Trials of the English Revolution
Without recounting the battles of the English Civil War or the moves made by the royalists and the forces opposed to the king, we might consider three trials conducted during the revolution.
The first two, those of Strafford and Laud, were rehearsals for the third and major trial, that of Charles I. These three provide insight into the conflict of power and law during a revolution.phomas Wentworth, Earl of Strafford and commander of the largest body of the royal army, was tried by Parliament in 1641 under a bill of attainder for the treason of advising Charles I that “he was now absolved from law” and of inviting an Irish invasion.1 William Laud, Archbishop of Canterbury and the orthodox zealot who oversaw a religious persecution of Puritans, was tried in 1644 for the treason of “his endeavor to introduce into this kingdom an arbitrary power of Government, without any limitation or rules of law.2 Together Strafford and Laud represent the two edges of the sword of royal authority—the army and the church.
The trial of the king speaks for itself in importance, a head-on courtroom collision of two powerful authorities—the king and the revolutionary army. As we saw in chapter 5, not long after Charles had been tried and executed, John Lilburne, a dissenter who had objected to the trial of Charles and to the high-handed authority exercised by Cromwell and the army, was tried in a classic legal tussle which crystallizes the other side of the revolution. While Cromwell’s regime advanced against the king, judging him for his abuse of authority and disregard for the law, Lilburne’s dissent and trial is a rearguard legal action, challenging the Cromwell regime for the same abuses.
Since 1351 and until the Tudors, Edward p treason statute kept the law bound closely to offenses against the king’s person.
It declared that treason consisted of compassing or imagining the death of the king, levying war against him, or adhering to his enemies.3 Under the Tudors, treason was expanded to include writing, printing, and other acts which would create internal disorder. Even more, the currency of treason was cheapened by Henry VIII’s convoluted treason statutes which reflected his matrimonial windings and turnings. It was made treasonous, to take only one example, for an unchaste woman (read, Catherine Howard) to marry the king without revealing the fact of her unchastity. More statutes made it treasonable to assert the invalidity of various of the king’s marriages at the wrong time or, equally treasonable, to assert their validity at other times. To complicate the picture of treason under the Tudors further, religion entangled the law of treason in its establishment, which went from Roman Catholic under Henry VII to Henry VIII’s break-away version to a Protestant version under Edward VI to a fully Roman Catholic version with Mary and a fully Protestant establishment under Elizabeth. Treason statutes, together with acts about heresy and royal supremacy in the church, were passed and repealed and passed again as the official establishment switched.4 These Tudor changeabouts in what treason meant, depending on which wife and heir and which religion were current, would have no lasting significance except that they depreciated the concept of treason. Their effect was felt in the reign of Charles I, a century later.In addition to the offenses against the person of the king, which were those of Edward III’s statute, treason would include causing a division between the king and his people. Strafford’s trial gave yet a new direction to this addition to the treason law. For both sides, the Tudor-Stuart autocracy and the Parliamentary, unity was an obsession. Strafford was charged with making such a political division that a rebellion and civil war would threaten the king’s life.
This doctrine of constructive treason was used in the Strafford indictment, but it did not originate with his trial. The new element was the accusation that the division would be permanent, a perpetual change in the constitutional order.5 John Pym, the Commons leader, for contrast, mentioned the murder of Henry IV of France and the attempts against Queen Elizabeth, “but [Strafford’s] treason, if it had taken effect, was to be a standing perpetual treason, which would have been in continual act, not determined within one time or age, but transmitted to posterity, even from one generation to another.”6 Here the trial of Strafford takes on attributes of a revolutionary trial, one regime trying another by calling into question its legitimacy. Treason, as an act against the king, can happen in any time. The Tudors may have cast the net wide to catch those who questioned the royal marriages or religion and called it treason. But in Strafford’s trial by elevating the charge from compassing the king’s death, to dividing the king and the people, to permanently undermining the constitutional order, legitimacy, not ordinary traitorship, became the issue.Also characteristic of revolutionary trials, the indictment could easily cut both ways. Pym, it could be demonstrated equally well, was threatening the king’s life by rising up against Strafford. This, comments Conrad Russell, “made it a dangerously double-edged doctrine. It was quite true that the constitution in which they all believed (there are fewer differences between Pym and Strafford than is commonly supposed) could not function if there was division between the king and the Parliament. Serious division meant danger of civil war, and in a civil war the king’s life was endangered. But it takes two to make a division, and it was quite open to somebody who thought Strafford was right and Pym was wrong to maintain that Pym was making a division, making a civil war likely, and thereby compassing the king’s death.” Legitimacy, in the same way, could be denied Parliament, just as it could be denied Strafford’s government.
