished outright, in order to make Commons supremacy and popular sovereignty a working reality. (30)

        Contemporaries appear to have understood the nature of this debate, not wholly inaccurately, in terms of a conflict between 'oligarchs' and 'democrats'. (31) These labels--certainly not the protagonists' own--do little or no real justice to the different shades of political principle amongst the King's judges, subsumed beneath shifting factional alignments of similar complexity. But they are a useful way of identifying the principal poles of opinion within the high court of justice during the trial of Charles I, and utility is the only reason for adopting them in the ensuing discussion.

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        The outcome of the trial would have a decisive influence over the trajectory of the constitutional revolution at Westminster. The oligarchs amongst the trial commissioners had attempted to salvage the institutional authority of the peerage as a defence against the dangerously democratic implications of the declaration of popular sovereignty. They also strove throughout the trial to create the conditions necessary in order that Charles I might safely be restored to his throne, for similar reasons. By the end of 1648, a settlement negotiated by personal treaty was completely out of the question. But if the King could be persuaded to cooperate with a tribunal set up on the sole authority of the rump House of Commons then in effect he would have conceded the abolition of his own negative voice, thus removing himself as an obstacle to peaceful settlement. He could then be returned to his throne without too much immediate danger, 'a sword alwayes over his head, [surrounded by] unknowne faces, his family dissipated, and himselfe growne gray in the documents of misfortune'. (32) His military capacity in England and Scotland was long since spent, whilst the Protestants in Ireland of whom he hoped so much would have embraced practically any honourable settlement which might allow them to disengage from their commitments to the Kilkenny Catholics and keep their estates safe. In captivity, Charles I need pose no danger to anyone. If he could be persuaded to accept the role of puppet king, more or less, he might still be permitted the illusion of prerogative authority in at least some respects (the appointment of an acceptable replacement for Lord Lieutenant Ormond, perhaps), in a settlement which would safeguard the basic form of the ancient constitution, if not its spirit.

        Democrats, on the other hand, saw the trial as an opportunity to inaugurate a constitutional new order in which the sovereignty of the people was firmly established through the formal subjection of the monarchy and the House of Lords to the absolute authority of a reformed House of Commons. But few of them, if any at all, actually required, when the trial began on 8 January, either that the King's blood be spilt in anointment of that new order, or that the monarchy be abolished afterwards. There was nothing mutually exclusive about a strong and sincere concern to establish the people in their rights and a belief in preserving the monarchy, even its current incumbent, if only for pragmatic reasons. (33) It was an early modern commonplace, susceptible to controversial overstatement, that the origins of monarchy lay in the nomination of the people. Yet the willingness of the democrats to accept the restoration of Charles I depended entirely on his swift and unqualified acceptance of the constitutional supremacy of the people of England and their representatives in the House of Commons. The King must therefore accept the high court of justice and the authority on which it was based. Nothing less would do. To be sure, it is difficult to rule out entirely the possibility that there were some democrats who simply went along with the trial in the well-founded belief that Charles I would find it all but impossible to concede to his captors. These men may have wished to avoid alienating moderates—not least those within the high court of justice itself- by presenting themselves as reasonable and open to persuasion, in the confident expectation that nevertheless the King would surely die, just as they wished, when he failed to give in. Yet it soon became apparent that these 'cunning irreconcilables' were far from being in control of proceedings. Theirs was a gamble at least as great as any taken by those who sought a peaceful accommodation with Charles I.

        Another small minority amongst the King's judges apparently would have preferred to use the trial as a means to the deposition of Charles I and his replacement by his youngest son, the eight-year-old Duke of Gloucester, who might be bent more readily to the wishes of his parliamentary masters. (34) But there was a keen awareness of the chaos which would probably ensue upon the deposition of the incumbent King and coronation of Henry IX. Englishmen may not have had much experience in the matter of trying their kings at law, but they knew all about depositions, and that in such circumstances even royal 'assent' was never enough to quiet a kingdom. Whether or not he wished it, having surrendered his crown, Richard Plantagenet had remained a focus for discontent even whilst he languished at Pontefract, and the events of 1399 led to nearly a century of often murderous political instability, open warfare and civil strife. (35) As Marchamont Nedham was keen to point out--not for entirely disinterested reasons, it must be said--any attempt to enthrone Gloucester would give rise to violent feuds, 'like those ancient ones betwixt Yorke and Lancaster, which (for many yeares) brought a Deluge of Blood and Desolation upon the Kingdom. Give eare and regard, O yee Commons of England, if their Counsels turne this way, then begins your Misery and Slavery'. (36) Hopes for a Gloucester succession were a long time dying, but in truth they had never had much life in them. Its advocates were plainly clutching at straws. In this, however, they were hardly unique.

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        Most parties within the high court of justice recognized that the incumbent King was easily preferable to any substitute, and in any case far more use to them alive than he was dead. A desire to reach accommodation with him also both reflected, and was justified by a number of important contemporary developments, such as the collapse of opposition to the trial in the House of Lords, a ripening rapprochement with elements within the City Presbyterian ministerial elite, as well as a thaw in relations with representatives of the whiggamore regime in Edinburgh. Potentially fruitful contact was even resumed with the King himself, and with key royalists. (37) All of these developments contributed to a rally in the value of the existing King's political stock, such that when his trial began, there was every reason to believe, or at least to hope that regicide would be its least likely outcome. But the King was only useful if he could be persuaded to accept the authority of the high court of justice. It would be pointless persisting in the implementation of a reasonably broad-based settlement which preserved the King but which the King could not be brought to accept himself. Given the strong likelihood of a forthright show of regal intransigence in the dock, it was therefore essential that the trial commissioners impress upon Charles the fact that they could be reconciled, if necessary, to the prospect of regicide. Unfortunately, the divisions within the high court of justice over the settlement of the constitution fatally weakened its resolve. Able broadly to agree that they would be better off preserving the King if at all possible, the very great majority of trial commissioners were nonetheless completely incapable of agreeing what they were preserving him for. Preparations for the trial, and then the conduct of the proceedings themselves advertised these divisions all too clearly. This was far more temptation than a man of Charles I's character could stand. The success of his attempts during the trial to exploit the indecision within the high court of justice would prove fatal.

        It took the trial commissioners nearly a fortnight to complete all the arrangements for the opening of public proceedings against the King, largely due to disagreements about the trial venue and the charges to be presented against the accused, disagreements which probably reflected aspects of the wider conflict over the settlement of the English constitution. Very broadly speaking, the outcome of the trial would help decide whether the English state would in future approximate more closely either to a democracy or to an oligarchy. Supporters of the respective positions, therefore, vied for control over the preparations for the trial in order to enhance the prospects for a settlement which accorded with their own factional, political and ideological preferences. Behind closed doors, the constitutional conservatives sought to minimize some of the mortal danger which the trial necessarily posed to the King and the ancient constitution, whilst the more radical members of the court battled to ensure that the proceedings against the King posed no threat to the rights of the sovereign people. (38)

        Opinion in the high court of justice clearly appears to have been divided on the ostensibly simple question of where to hold the trial. In late December, it had been rumoured that the army and Independent grandees were attempting to resume private discussion with the King at Windsor Castle, where Charles was being held as a virtual prisoner. Only if these talks failed, so the rumour ran, would the King face public trial. (39) Accordingly, when the King refused to entertain proposals taken to Windsor by the Earl of Denbigh, under cover of a visit to the Earl's brother-in-law, the Duke of Hamilton, preparations for a trial began in earnest. (40) But when the King's judges held their first meeting in the painted chamber at the palace of Westminster on 8 January 1649, some evidently still hoped that proceedings might be transferred to Windsor. One press report dated 8 January claimed that it was 'generally believed' the trial would indeed take place there. The French ambassador Grignon certainly believed that twenty of the King's judges would be selected from the body of the court to go to Windsor, although he was unsure whether they would content themselves with acquainting the King with the terms of the charge to be brought against him or 'take advantage' of the situation some other way. (41) Serious differences of opinion within the court on the subject of the trial venue may be further inferred from the court's arrangements, concluded on 8 January, for a proclamation to be made the following day in Westminster hall announcing the formal commencement of proceedings on lo January, not at Windsor, but in the painted chamber. (42) Of the fifty-five commissioners in attendance on 8 January, only thirty-seven actually signed and sealed the precept authorizing serjeant-at-arms Edward Dendy to make the proclamation. There is no clear-cut evidence for assuming that non-signature of the precept indicates a positive preference for Windsor over Westminster. But whether or not one-third of the active commissioners actually withheld support for, or else actually opposed holding the trial at Westminster, the question clearly remained live, notwithstanding public proclamation in the great hall on 9 January, subsequently repeated, on the order of the House of Commons, at locations in the City of London. (43) The commissioners certainly discussed where to hold the trial on lo January, when the choice between Westminster or Windsor 'seemed to be a businesse of great weight ... and so it was put off,' according to a press report published a week later. (44) On the 12th, an attempt was made within the high court of justice to anticipate the final decision on the venue, with the appointment of a committee responsible for the physical preparation of a court in which to try the King. The committee's members were authorized to 'appointe and Comande such Workemen in and to theire assistance as they shall thinke fitt' in clear anticipation of the formal decision to dismantle the courts of justice in the great hall at Westminster. But that decision was not taken until as late as 13 January, five days after the court first met in the painted chamber. (45) Even then, some further delay appears to have impeded the physical preparation of the great hall, which may not have begun until 16 January. (46)

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        It had taken perhaps as long as a week for the court to reach a firm commitment to hold the trial in the great hall at Westminster, but on the face of it this decision would appear to have been an important victory for the democrats amongst the King's judges. (47) Moving proceedings to Windsor would have greatly enhanced the prospect of an agreement being reached behind closed doors. Brokered, like the Denbigh mission, by the military and civilian grandees, any such settlement would be sure to jeopardize the long-term prospects for full implementation of popular sovereignty, no doubt helping back into the saddle key members of the House of Lords, the Earls of Pembroke and Northumberland, who had led the commissioners sent to the Isle of Wight to talk peace the previous autumn, and who had themselves sponsored Denbigh's efforts in December. (48) At the same time as the commissioners were debating where the trial would take place, some of the King's judges had indeed resumed talks with several of the King's closest advisers, led by the Duke of Richmond, principal privy councillor and the Earl of Northumberland's brother-in-law, who reportedly undertook to guarantee personally an augmented version of the concessions made by the King at Newport. (49)

        Many oligarchs favoured transferring proceedings to Windsor. Cornelius Holland, Northumberland's servant, who sat for Windsor in the Commons, and William Purefoy, consistent advocate of the rights of English noblemen during the January debates on the future of the House of Lords, both failed or perhaps even refused to sign the precept authorizing proclamation of a Westminster trial. So too did three commissioners who were subsequently made responsible for choosing the trial venue, Nicholas Love, Sir John Danvers and Sir Henry Mildmay, all of whom had taken part in declaring the supremacy of the Commons yet were likely to support the preservation in outline of the ancient constitution. (50) Fearing that proceedings might slip from their grasp, democrats battled hard to ensure proceedings were not moved to Windsor. The committee appointed on 12 January to make the physical preparations necessary for the accommodation of the court in the great hall at Westminster included important members of one of the democrats' core constituencies, radical leaders of the London common council Robert Tichborne and Owen Rowe, as well as the almost heretically unorthodox John Fry and the man responsible for overseeing the design and fabrication of the supreme House of Commons' new great seal, Newcastle MP John Blakiston. (51)

        The high court of justice was the very coping stone in the edifice of popular sovereignty. Forcing its proceedings onto a public stage was the best way to prevent any backsliding from that opening position. However, committed democrats were not the only supporters of holding the trial in public, in the great hall at Westminster. Indeed, had they been it is unlikely that the trial would ever have taken place there. Notably, it was reported that Windsor was eventually rejected as a venue for the trial because 'it will divide the Army'. (52) Cromwell himself backed a Westminster trial, perhaps fearing that even the suspicion of underhand dealing at Windsor risked mutiny and disorder in the ranks of the army. His support for a very public trial ought not to be taken as evidence for his conversion to more democratic principles. It was, after all, he who, on 10 January, moved for an adjournment of the high court until the Izth, leaving him free to attend the meeting with Richmond which took place on the 11th. (53)

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        Ensuring that proceedings against the King took place in the great hall at the palace of Westminster had at least minimized the risk to the people's rights posed by such back-stair dealing. But a trial which took place in full view of the watching world did not necessarily preclude a spirited defence of the ancient constitution. What the great hall lacked in privacy it more than made up for in its historic association with the regal heart of the English judicial system. The high court was erected at the south end of the hall, on the very ground occupied by the courts of King's Bench and Chancery, the seat of royal justice. The royal arms appear to have adorned the high court itself, hanging in a shield on the wall behind the trial commissioners for the first three days of the public trial and the device was certainly engraved on the mace of the House of Commons whose presence within the bar of the tribunal dignified it as a regal judicial forum. (54) Seated in a chair with arms with all due deference to his rank and status, when he came to trial 'the now king of England' evidently need not have feared that his rebellious subjects were in the grip of messianic delusions about their providential duty to lay low all the outworks of Babylon.

        A perusal of the charges against him would also prove reassuring, a clear majority of his judges having succeeded in very carefully limiting the extent and scope of the prosecution case against the King. The question of what charges to press had been exciting vigorous debate since December. Some believed Charles should face wide-ranging and very detailed accusations such as complicity in his father's supposed murder, betraying the Huguenots of La Rochelle, imposing taxes and oaths contrary to undertakings given at his coronation, conspiring to reintroduce Catholicism, as well as numerous charges specific to the 1640S, beginning with plotting the bloody rebellion in Ulster. Others preferred to press charges considerably narrower in scope, and a little more general, such as forfeiting his trust by levying war against Parliament, and responsibility for the shedding of blood in England since 1642. (55) Despite the urging of solicitor John Cooke, the court's chief prosecutor, the trial commissioners spent ten days settling the matter in favour of a minimalist approach. (56)

       As eventually agreed, the charge was a damning indictment of the King's 'wicked design', prosecuted by fire and sword, to enslave the English nation to his own tyrannical ends. It also made some very specific allegations concerning key episodes in the English wars from 1642-6 and an on-going plot to renew conflict in Ireland. (57) But it clearly went nowhere near as far as Cooke would have liked. (58) Couched in highly emotive, yet vague and allusive generalities concerning the King's intention to trample law, demolish Parliament and vassalize England, what little force the charge had as an indictment of his actions depended entirely on the few dozen weak and ineffectual witness testimonies provided by a rag-bag miscellany of former royalist foot soldiers and others, to which so-called 'evidence' the charge was tightly fitted. Most of the detailed allegations against the King did nothing more than place him, in arms, at the scene of numerous military engagements in England, around the time of much loss of life. (59)

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        In drafting his version of the charge, John Cooke had attempted to reprise key sections of the declaration issued in February 1648 in justification of the vote of no addresses. (60) As Clarendon later remarked, that declaration had 'found much Opposition in the House of Commons, in respect of the particular Reproaches they had now cast upon the person of the King which they had heretofore ... charged upon the evil Counsellors and Persons about him'. In other words, the charges which were eventually brought against the King, whilst serious in themselves, represented in effect not only a rebuttal of Cooke's prosecuting zeal but also a repudiation of the principle of no addresses, and by implication a reversion to the doctrine of evil counsel. Back in November 1648, the Remonstrance of the Army, often taken as the clarion call to revolution which set in motion the chain of events leading inexorably to regicide, had in fact demanded that the King be put on trial, and that if he could demonstrate that he himself was not guilty of prosecuting war for selfish ends, or else 'that Parliament or any particular party in the Kingdome have raysed or continued the warre for private interests of their owne ... let him then be acquitted in Judgment, and the Guilt and Blame be laid where else it is due.' (61) The charges drafted against the King in January 1649 gave Charles a perfect opportunity to clear his own name and lay the blame for the wars of the 1640s 'where else it is due'. Certainly they begged entirely the question of his personal guilt for actions which could easily be explained on grounds of self-defence, if the King so chose. (62)

        Their weakness suggests that, in reality, the charges were little more than an alluring bait intended to coax the King into swallowing the jurisdiction of the high court of justice by pleading his innocence. Prior to the commencement of public proceedings, the commissioners asked the Commons to arrange a fortnight's adjournment of the legal term to prevent the trial from interfering with the normal business of the central courts in Westminster hall. (63) Clearly they believed, or at least fervently hoped, that the King would enter a plea, and made allowance for plenty of time in which to argue the case. Certainly they had no intention of condemning him out of hand if at first he refused to plead, even though the Act establishing the high court of justice explicitly authorized the trial commissioners to proceed to sentencing the King if he refused to enter a plea.

        Although the evidence is less secure than in the matter of the venue, it seems likely that the conflicting versions of the charge discussed by the commissioners reflected the different constitutional objectives of the parties within the high court of justice. Oligarchs favoured pressing a relatively light charge sheet which would encourage the King to cooperate, enabling them to hoist him back onto his throne as swiftly as decently possible. (64) Democrats would have preferred to mire the King in a wider range of (no less arguable) charges in order to prolong the trial, and to weaken the viability of restoring Charles I to even the merest shadow of his regality. (65) Yet even they did not necessarily believe that the public arraignment of the King was a simple formality preceding his physical destruction. As proceedings finally drew to a close on 27 January, lord president John Bradshaw, whose City radical connections made him a likely supporter of the democratic case, made a point of telling the King that the court had been more than willing to hear whatever he might have had to say 'for totally excusing, or for in part excusing' himself in reply to the charges against him. (66) Shortly after the trial ended, one of Cooke's prosecution team, the Dutch civil lawyer and historian, Isaac Dorislaus, claimed that if the King had simply pleaded to the charges 'his life would probably have been spared, as the trial would have been protracted indefinitely'. (67)

        All parties wanted to secure the King s plea far more than they wanted to demonstrate his guilt, much less punish it with death. But the outcome of the struggle over the terms of the charges against the King is highly likely to have influenced profoundly the subsequent conduct of the trial. The decision to hold the trial at Westminster had given democrats something of a boost. But with the formal adoption of minimal charges on 19 January, they were forced to contemplate the prospect of the King returning to the throne relatively unscathed, jeopardizing the secure establishment of the people's rights. The day before, the House of Lords had finally accepted the legality of the trial by offering to expedite its commencement, and democrat MPs had only narrowly succeeded in resisting an attempt in the Commons to obtain consent to the declaration of 4 January in the upper House. (68) The forces of constitutional conservatism were on the march. Even certain Presbyterian clerics had taken to their London pulpits to preach in support of a trial which preserved the King and his regality. (69) Increasingly, the democrats must have begun to wonder whether they might not be better off cancelling Charles I from the complex algebra of revolution. Once the public sessions of the trial were under way, the slightest show of royal resistance was liable to provoke democrat commissioners into citing the authority of the high court of justice to condemn the King if he refused to enter a plea. On 19 January, the day before public proceedings began, the oligarchs took the precaution of gagging Cooke, preventing him from invoking the contempt clause. They also kept a very close rein on their chairman, John Bradshaw. (70) By the time the public trial began, they had removed any danger of it ending on the first day, but they would not be able to hold the democrats off for long if Charles remained unyielding.

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        Between 20 and 27 January, Charles I was brought four times to the bar of the high court of justice in the great hall at Westminster. On each occasion he brazenly flouted the authority of the trial commissioners, denying their right to sit in judgement on any Englishman, let alone their anointed sovereign. His defiance can hardly be overstated. But it is possible to underestimate the subtlety of the King's performance during the trial, a performance which demonstrated that he was well attuned to the differences amongst his judges. Weighing all aspects of his deportment at the bar of the high court of justice significantly qualifies the narrative conventions about the audacity of a martyr grown careless of his life in the assurance of an eternity in paradise. In their place, we find a King who came to trial like a captive Samson amongst the Philistines, fully aware that he had the power to bring the tottering edifice of Commons supremacy crashing down around their ears, and bold enough to threaten them, subtly yet unmistakably, with destruction and damnation if his terms were not met. (71) In other words, he was calling their bluff. This perilous strategy demanded that he appear as careless of his own life as his judges attempted to appear. But like them, if he could have preserved himself and the kingly office, with honour and in safety, then he would have done so. Any suggestion that Charles I was inherently unable or else absolutely unwilling to cooperate with his captors does not survive careful scrutiny of his behaviour during the trial.

        The King had had plenty of opportunity to take the measure of developments at Westminster as he awaited trial. In the final days before his removal from Windsor on 19 January he had several conferences with leading parliamentarian divines William Dell, Thomas Goodwin and Hugh Peters, knowing them to be 'well verst in State affairs', having 'a good esteeme with the severall interests now acting'. (72) At his coming to the capital, it was also reported that the King had been in contact with an unnamed army officer. (73) His closest constant companion at this time was Thomas Herbert, former parliamentary commissioner with the army, kinsman and client of the Earl of Pembroke. (74) During the trial, Charles entrusted Herbert with messages for the Earl, and also kept in touch with Hugh Peters. (75) Consequently, he almost certainly knew all about the divisions at Westminster caused by the declaration of popular sovereignty. The difficulties arising in the high court of justice over the charges to be preferred against him had been reported in the press. Charles had good grounds to suspect the degree of unity amongst his judges before he came to trial, suspicions which would have deepened considerably on his first appearance in the great hall at Westminster when he was confronted by little more than half of those appointed to sit in judgement upon him.

        Whether or not the King knew about, or merely suspected the existence of doubts and misgivings amongst his judges, his behaviour throughout the public sessions of the trial could have been calculated to expose and exacerbate them. It is a matter of common fame that the King consistently refused to do the commissioners the courtesy of doffing his hat at his coming to and going from the high court of justice. Yet in some news reports, it was claimed that he rose to his feet to address his judges on the first day of the trial, a simple gesture amenable to interpretation as a sign of respectful deference. (76) Similarly, whilst he declined the jurisdiction of the court over and over again, often in the strongest possible terms, the King nevertheless went out of his way just as often to reassure his judges not only that he might answer the charges against him, but that he would answer, if satisfied in the matter of their legal warrant. The King consistently presented himself as a reasonable man prepared to do business in the interests of peace, freedom and the rule of law. Wittingly or otherwise, he was saying almost exactly what a majority of his judges most wanted to hear.

        On 20 January he reportedly called on the court to 'let me know by what Lawfull Authority I am seated here, and I will answer it ... Let me see a legal Authority warranted by the Word of God, the Scriptures, or warranted by the Constitution of the Kingdom, and I will answer'. (77) In another report, the King said that 'if he were satisfied that the authority of the Court [was] lawfull he would give his answer'. (78) On 23 January the King again said that he 'ought' not to answer the charge 'till I doe know the legality of the Court', insisting that 'if I may know how to acquaint my people of England ... with this tryall, and know by what Law it is to be, and be satisfied with the lawfulness of this Court, and how to call it, I shall answer.' (79)

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        Several reports claimed explicitly that the King insisted on his right to answer to none but God, asserting in other words the divine right of kings. (80) But in most reports of the trial proceedings, far greater currency was given to the King's repeated undertaking to cooperate with the court once he was persuaded of its authority in law. (81) As the trustee of his subjects' liberties, the principal guarantor of their legal rights, he was duty-bound to resist any attempt to usurp constitutional propriety or subvert the fundamental laws of England, 'for if Power without Law may make Lawes, may alter the fundamentall Lawes of the Kingdome, I do not know what subject he is in England, that can be sure of his life or any thing that he calls his owne'. (82)

        In one account, the King reportedly went so far as to urge that he was entrusted with his authority not just by God but also by 'the People of England'. (83) By 23 January, he was declaring himself willing to 'satisfie' the people 'that I have done nothing against that Trust that hath been committed to me', appearing to accept in principle nothing less than full popular accountability, albeit refusing still to do it 'in this way', i.e. before the high court of justice, because to do so would be 'against their priviledges'. (84) Charles was deliberately setting out to cast himself as the people's king, a hereditary monarch limited by law, in repudiation of any former claim to divine right or the inscrutability of prerogative authority and the arcana imperii. (85) Had he ever held to the 'absolutist' notion that kings were not made for their subjects' ease, but the other way around, he had abandoned it by the time he came to trial.

        Doubtless many supporters of popular sovereignty were unimpressed, and entirely unpersuaded by the King's solicitude for the rule of law and popular right, whilst his defiant insistence that 'I do stand more for the liberty of my people than any that come to be my pretended judges' evidently caused some of them immense irritation. (86) Inflammatory comparisons between the 'authority' of his so-called judges and that of 'Theeves and Robbers by the highway' probably did not help matters, either. The patience of that minority most committed to asserting the rights of the sovereign people wore very thin very fast, and their insistence became ever more urgent that the King either acknowledge their authority or face the consequences.

        On 20 January, after the King's refusal to plead, Bradshaw, denied the opportunity to rule the King in contempt, warned him instead that his 'final' answer would be expected when he came before the court again on the following Monday. (87) In the preliminary closed session of the high court of justice on Monday 22 January, it was recorded that the commissioners had identified 'what the King aymed at (viz.) to bring in question the jurisdiction of the Court and the authority whereby they satt ... And through their sides intended to wounde (if hee might be permitted) the supreame authority of the Commons assembled in Parliam[en]t', and Bradshaw was instructed to prevent the King from disputing the authority of the court in this way. Cooke, for his part, was now free to urge that the court proceed to condemn the King as contumacious, which he duly did when opening his prosecution that day. When the King again refused to plead, Bradshaw intimated an intention that the King's contempt be recorded because 'no answer will be given to the charge', and warned him that the next time he was asked might well be the last. (88) On 23 January, Bradshaw told Charles that it was not for him 'nor any other man to dispute the Jurisdiction of the supream and highest authority of England, from which there is no Appeal, and touching which there must be no dispute'. (89) Notably, in the House of Commons that morning, it had been resolved that in future, all legal writs and proceedings would go 'Authoritate Parliamenti'--the movement to administer justice in the name of 'the People' had been defeated, a notable victory for defenders of the traditional tripartite constitution. (90) That day, the commissioners had also received a communication brought by Peters in the capacity of 'Messenger from the King', an interesting development which appears to have heralded renewed contacts between Charles and the oligarch grandees. (91) With the democrat position appearing to weaken, the Lord President now attempted more forcefully to bring proceedings in the great hall to a close, giving order that the clerks to the high court record the King's default preliminary to his condemnation on grounds of contempt. The court adjourned until ten o'clock the following morning, in clear expectation that the King would then receive sentence. (92)

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        But if many amongst his judges must have snorted with derision to hear the King describe himself as defender of the people's rights, the essence of his claims probably struck a chord with some. Certainly the stand he took was no mere show. Had Charles never actually intended to cooperate with a legal tribunal he would not have said so often that he would. As long as Charles I lived, he hoped. Still hoping perhaps to take some advantage of any Irish army the Marquis of Ormonde might be able to furnish, the King fervently wished to survive his trial. Yet he needed to walk away with at least a little kingly freedom. He could not therefore cooperate fully with the rump Commons, as he consistently asserted almost to the last. However, that proceedings did not come to a swifter conclusion in the face of democrat impatience had a lot to do with the fact that the King also steadfastly appealed to the authority of a properly constituted parliament as a grounds for rejecting the jurisdiction of the court. The King consistently stood firm by the privileges of his peers. The preservation of their institutional authority may have struck him as a sound basis on which to salvage sufficient regal authority to give him a fresh stake at the gaming table. The rights of the peerage figured just as large in the King's defiance of the court as did the rights of the people, and his purposeful exploitation of this issue may demonstrate just how conscious he was of its power to unsettle the court's fragile unity.

        The King's very appearance at his trial was itself a clear statement of the deep ties of honour, intimacy and duty which bound him and his peers together. (93) Having come to Westminster almost directly from Windsor Castle, spiritual home of the order of the garter, the King attended the high court of justice wearing his garter regalia, including his George, blue ribbon and star. (94) If in his speech Charles affected to be 'the People's king', in his dress he deliberately adopted the mantle of the first amongst equals, the premier aristocrat of the realm of England. The King had once ordered that all knights of the order wear their regalia at all times. (95) As recently as the second week in January, the Earl of Pembroke, the most important of the parliamentarian peers to seek a reconciliation of the two Houses on the question of the trial, had been described as 'the Parliaments head Pander, who ushers all their Rebellious Enterprizes with his George, and graces all their Treasons with his blew Ribbon, and star'. (96) The Earl had been castellan at Windsor since the previous July. On 18 January, it was Pembroke who was charged by the rump House of Lords with finding ways to expedite the proceedings which were shortly to begin in the great hall by helping to arrange an adjournment of the legal term. It was rumoured that when he first came to his trial on 20 January the King was carried from St. James' as far as Whitehall in a sedan chair belonging to Pembroke. (97) The King's contact with Pembroke in January, mediated by Thomas Herbert, may have inspired him to take a stand on the authority of the upper House. (98) Whatever the reason, the House of Lords became Charles I's last ditch.

        On 20 January, Charles denied the parliamentary authority of the court, saying 'that he saw none of his Lords there' 'that may constitute a Parliament'. (99) One newsbook reported that the King was seated when he began his address to the court, but then rose to his feet as he remarked the absence of his Lords. (100) In his opening speech the King also made pointed reference to his negotiations with both Houses conducted at Newport 'with as much publique faith as its possible to be had of any people in the world. I treated there with a number of Honorable Lords and Gentlemen, and treated honestly and uprightly, [and] I cannot say but they did very nobly with me, [and] we were upon a conclusion of the Treaty'. (101) On 22 January, the King again protested that 'there were none of the House of Lords present'. (102) In his Reasons for declining the court, which he was prevented from reading out that day and which subsequently appeared in print, the King remarked that it would surely appear 'strange ... to any that have heard speak of the Lawes of England' that the Commons should 'pretend to make Lawes without King or Lords-House'. He also asserted 'the Priviledges of both Houses' and the 'Laws and Liberties' of the kingdom, all of which were violated by the high court ofjustice because 'the higher House is totally excluded'. (103)

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        The logical conclusion of the commissioners' declared insistence on Commons supremacy should have been outright and immediate condemnation of the King's attempt to appeal over their heads in this way. That the commissioners made no such response presumably reflects the fact that many shared the King's misgivings about the absence of the Lords, as well as his concerns for the preservation of the known law. Instead, a majority of commissioners did everything in their power to resist the growing pressure to move to condemnation. To keep alive their hopes that what appeared to be the fast-narrowing gap between the King and themselves might finally be dosed, the emphasis on trying the King's guilt or innocence was subtly dropped, and the King repeatedly invited either to plead to the charges or else acknowledge the court in some other, unspecified manner. The King had successfully exposed, and then turned to his advantage, the division and indecision within the high court of justice.

        Despite his obduracy, elements within the high court of justice were dearly keen to enhance the impression of the King's tractability--that they were dealing with a man from whom concessions might yet be extracted. Henry Walker, in-house publicist to the military and civilian grandees, responsible for one of the serial publications reporting the proceedings, was amongst the first to claim that the King had risen to his feet to address the court on the first day of the trial. (104) To sustain them in their slender hopes of a peaceful accommodation with the King, on 21 January, a Sunday, the trial commissioners met in the royal chapel at the palace of Whitehall to hear sermons preached by divines closest to the parliamentarian constitutional conservatives. Hugh Peters, who had explored the possibilities for a rapprochement between King and Parliament in the last few days before the trial began and who remained in contact with Charles throughout proceedings, now preached on the theme of binding kings in chains and noblemen in fetters of iron. Peters found in Psalm 149 the perfect encapsulation of the objectives of a limited, oligarchic revolution very much in keeping with the maxim, attributed to him back in October 1648, that 'it is not vox, but salus populi that is the supreme law'. (105)

        The sermons appear to have persuaded a majority of commissioners to go on searching for a way round the King's stubborn refusal to plead to the charges against him. On Monday 22 January, in defence of the principle of Commons supremacy, Bradshaw was instructed to prevent the King from disputing the authority of the court. But the trial commissioners also ordered that the lord president require that the King either answer the charge or otherwise 'acknowledg', or 'own' the court, and insisted that the King should be told that the question of their jurisdiction was a 'debate [of which] they had not proper cognisance'. Some of them, though they might have accepted the practicalities of Commons supremacy, clearly felt that it was not necessarily much of a basis on which to demand a plea, and evidently believed that the so-called 'debate' regarding their own jurisdiction was not necessarily closed. (106) On 23 January, the commissioners resolved to give the King another opportunity to plead 'to trye him once more, whether he will owne the Court', despite his sustained contempt and the grounds it gave them to proceed against him. (107) In the great hall that day Cooke urged that the House of Commons, 'the supreame Authority and Jurisdiction of the Kingdom ... have declared, That it is notorious, That the matter of the Charge is true, as it is in truth (my Lord) as clear as chrystal, and as the Sun that shines at noon day, which if your Lordship and the Court be not satisfied in, I have notwithstanding, on the People of Englands behalf, several witnesses to produce'. (108) Bradshaw urged the King to 'give obedience to the Court, and acknowledge the House in them'. (109) He then further explained to the King that 'having such Charge of so high a Nature against you ... your Work was, that you ought to acknowledge the jurisdiction of the Court, and to answer to your Charge'. (110) Shortly afterwards, at the end of a session in which Charles once again disputed the authority of his judges, the Lord President adjourned the court until the following morning, when it was expected that judgement would be passed and sentence handed down. Evidently Bradshaw was not personally in need of any persuasion as to the King's guilt. But meeting in the painted chamber immediately afterwards, a majority of commissioners ruled that notwithstanding the King's continuing refusal to plead, 'which in law amounts to a standing mute and tacite confession of the charge. And notwithstanding the notoriety of the Fact charged'--not, it will be noticed, the notoriety of the King's guilt-'the Court would nevertheless (however) examine witnesses for the greater and clearer satisfaction of their owne judgments and consideration the next sitting'. Cooke had been absolutely right in his assumption that there were those in the court not satisfied with the Commons' denunciation of the King's guilt, who did not in effect believe his 'guilt' to be 'clear as chrystal'. (111)

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        There ensued two days' pointless discussion of the feeble 'evidence' against the King on which the details of the prosecution case were based—evidence which, incidentally, the commissioners had already heard at least twice before in the course of drawing the charge against the King, and which they now heard once more in camera, hardly suggesting a concerted effort to sway public opinion. Consideration was also given to a selection of letters from the King's cabinet captured at Naseby more than three years previously. But they added nothing substantially new to the case against the King, and their existence had never presented an obstacle to the search for a negotiated settlement in the past. On 25 January the commissioners passed resolutions for the King's condemnation, which would 'extend unto death' (but which clearly at that stage need not have done) having, however, given order that their decisions as to the sentence ought not to be considered binding on the court. (112) The sentence was further debated and amended the following day. On 27 January, capital sentence was finally accepted but most trial commissioners were still clearly eager to avoid handing down a judgement which would bring the King and the ancient constitution a step closer to oblivion. Bradshaw was instructed that morning to give the King yet another opportunity to plead to the charges against him. Furthermore, the lord president was placed under strict instruction that in case the King offered 'anything else worth the Courts consideration', he was to give order for an adjournment 'upon the advice of his two assistants', John Lisle and William Say. (113)

        That afternoon, for at least the seventh time, Bradshaw once more demanded the King's answer. For the seventh time, the King refused, requesting instead a conference with Lords and Commons. (114) Champion of Commons supremacy, the lord president could not possibly allow the King to treat with both Houses of Parliament in flagrant disregard for the sovereign authority of one of them. Bradshaw told the King that his request was 'a further declining of the Authority of this Court', and it was clear that 'now again he appealed to another jurisdiction'. (115) But he was then reminded of his obligation to adjourn the court to allow the commissioners to discuss whatever the King might have to say. (116) In conference in the court of wards, those amongst the judges who argued that the King ought to be allowed to address the two Houses were clearly in a minority--albeit obviously only a fairly narrow one, as discussion lasted anywhere between thirty minutes and an hour. (117) Having resolved at last to reject the King's request, the court then reconvened in the great hall.

        As remarked at the outset, before finally moving to condemnation, Bradshaw now asked the King not once but twice more whether he had anything else to say. Unsurprisingly, the King stuck to his guns, offering nothing more than a repetition of his request for a conference. Disastrously, and paradoxically, the positively craven importunity of the King's judges throughout the trial proceedings had secured Charles in his final delusion--that even his most rebellious subjects could never actually bring themselves to raise their hand against their anointed king. But the reality was that a third civil war still loomed and the commissioners had failed to secure the King's acknowledgment of their jurisdiction. Charles had effectively demanded the abandonment of Commons supremacy as the cost of peaceful accommodation. Compliance would have instantly collapsed the authority of the court. But that is not all. It would have undermined at a stroke the sweeping redistribution of power and authority at Westminster attendant upon the revolution of 4 January, which had been followed by the widespread reorganization of the parliamentarian administrative machinery. Two days after the declaration of Commons supremacy, shortly before they passed the Act erecting a High Court of Justice, MPs had remodelled the Derby House Committee, the Goldsmiths' Hall Committee, the Army Committee and several others, sharing out eighty-nine separate appointments to key executive bodies amongst fifty of their number. (118)

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        Moreover, compliance with the King's request, and the effective collapse of the trial would have sent shock-waves of potentially catastrophic proportions all through the army, the City and the 'honest' radical constituencies in the country at large, groups which had been petitioning for 'justice' in some form or other for months by the time the trial had opened, several of whom (such as the London common council radicals) depended on Commons supremacy as the basis for their recent accession to power and influence, (119) In the court of wards, when nevertheless some of the trial commissioners argued that the King be permitted to address the two Houses, Cromwell menacingly warned one of them, John Downes, that he would hold him personally responsible for the army mutiny and 'the cutting of throats' which would ensue if the King were indulged any further. (120) Giving evidence whilst on trial for his life, Downes had good reason to exaggerate the pressure he was under to accept the King's condemnation. But there can be no doubt that in January 1649 there had been enormous pressure, too, on the high court of justice. The organizers of the trial needed an outcome their supporters would accept--the King's acknowledgement of Commons supremacy and the implicit abdication of his negative voice would have been a start; so much the better if he could also be persuaded to ensure that 'the Guilt and Blame' for the wars might 'be laid where else it is due', thus laying grounds for the destruction of those outright enemies and factional rivals which Independents and the honest party tended to regard as worse incendiaries than many royalists. In the circumstances, having failed to secure even his tacit acknowledgment of the 4 January revolution, the King's judges would have found it extremely difficult to portray his acquittal as consistent with the requirements of 'justice', however defined. The pressure to condemn the King became irresistible once it became clear that the price of his life was even greater than the cost of killing him. At the last, Charles I was not really pushed, neither can he be said to have jumped--slipping from his captors' uncertain grasp, Charles I was effectively dropped.

        The execution of Charles I was an extraordinarily dramatic event. The  conclusion of many years of bloody civil war, justified by reference to ancient legal traditions surrounding the contractual relationship between kings and subjects, it is easy to overlook the fact that nevertheless regicide occurred at the culmination of a complex chain of very short-term events. It is also tempting to ignore the genuine unpredictability of the proceedings which took place in the painted chamber and the great hall at Westminster in January 1649, and to underestimate the adventitious, even accidental nature of the trial's outcome. But as a closer reading of the course and conduct of the trial hopefully demonstrates, these are temptations which ought to be resisted. One contemporary suggested to Charles II, shortly after his return to England, that his father's death had been the result of 'mistakes and misunderstandings'. (121) In several respects, this is not an entirely unreasonable hypothesis, evincing as it does something of the breakdown in communications which brought about the trial's bloody denouement.

       Conventionally, the King's performance at the bar is described as the most confident and sure-footed of his regal career, his heroic words unhindered by the stutter which had inspired his life-long dread of public oration. Yet in the end it may conceivably have been no more than his choice of words and the presentation of his case which betrayed him. The King had known all along exactly what was expected of him. In one report he remarked on 20 January that it would be sinful 'to lay downe that power wherewith he was intrusted'. (122) But rather than refuse immovably to have any dealings with such unreasonable proceedings, he fully appreciated exactly what his capitulation was worth to his enemies, and remained determined to extract some kind of quid pro quo, as his repeated insistence on the participation of the House of Lords made perfectly clear. In the meantime, he indicated a qualified willingness to cooperate by meeting his judges just a little less than half way. On 22 January he attempted to enter a demurrer to the court's jurisdiction—not exactly an acknowledgment, quite the reverse in fact, yet an implicit acceptance that the entity before which he was arraigned was somehow something more than just an assembly of men, much less a gang of 'Theeves and Robbers by the High-way'. (123) He was, he said, as familiar with the legal forms as any gentleman of England, and he knew his rights in respect of judicial process--which, in a back-handed kind of way, was really a very generous thing to say about the tribunal before which he was arraigned and the process to which he found himself subjected, both of which were entirely without precedent in English law. But the effect, which would only ever have been subtle at best, appears to have been ruined utterly when the King insisted on reading out the text of his Reasons for declining the jurisdiction of the court. (124) Notably, in Henry Walker's account of this crucial passage of the trial, it was reported that Bradshaw said to the King that although 'neither he nor any other would be permitted there to dispute the authority of the Court', nevertheless 'he [the King] had now answered something, that he [Bradshaw] could take notice of', evidently an attempt to wring as much as possible from the King's cautious tactical advance.

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        The closest the court ever got to actually receiving an acknowledgement came on the 27th, when the King insisted that in asking for a conference with Lords and Commons he did not decline the jurisdiction of the court. There was nothing in this attempt at syntactical sleight of hand that could be interpreted as his explicit, nor even his implicit endorsement of constitutional revolution--nothing, in other words, to justify further delay. It was not conceivable that a court which had repeatedly insisted that its authority derived directly from a supreme House of Commons might unilaterally invite the Lords to a conference with the King, as he requested on 27 January. But as is clear from their preliminary orders to Bradshaw to hear the King out, whatever he had to say, a majority of the King's judges would far rather have saved him than sentence him to death before they went into the final session of the trial that day. One might even conjecture that, had he suggested a conference with Parliament, then since it would have been left to the commissioners to decide what that actually meant in the wake of the declaration of Commons supremacy, and whether their lordships ought to be invited, a majority of trial commissioners may well have been able to deliver just such a conference. If, as was later suggested, the offer which the King wished to lay before peers and Commons was his abdication in favour of his son, then it seems highly unlikely that any such meeting could have ended quite as the King might have wished. (125) Few would have felt much confidence in the deposition of Charles I, from which many more would have expected little better than renewed civil war. But without doubt, when he remained intransigent in his insistence on a meeting with Lords and Commons, Charles I finally narrowed the options available to his judges to an irreducible minimum. Whatever it was, there was no way his proposal could be heard in the way he wished. The court now proceeded to condemnation because, finally, there was no alternative. After the King was dead, it was claimed that on the 27th, as Bradshaw moved to the close of the lengthy speech with which he prefaced the sentence of death, Charles, panicking perhaps as finally he realized the mortal danger he was now in, asked 'that you would heare me concerning those great imputations that you have laid to my charge'. Bradshaw regretted that it was simply no longer proper that the court should heed the King. He could only resignedly remind Charles that 'the truth is, all along from the first time you were pleased to disavow and disown us, the Court needed not to have heard you one word ... were it proper for us to doe we should heare you freely, and we should not have declined to heare you at large, what you could have said or proved on your behalfe'. But after perhaps a dozen opportunities to put in a plea, the court's patience was finally exhausted. The time for hearing what the King had to say was now gone. (126) Ironically, in his scaffold speech, made in the open street at Whitehall on the afternoon of 30 January, immediately prior to his execution, the King strongly asserted his innocence, insisted that it was not he who had started the war, but his enemies who had contended with him for command of his armies, and declared that certain 'ill instruments' had come between himself and his subjects, evil counsellors upon whom he laid the blame for all the trouble which had subsequently befallen his kingdoms. (127)

        Had Charles I pleaded to the charges against him and defended himself in this way just seventy-two hours earlier, it is doubtful whether providence and necessity would still have dictated regicide. Watching and waiting for exactly this kind of admission from the outset of their proceedings, the King's judges had done almost everything possible to turn the trial into a cooperative venture--from the limitation of the charges against the King and the adjournment of the legal term, through all four of his appearances at the bar, and the repeated opportunities afforded him to enter a plea or otherwise acknowledge their authority, even down to the physical arrangement of the court itself, every effort had been made to coax the King into engagement with a new constitutional dispensation. The commonplace assumption that regicide was the achievement of clear-eyed revolutionaries single-mindedly determined in their pursuit of retributive justice and the destruction of earthly tyranny does not take account of the sheer energy and imagination which the trial commissioners devoted to avoiding it. The desire to punish 'that man of blood' really only contributed to regicide insomuch as the trial commissioners were forced eventually to abandon their elaborate efforts to place the King in constitutional check-mate because of the danger of ignoring any longer the dangerous emotions stirring within the army, the City and elsewhere. The equally familiar assumption that Charles himself had set a course for martyrdom and lashed the wheel has entirely overlooked the evident willingness on his part to explore ways of reaching an accommodation, notwithstanding his fatal incapacity to do so in a way which might prove wholly acceptable to a majority of his judges. None of those party to the trial of Charles I had envisaged it as a straightforward prelude to regicide--the proceedings which took place at Westminster in January 1649 were far more important, and far more complex than that. The trial might be better understood as an extraordinary public negotiation on which hinged the future distribution of
power and authority in the English state.

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        It is not possible to understand why Charles I wound up dead in the way he did without first examining exactly what happened in the painted chamber and the great hall at the palace of Westminster in January 1649. And it has been the contention of this paper that it is impossible to understand what happened during the trial of Charles I without reference to the simultaneous struggle for control over the interpretation and implementation of a revolution transforming the English parliamentary constitution. The declaration of popular sovereignty on 4 January 1649 had laid the foundations for an important redistribution of power in the English state and beyond, giving rise to renewed political conflict in the House of Commons. The trial of Charles I was absolutely central to the struggles to extend, preserve, modify or reverse the thrust of this constitutional revolution. The trial preliminaries revealed just how little appetite there was for shedding the blood of England's anointed sovereign. Preparations were made for a proceeding from which the King's person, perhaps even some of the authority of his office, if not necessarily his own good name, might emerge unscathed. When the public sessions of the trial began, notwithstanding their pronounced differences, there was a place for Charles I in the plans of more or less everyone party to the making of the Westminster revolution. The King had only to acknowledge in proper form the authority of his judges. But Charles I set his sights considerably higher than the status of a cypher which some of his judges would have afforded him. He took a stand on the constitutional propriety which he knew a large majority amongst them still craved. However, his almost pathological incapacity to forbear meddling in the quarrels of his enemies was to be his undoing. By standing up to them, the King threw his judges into disarray, and they failed thereafter to stamp their authority on proceedings. By the end of the second day's trial, on 22 January, it was already apparent how eager the trial commissioners were to secure his acknowledgment. '[D]iscoursing with those about him, [the King] spake very much against the Court, as no true judicature, and that he did not believe that the major part of the Commissioners were of that opinion'. (128) Charles was given no good reason to alter this judgement at any time before the court finally handed down its verdict. Afforded yet further opportunities to scorn their jurisdiction, the King was sorely, and not unreasonably tempted to play his hand far beyond its limitations. Finally, he left his judges with no safe alternative to capital sentence, which was 'resorted unto as the last refuge', as the regicide Thomas Scott recalled a decade later, in 1659. (129) Three days after the trial ended Charles I was dead, not so much a sacrifice on the altar of providential Protestant antiformalism as an accidental victim of the danger, compromise and uncertainty which attend any major revolution in state affairs. The trial of Charles I had been just one battle in a war for the English constitution. Once it was over, the war moved on. (130)

        * Thanks are due for the support of the British Academy post-doctoral fellowship programme, without which this paper could not have been written, and to the organizers of seminars and conferences held in the Universities of Oxford, London and Edinburgh for providing invaluable opportunities to rehearse the main points. Dr. Jason Peacey, Dr. Stephen Roberts, Dr. David Scott and Dr. David Smith all read late drafts, offering numerous helpful comments and criticisms, and contributing greatly to the refinement and exposition of the argument, the shortcomings of which remain all my own.

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 Notes

(1.) The primary contemporary MS source for the trial is P[ublic]R[ecord]O[ffice], SP16/517, a copy of the record of proceedings produced by the clerks of the high court of justice itself. It was dubbed 'Bradshaw's Journal' by J. G. Muddiman who published it, with minor errors and omissions, in The Trial of Charles the First (Edinburgh, [1928], cited hereafter as 'Muddiman'). After its endorsement by the high court of justice, the clerks' account was subsequently enrolled and lodged with the records of Parliament, where it remains, House of Lords Record Office, MS 3676. For a discussion of the two principal MS sources, see M. F. Bond (ed.), Manuscripts of the House of Lords. Addenda, 1514-1714 (London, 1962), pp. xviii-xix. The enrolment was published by John Nalson, A True Copie of the Journall of the High Court of Justice for the Tryal of Charles I (1684). This in turn was republished by T. Howell, State Trials, iv, cols. 1045-1135, which also incorporates one of the important contemporary printed sources, Gilbert Mabbott, Perfect Narrative, a serial publication which appeared concurrently with the trial, and which provided the source for John Rushworth, Historical Collections (8 vols, London, 1721) vii, 1395-14:25.

(2.) S. R. Gardiner, H[istory of the] G[reat] C[ivil] W[ar] (4 vols, London, 1987) iv, chapters LXVI to LXX; C. V. Wedgwood, The Trial of Charles I (London, 1964), published in the United States as A Coffin for King Charles: The Trial and Execution of Charles I; ead., 'The Trial of Charles I' in R. H. Parry (ed.), The English Civil War and After, 1642-1658 (Berkeley, CA, 1970); David Underdown, Pride) Purge. Politics in the Puritan Revolution (Oxford, 1971), chapters 5-7; L. W. Cowie, The Trial and Execution of Charles I (London, 1972); W. L. Sachse, 'England's "Black Tribunal": An Analysis of the Regicide Court', Journal of British Studies, xii (1973), 69-85; A. W. McIntosh, 'The Numbers of the English Regicides', History, lxvii (1982), 195-216; Howard Nenner, 'The Trial of Charles I and the Failed Search for a Bounded Monarchy', in Gordon J. Schochet (ed.), Restoration, Ideology and Revolution (Washington D.C., 1990), pp. 1-21; S. M. Koenigsberg, 'The Vote to Create the High Court of Justice: 26 to 20?', Parliamentary History, xii (1993), 281-6; Daniel P. Klein, 'The Trial of Charles I', Journal of Legal History, xviii (1997), 1-25.

(3.) John Adamson, 'The Frighted Junto: Perceptions of Ireland, and the Last Attempts at Settlement with Charles I', and David Scott, 'Motives for King-Killing', both in Jason Peacey (ed.), The Regicides and the Execution of Charles I (Basingstoke, 2001).

(4.) Blair Worden, 'Providence and politics in Cromwellian England', Past and Present, cix (1985), 55-99, at 90.

(5.) See for example D. Alan Orr, 'The juristic foundation of regicide', in Peacey (ed.), The Regicides, pp. 117-37.

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(6.) Patricia Crawford, 'Charles Stuart, that Man of Blood', Journal of British Studies, xvi (1977), at 46.

(7.) 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. SP16/517, or 'Bradshaw's Journal' would appear to be a copy of the official record, c. 1654?, differing in some minor respects from the enrolment. See Bond, Manuscripts. Addenda, pp. xviii-xix. For another transcript of the original, see Bodl., Ashmolean MS 367, a volume in cypher, itself transcribed in long-hand in Ashmolean MS 1158. The cypher volume quite possibly predates Bradshaw's Journal, Ashmole having recorded in his diary that he began making his own copy of the court's official record on 29 August 1651. However the transcription volume is virtually identical to SPx6/517.

(8.) I am enormously grateful to Norah Carlin for making available to me the preliminary findings of her study of the petitioning 'campaign' of 1648-9, and for several useful discussions of the evidence.

(9.) Jason Peacey, 'Marchamont Nedham and the Lawrans Letters', Bodleian Library Record W, (2000), 24-35.

(10.) Bodl., MS Clarendon 34, f. 18; MS Eng. c. 6075, f. 8; B Lib, E536(27), Mercurius Melancholicus 25 Dec. 1648-1 Jan. 1649, p. 7; E537(9), The Queens Majesties Letter to the Parliament of England ... ([5 Jan.] 1649), pp. 2-3; E537(20), Mercurius Pragmaticus 26 Dec. 1648-9 Jan. 1649, unpaginated; E537(27), Mercurius Elencticus 2-9 Jan. 1649, p. 558; E537(37), His Majesties Declaration concerning the Proclamation of the Army ... and His Resolution touching their bringing of Him to Tryall [etc.] (printed for John Gilbert, [n Jan.] 1649), pp. 4-5; E538(6) Mercurius Melancholicus, 5-12 Jan. 1649, p. 22; T. Carte (ed.), A Collection of Original Letters and Papers, concerning the Affairs of England, from the year 1641-2660 (2 vols, 1739) 1, 201-3; Memoirs of the Two last Years of the Reign of that unparallell'd Prince of ever Blessed Memory, King Charles I. By Sir Thomas Herbert, Colonel Edward Coke, Major Huntington, Mr. Henry Firebrace (1702), Cooke's narrative, p. 174.

(11.) Ronald G. Asch, 'Die Englische Republik und die Friedensordnung von Munster und Osnabruck', Historische Zeitschrift, Supplement 26 (1998), 421-43.

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(12.) It was, of course, Charles II's immense misfortune that the affairs of his most obvious natural ally, the Crown of France, should be so disordered at the time of his premature succession; and that, almost as soon as successive waves of noble and popular revolt had subsided, Mazarin had sought, then secured an alliance with the Commonwealth. R. Briggs, Early Modern France, 1560-2715 (Oxford, 1977), pp. 132 ff.

(13.) [House of] C[ommons] J[ournal], vi, III.

(14.) Margaret Judson, The Crisis of the Constitution (New Brunswick, NJ, 1949), chap. x; Michael Mendle, Henry Parker and the English Civil War (Cambridge, 1995); John Coffey, Politics, Religion and the British Revolutions (Cambridge, 1997).

(15.) E. S. Morgan, Inventing the People (New York, 1988); David Wootton, 'From Rebellion to Revolution: The Crisis of the Winter of 1642/3', ante, cv (1990), 654-69.

(16.) C. Polizzotto, 'Liberty of Conscience and the Whitehall Debates', Journal of Ecclesiastical History, xxvi (1975), 69-82; Barbara Taft, 'The Officers' Agreement of the People, 1648/9', Historical Journal, xxviii (1985), 169-85.

(17.) CJ, vi, 107; [House of L[ords]J[ournal], x, 641-2.

(18.) B Lib, E537(20), Mercurius Pragmaticus z6 Dec. 1648-9 Jan. 1649, unpaginated.

(19.) CJ, vi, 115, 121.

(20.) Ibid., 112-13, 114-15; B Lib, E527(12), Pergct Diurnall 22-29 Jan. 1649, p. 2308; E537(27), Mercurius Elencticus 2-9 Jan. 1649, p. 564; Add MS 37344, f. 244.

(21.) C. H. Firth and R. S. Rait (ed.), Acts and Ordinances of the Interregnum (3 vols, London, 1911) 1, 1253-5.

(22.) B Lib, E537(26) The Moderate 2-9 Jan. 1649, p. [245]. John Lilburne made equally scornful remarks about the insincerity of the Commoners' conversion to the notion of their own supremacy. 'I know the time not long since, when that stile to be given the House of Commons single, was accounted an abominable wickednesse in the eye of the chiefest of them', and now it was being applied to a mere military junto, which the grandees had scorned as a mock power and a mock Parliament when (supposedly) they had bridled at purging it. William Hailer and Godfrey Davies (ed.), The Leveller Tracts, 2647-1653 (New York, 1944), pp. 428-9.

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(23.) B Lib, E537(20), Mercurius Pragmaticus 26 Dec. 1648-9 Jan. 1649, unpaginated.

(24.) CJ, vi, 115.

(25.) Bodl., MS Clarendon 34, f. 73v.

(26.) CJ, vi, 115. The question was put 'That Answer be returned to the Lords Messages, by Messengers of [the Commons'] own', Holland and Ireton telling 19 Noes, Trenchard and Venn 33 Yeas.

(27.) CJ, vi, 117-18.

(28.) James E. Farnell, 'The Usurpation of Honest London Householders: Barebone's Parliament', ante, lxxxii (1967), 24-46, at 24-6; Robert Brenner, Merchants and revolution: commercial change, political conflict and London's overseas traders, 1550-2653 (Cambridge, 1993), pp. 542-7

(29.) Sarah Barber, A Revolutionary Rogue. Henry Marten and the English Republic (Stroud, 2000); ead., ' "A bastard kind of militia", localism and tactics in the second civil war', in I. Gentles, J. Morrill and B. Worden (ed.), Soldiers, Writers and Statesmen of the English Revolution (Cambridge, 1998); Worden, The Rump Parliament, p. 187.

(30.) J. S. A. Adamson, 'The Peerage in Politics, 1645-1649', Cambridge Ph.D. thesis (1986), pp. 276-9.

(31.) e.g. Bodl., MS Clarendon 34, ff. 13, 17.

(32.) Bodl., MS Eng. c. 6075, f. 7v.

(33.) B Lib, E477(18), [Lieutenant Colonel John Jubbes], Several Proposals for Peace and Freedom (22 Dec. 1648, printed for J. Hanes), p. 5; E548(6), The Copies of Several Letters Contrary to the opinion of the present powers, Presented to the Lord Gen. Fairfax, and Lieut. Gen. Cromwell. By Francis White, Major of his Excellencies Regiment of Foot (20 March 1649). White's letter of 22 January is quoted extensively by Gardiner, HGCW iv, pp. 310-12. See also Manfred Brod, 'Politics and Prophecy in Seventeenth-Century England: The Case of Elizabeth Poole', Albion xxxi (1999), 395-412.

(34.) I am grateful to Dr. John Adamson for discussion on this point. See also Wedgwood, Trial of Charles I, pp. 90, 202-3; Underdown, Pride's Purge, pp. 170, 292.

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(35.) M. H. Keen, England in the later Middle Ages: a political history (1973), Pp. 274 ff.

(36.) B Lib, E537(20), Mercurius Pragmaticus 26 Dec. 1648-9 Jan. 1649, unpaginated.

(37.) Sean Kelsey, 'The Death of Charles I', Historical Journal 45 (2002), 727-54.

(38.) The official record of proceedings during the trial preliminaries consistently noted that the commissioners 'sit private' (Muddiman, pp. 193-208, passim). Occasionally it is clear that the public were able to gain admission to meetings in the painted chamber, but contemporary eye-witness accounts are extremely rare. John Evelyn was present on 17 January, when much important business was transacted, but the clerks recorded that at the court's second meeting, in the afternoon, the chamber was 'cleared of strangers'. E. S. De Beer (ed.), Diary of John Evelyn (6 vols, Oxford, 1955) ii, 547; Muddiman, pp. 203-5.

(39.) Bodl., MS Clarendon 34, f. 17v.

(40.) Gardiner, HGCW iv, pp. 285-6.

(41.) B Lib, E537(22), The Kingdomes Weekly Intelligencer 2-9 Jan. 1649, p. [1216]; E537(32), The Perfect Weekly Account 3-10 Jan. 1649, p. [348]; E538(21), The Moderate Intelligencer 11-18 Jan. 1649, p. [1838]; PRO, PRO31/3/89, Baschet Transcripts, fo. 69, Grignon to Brienne, London, 18 Jan. 1649, n.s.

(42.) Muddiman, pp. 195-6.

(43.) B. Whitelocke, Memorials of the English affairs (4 vols, Oxford, 1853) ii, 493; CJ, vi, 114; B Lib, 517 k.15(7), A Proclamation for Tryal of the King; Muddiman, p. 197.

(44.) B Lib, E538(21), The Moderate Intelligencer 11-18 Jan. 1649, p. [1838].

(45.) Muddiman, pp. 200-1.

(46.) B Lib, E527(8), Per, ct Occurrences 12-19 Jan. 1649, p. 802.

(47.) It proves nothing, but is worth noting nonetheless, that only three of the thirty-seven signatories to the precept would subsequently fail to sign the King's death warrant, whilst the eighteen who withheld their hand and seal from the instruction to Dendy would later divide almost half and half between regicides and refuseniks.

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(48.) Gardiner, HGCW iv, p. 214; Underdown, Pride's Purge, p. 104; Adamson, 'The Peerage in Politics', pp. 262-3.

(49.) Bodl., MS Clarendon 34, ff. 72, 73v; B Lib, E527(5), Perfectt Occurrences 5-12 Jan. 1649, p. [796]; B Lib, E537(38), The Moderate Intelligencer 4-11 Jan. 1649, p. [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, p. 2; T. Carte (ed.), A Collection of Original Letters and Papers, concerning the Affairs of England, from the year 1641-1660 (2 vols, London, W39) 1, 204; W. D. Macray (ed.), The History of the Rebellion and Civil Wars in England begun in the year 64r. By Edward Earl of Clarendon (6 vols, Oxford, 1888) iv, 488.

(50.) Notably, it had been claimed in December that Love had said that when the trial eventually began the charge would be 'nothing, but what he knew the K[ing]. could cleerely acquit himselfe of', Bodl., MS Clarendon 34, f. 17V. John Lilburne, recalling the events of December 1648 and January 1649, called Mildmay 'the Grandees Agent', Hailer and Davies (ed.), Leveller Tracts, p. 448. He, like Thomas Scott, was accused by Nedham of having moved the impeachment for treason of all those Lords who had opposed bringing the King to trial, B Lib, E537(20), Mercurius Pragmaticus, 26 Dec. 1648-9 Jan. 1649, unpaginated. This, of course, does not imply hostility to the upper House itself. Of the three, only Sir John Danvers would sign the King's death warrant. However, Danvers had long-standing connections with the house of Herbert, and had benefited from the electoral patronage of both the 3rd and 4th Earls of Pembroke, R. L. Greaves and R. Zaller (ed.), Biographical Dictionary of British Radicals in the Seventeenth Century (3 vols, 1982-4) i, 212. His appearance in the army officers' scheme for an Agreement of the People--in which he was named as a commissioner to oversee the smooth-running of fresh parliamentary elections--is probably a measure of the pragmaticintention underlying the manifesto on which Lilburne had turned his back, The Parliamentary or Constitutional History of England,; from the Earliest Times to the Restoration of King Charles II (2nd edition, 24 vols, 1761-3) xviii,
528.

(51.) Sean Kelsey, 'Staging the Trial of Charles I', in Peacey (ed.), The Regicides, pp. 71-93.

(52.) B Lib, E527(8), Per, ct Occurrences 12-19 Jan. 1649, p. 798. The commissioners also rejected Guildhall as a potential venue, perhaps because it would have suited the City democrats a little too well, but certainly for fear of tumults there.

(53.) Muddiman, p. 199.

(54.) Kelsey, 'Staging the Trial of Charles I'.

(55.) B Lib, E536(20), The Charge of the Army and Counsel of War ([29 Dec.?] 1648), pp. 3-4; E536(21), Articles exhibited against the King, and the Charge of the Army, against His Majesty ([29 Dec.] 1648) pp. 1-2.

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(56.) Muddiman, pp. 198, 202; B Lib, E527(8), Perfect Occurrences 12-19 Jan. 1649, p. 801; E539(6), The Kingdomes Weekly Intelligencer 16-23 Jan. 1649, p. 1226. The drafting of the charge is discussed at greater length by the author in 'Politics and procedure in the trial of Charles I', Law and History Review, forthcoming.

(57.) S. R. Gardiner (ed.), Constitutional Documents of the Puritan Revolution, 1625-1660 (Oxford, 1889), pp. 371-4.

(58.) For the material which Cooke was forced to omit from his charge, compare ibid., and 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 ([? Feb.] 1649).

(59.) Muddiman, pp. 2,4-23.

(60.) Old Parliamentary History, xvii, 2-24. Revoked during the summer of 1648, the vote had been renewed, in effect, on 13 December, with the repeal of its revocation, CJ, vi, 96.

(61.) B Lib, E473(11), 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), p. 23; Old Parliamentary History, xviii, 184.

(62.) Notably, the overwhelming majority of the allegations against the King concerned his involvement in military engagements fought before the foundation of the New Model Army, possibly leaving it open for the King to blame the whole sorry mess on the Earl of Essex and his supporters, which would be enormously beneficial to the Independent interest at Westminster. This is approximately what one contemporary believed likely to happen, Bodl., MS Clarendon 34, f.17.

(63.) Muddiman, p. 202; CJ, vi, 119, 121, 122; LJ, x, 646; B Lib, Add MS 37344, ff. 245v-46v, 247, 248v. Arrangements for the adjournment were not finally concluded until 22 January.

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(64.) The charge was discussed by two separate committees of the high court of justice. Three members of the first, appointed on lo January, including the chairman, Nicholas Love, had failed to sign the precept authorizing proclamation of a Westminster trial. Love, who believed that the King would clear his own name, and several other notable oligarchs, also sat on the second committee, appointed on 15 January, Muddiman, pp. 198, 202.

(65.) It was alleged in 1660 that when the charge against the King was being drawn, Colonel Thomas Harrison, a likely supporter of the democrat case appointed to the second charge committee on 15 January, had urged his fellow committee members that 'it will be good for us to blacken him, what we can: Pray, let us blacken him', B Lib, E1047(3), An Exact and Most Impartiall Account of the Indictment, Arraignment, Trial and Judgment (according to Law) of nine and twenty Regicides ([31 October] 1660), p. 44.

(66.) B Lib, E545(4), King Charls his Tryall ([23 Feb.] 1649), p. 45. For Bradshaw's city connections, see Valerie Pearl, London and the Outbreak of the Puritan Revolution, 1625-43 (Oxford, 1961), p. 247; Brenner, Merchants and Revolution, p. 547; Keith Lindley, Popular Politics and Religion in Civil War London (Aldershot, 1997), pp. 311-19.

(67.) P. A. Maccioni and M. Mostert, 'Isaac Dorislaus (1595-1649): The Career of a Dutch Scholar in England', Transactions of the Cambridge Bibliographic Society, viii (1984), 437, citing Lieuwe van Aitzema, Saken van Staet en Oorlogh, In, ende omtrent de Vereenigde Nederlanden, Beninnende met het Jaer 1645, ende eyndigende met het Jaer 1656 (The Hague, 1669) iii, 376-7.

(68.) LJ, x, 646; CJ, vi, 121.

(69.) B Lib, E537(9), The Queens Majesties Letter to the Parliament of England (printed by L. White, [5 Jan.] 1649), pp. 1-2; E538(15), The Moderate 9-16 Jan. 1649, p. [259]. But cf. Underdown, Pride's Purge, pp. 176-7.

(70.) Muddiman, pp. 207-8.

(71.) Even before the trial began, a correspondent of Sir Edward Nicholas had written that he expected the grandees to offer the King terms he was more likely to accept, 'since they have found him readier to embrace death than those unreasonable ones mentioned in my former letters', Bodl., MS Clarendon 34, f. 72.

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(72.) B Lib, E527(8), Perfect Occurrences 12-19 Jan. 1649, p. 802; E527(11), Perfect Occurrences 18-25 Jan. 1649, p. 803; E538(15), The Moderate 9-16 Jan. 1649, p. [259]; E538(21), The Moderate Intelligencer 11-18 Jan. 1649, p. [1848]; E1047(3), An Exact and Most Impartiall Account of the Indictment, Arraignment, Trial and Judgment (according to Law) of nine and twenty Regicides ([31 October] 1660), p. 173.

(73.) B Lib, E527(11), Perfect Occurrences 18-25 Jan. 1649, p. 804.

(74.) Norman H. Mackenzie, 'Sir Thomas Herbert of Tintern. A Parliamentary "Royalist"', Bulletin of the Institute of Historical Research, xxix (1956), 32-86.

(75.) Memoirs of the Two last Years of the Reign of that unparallell'd Prince of ever Blessed Memory, King Charles I. By Sir Thomas Herbert, Colonel Edward Coke, Major Huntington, Mr. Henry Firebrace (1702), pp. 120-1; CJ, vi, 122; Muddiman, p. 211; B Lib, E527(11), Perfect Occurrences 18-25 Jan. 1649, p. [807].

(76.) B Lib, E538(26), The King's Tryal (20 Jan. 1649?), p. 4; E538(27), Collections of Notes (20 Jan. 1649?), p. 4; E539(6), The Kingdomes Weekly Intelligencer 16-23 Jan. 1649, p. 1231; E540(2), The Perfect Weekly Account 17-24 Jan. 1649, p. [362]. One report claimed he gave a similar performance on 23 January: B Lib, E540(2), The Perfect Weekly Account 17-24 Jan. 1649, p. 364. However, there is another Perfect Weekly Account, E540(23), pp. 368-70, in which the King's standing that day, if indeed it happened, was not reported--as it was absolutely nowhere else.

(77.) B Lib, E538(28), Perfect Narrative ([22 Jan.] 1649), pp. 6-7.

(78.) B Lib, E539(6), The Kingdomes Weekly Intelligencer 16-23 Jan. 1649, p. 1231.

(79.) B Lib, E539(13), The Moderate Intelligencer 18-25 Jan. 1649, pp. [1859-60].

(80.) B Lib, E538(28), Per, ct Narrative ([22 Jan.] 1649), p. n; E539(6), The Kingdomes Weekly Intelligencer 16-23 Jan. 1649, p. 1231; E540(2), The Per, ct Weekly Account 17-24 Jan. 1649, p. [362]; E540(7), The Armies Modest Intelligencer 19-26 Jan. 1649, p. [4]. See also 669 f. 13(83), the printed version of the speech which the King had 'intended to deliver in writing on Munday Ianuary 22 1648', not published until after his death, and obtained by George Thomason on 5 February 1649.

(81.) e.g. B Lib, E538(28), Per, ct Narrative ([22 January] 1649), pp.6-7; E539(6), The Kingdomes Weekly Intelligencer 16-23 Jan. 1649, p.1231; E539(13), The Moderate Intelligencer 18-25 Jan. 1649, pp.[1859-60].

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(82.) B Lib, E538(28), Perfect Narrative, p. 11.

(83.) B Lib, E538(26), The King's Tryal (20 Jan. 1649?), p. 4.

(84.) B Lib, E539(15), Continuation, p. 7.

(85.) Pace Joyce Lee Malcolm, 'Doing No Wrong: Law, Liberty and the Constraint of Kings', Journal of British Studies, xxxviii (1999), 161-186, especially 161. Cf. Nenner, 'The Trial of Charles I', pp. 12-13, where the subtlety of the King's performance was first observed.

(86.) B Lib, E538(28), Perfect Narrative, pp. 6, 11, 12, 16; E538(30), Collections of Notes, p. 6; E539(15), Continuation of the Narrative, pp. 6, 7-8.

(87.) B Lib, E538(28), Perfect Narrative, p. 7; E539(7), The Moderate 16-23 Jan. 1649, p. [271].

(88.) B Lib, E538(28), Per, ct Narrative, pp. 13, 15, 16; E538(30), Collections of Notes, p. 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, f. 22v--omitted from the version of the day's proceedings published by Muddiman, p. 211. See also the text of the sentence, Muddiman, p. 128, in which it was remarked that after the King's refusal to plead on 22 January, 'his default and contumacie was entred'.

(89.) B Lib, E539(15), Continuation, p. 5.

(90.) CJ, vi, 123.

(91.) Muddiman, p. 211.

(92.) B Lib, E539(15), A Continuation of the Narrative, pp. 7-8.

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(93.) J. S. A. Adamson, 'Chivalry and Political Culture in Caroline England', in K. Sharpe and P. Lake (ed.), Politics and Culture in Early Smart England (Basingstoke, 1994), pp. 161-98.

(94.) B Lib, E538(26), The King's Tryal, p. 2. The famous portrait of the King on trial, in all three of its principal variants, shows him wearing his regalia. E. K. Waterhouse, 'Edward Bower, painter of Charles I at his trial', Burlington Magazine xci (1949), 18-21.

(95.) Kevin Sharpe, The Personal Rule of Charles I, (New Haven and London, 1992), p. 220.

(96.) B Lib, E538(6), Mercurius Melancholicus, 5-12 Jan. 1649, p. 21.

(97.) Wedgwood, Trial of Charles I, p. 136, citing R. W. Blencowe (ed.), Sydney Papers (1825), p. 52; and see also B Lib, E555(5) 'Mercurius Elencticus', The first part of the last will and testament of Philip Earle of Pembroke ... dictated by his own mouth, and took by Mr. Michael Oldsworth ([11 May] 1649).

(98.) From the start, Pembroke probably regarded judicial proceedings against the King conducted under parliamentary authority as the safest way to navigate the treacherous waters of revolution. He had only rejected the Commons Ordinance for trial of the King, to which he was named, because, he said, he liked not to meddle in matters of life and death, indicating at least tacit acceptance of the high court of justice. B Lib, E537(20), Mercurius Pragmaticus, 26 Dec. 1648-9 Jan. 1649, unpaginated, cited by Firth, The House of Lords, pp. 207-8; LJ, x, 646.

(99.) B Lib, E538(27), Collections of Notes, p. 5; E538(28), Perfect Narrative, p. 6.

(100.) B Lib, E540(2), The Perfect Weekly Account 17-24 Jan. 1649, p. [362].

(101.) B Lib, E527(11), Perfect Occurrences 18-25 Jan. 1649, p. 806; E538(28), Perfect Narrative ([22 Jan.] 1649), p. 5.

(102.) B Lib, E539(6), The Kingdomes Weekly Intelligencer 16-23 Jan. 1649, p.1232.

(103.) B Lib, 669 f13(83), His Majesties Reasons against the pretended Jurisdiction of the high Court of Justice, which he intended to deliver in Writing on Munday Ianuary 22. 1648. Faithfully transcribed out of the Originall Copie under the Kings own Hand.

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(104.) B Lib, E538(27), Collections of Notes (20 Jan. 1649?), p. 4. For Walker's 'grandee' credentials, see Jason Peacey, 'Reporting the Trial: the failure or a propaganda campaign', in Peacey (ed.), The Regicides. However, it should be noted that even the democrat press was capable of reporting that the King addressed Bradshaw as 'my Lord' on 22 January. B Lib, E539(7), The Moderate 16-23 Jan. 1649, p. [271]; E540(2), The Perfect Weekly Account 17-24 Jan. 1649, p. 363. For Gilbert Mabbott's 'Leveller' credentials, see Peacey, 'Reporting the Trial'.

(105.) B Lib, E527(9), Perfect Diurnall 15-22 Jan. 1649, p. [2304]; E539(7), The Moderate 16-23 Jan. 1649, p. [271].

(106.) Muddiman, p. 209.

(107.) Ibid, p. 211; PRO, SP16/517, f. 22v, portion of text omitted by Muddiman.

(108.) B Lib, E539(15), Continuation, pp. 3-4.

(l09.) B Lib, E539(4), Collections of Notes, p. 4.

(110.) B Lib, E539(15), Continuation, pp. 5-6.

(111.) Muddiman, p. 211; Gardiner, HGCW, p. 305.

(112.) Muddiman, p. 223. The task of drafting the sentence was then entrusted to seven commissioners. Four of them were absent, and the quorum was three. In other words, Thomas Scott, Henry Marten and Thomas Harrison, who were all then present, were effectively put in charge of drafting a sentence which the absentees, John Lisle, William Say, Henry Ireton and Nicholas Love, would have been free to redraft any way they saw fit.

(113.) Muddiman, pp. 223, 225.

(114.) It was later claimed that the King had had it in mind to offer his abdication in favour of 'his son'. C. H. Firth (ed.), The Memoirs of Edmund Ludlow (2 vols, Oxford, 1894) i, p. 217.

(115.) B Lib, E540(9), Collections of Notes, pp. 3-4.

(116.) John Downes would later claim credit for the 'back-bench revolt' which prompted Bradshaw's about face in ruling for an adjournment. In the absence of any contemporary evidence for the passionate exclamations Downes claimed to have directed at his fellow commissioners, we might perhaps consider it just as likely that Bradshaw had simply been reminded of his duty by one or both of his legal assistants.

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(117.) B Lib, Add MS 37344, f. 251; E527(13), Perfect Summary 22-29 Jan. 1649, p. [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).

(118.) CJ, vi, 112-113.

(119.) Gardiner, HGCW iv, pp. 226-7; Underdown, Pride's Purge, pp. 109-10, 118, 178-80.

(120.) 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).

(121.) Quoted by Jonathan Scott, England's Troubles. Seventeenth-century political instability in European context (Cambridge, 2000), p. 45.

(122.) B Lib, E538(27), Collections of Notes, p. 6; E539(6), The Kingdomes Weekly Intelligencer 16-23 Jan. 1649, p. 1231.

(123.) In legal terminology, a demurrer is a pleading which admits the facts of the case but denies the complainant's legal entitlement to relief. Shorter Oxford English Dictionary (2 vols, Oxford, 1986) ii, p. 517.

(124.) B Lib, 669 f. 13(83), His Majesties Reasons ... which he intended to deliver in Writing on Munday Ianuary 22. 1648. It is clear from the press reports of the King's speech on 22 January, which tally closely with the printed text of the Reasons, and from a marginal note in the same, that the King had come to court with a written submission which he had then begun to read aloud. All three versions of the famous portrait depicting him on trial clearly show him holding a piece of paper--presumably his Reasons. Waterhouse, 'Edward Bower'.

(125.) Firth (ed.), The Memoirs of Edmund Ludlow i, p. 217.

(126.) B Lib, E545(4), King Charls his Tryal ([23 Feb.] 1649), pp. 44-5.

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

(128.) B Lib, E539(13), The Moderate Intelligencer 18-25 Jan. 1649, p. [1859].

(129.) J. T. Rutt (ed.), Diary of Thomas Burton, Esq. (4 vols, London, 1828) iii, p. 109.

(130.) Sean Kelsey, 'The Foundation of the Council of State', in Chris Kyle and Jason Peacey (ed.), Parliament at Work (Woodbridge, 2002); id., 'Constructing the Council of State', Parliamentary History (forthcoming).

SEAN KELSEY

Hackney

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