Beyond the question of legitimacy, as revolutions demonstrate, is our fear of chaos. Both sides in the English Revolution, as Russell shows, realized that: “If the king and his parliament could not agree, government had to be altered somehow. If government were altered, everyone, Pym and Strafford equally, feared that something like Hobbes’s state of nature would follow.”7During the trial of Strafford, after the evidence for and against him had been placed before the House of Lords, Commons abandoned the impeachment of Strafford, in favor of a bill of attainder. This shift, a move Raoul Berger says “remains an unsolved puzzle,” was opposed by the leaders in Commons, Pym and John Hampden, and served to deeply annoy the majority of the House of Lords, and required, unlike an impeachment, the consent of Charles I.8 “If the issue of guilt was indeed for the Lords �a judicial question, which must be judicially proved,’” Berger observes, “it does them little credit to attribute to them a readiness to acquit after a full-dress trial only to turn and join in a legislative lynching.”9 Ostensibly, Commons saw that Charles could more easily be pressured into abandoning his former advisor, complying with the attainder and the execution of Strafford, than the Lords could be expected to give up on a proof of guilt and the procedure of establishing it in an impeachment trial. This moving from impeachment to attainder, in short, is a clear instance of the political agenda supplanting the legal agenda.
If part of the charge against Strafford was treason for his advice to Charles that “you have an army in Ireland you may employ here to reduce this kingdom,”10 the members of Parliament were aware that Strafford, if he had the chance, would charge them with complicity with the Scots. After Strafford had served as the Lord Deputy of Ireland, he was put in charge of the army in the North to oppose the Scots. It was the dispute with Parliament over money to pay these troops which led to Charles’s conflict with the Short Parliament and the arbitrary imprisonment of Pym, Hampden, and the other Parliamentary leaders, events which led directly to the outbreak of the revolution and civil war.
But it was Strafford, not Pym and Hampden, who was in the Tower, although had the circumstances been reversed, the high treason charges would have been flying in the opposite direction. Charles had plans to rescue his advisor, but they failed. One was to bring the army down from the North, but it was discontented from lack of pay. Another was a dramatic rescue, involving a plot to seize the Tower, but it was foiled by a betrayal. Finally, with an armed mob outside Whitehall, Charles abandoned Strafford and gave his royal assent to the attainder bill. He was executed two days later.11As Strafford walked to his execution his former colleague, William Laud, watching, raised his hand in a blessing from his own Tower cell. Two years later he was also tried for high treason. As the Archbishop of Canterbury, Laud was impeached for, among other matters, having “traitorously endeavoured to subvert the fundamental laws and government of this kingdom; and instead thereof, to introduce an arbitrary and tyrannical Government against law: And to that end hath wickedly and traitorously advised his majesty, that he might, at his own will and pleasure, levy and take Money of his subjects without their consent in parliament. And this, he affirmed, was warrantable by the law of God.” The fourteen-point indictment further accused Laud of defending absolute power by his sermons and writings, of obstructing justice and selling justice, of robbing the king of his supremacy in assuming for “himself a papal and tyrannical Power,” of altering and subverting “God’s true Religion by law established in this realm; and instead thereof, to set up Popish Superstition and Idolatry” which he defended in sermons and writings, of employing “for the same traitorous and wicked intent…such men to be his own domestical Chaplains, whom he knew to be notoriously disaffected to the Reformed Religion, grossly addicted to popish Superstition, and erroneous and unsound both in judgment and practice; by which means divers false and superstitious Books have been published, to the great scandal of Religion, and to the seducing of many of his majesty’s subjects,” of seeking to “stir up War and Enmity betwixt his majesty’s two kingdoms of England and Scotland, and, finally, of working to subvert the rights of Parliament.”12 With an indictment worded as this one was, the prosecutor had little more to do than paraphrase it and make comments.
The legitimacy of the Stuart regime was again on trial.Laud stressed in his own defense that he was guided by the law and was in conscience bound to keep it. He denied any intention of introducing an arbitrary government, which he maintained he had always hated. With Aristotle, Laud said, he believed it is a “very dangerous thing to trust the Will of the Judge, rather than the written law.”13
“As for Religion,” Laud told the lords sitting as his judges, “I was born and bred up in and under the Church of England, as it yet stands established by Law. I have, by God’s blessing, and the favor of my prince, grown up in it to the years which are now upon me, and to the place of preferment which I yet bear: And in this Church, by the grace and goodness of God, I resolve to die.” He told them that he might have easily “slid through all the difficulties” in the recent years, but “of all diseases, I have ever hated a palsy in religion.” He worked to preserve the external public worship of God with decency and uniformity, but the unity of the church cannot continue “where Uniformity is shut out at the churchdoor.” He saw the public neglect of God’s service, “the nasty lying of many places dedicated to that Service, and almost cast a damp upon the true and inward Worship of God.”14
Laud denied acquaintance with any recusants or any endeavor to advance the Church of Rome. What, then, he asked, kept him in his office where he had “fallen into a great deal of obloquy in matter of Religion,…to endure the libels and the slanders, and the base usage of all kinds, which have been put upon me”? Not because of a pledge to any in the world who would sway him against his conscience. He had no wife or children “to cry out upon me to stay with them.” Nor was he at all loath to leave the honor, profit, and ease of living in his office. He scorned honor and pride, and could have lived at much better ease and have avoided the “barbarous libelings and other bitter and grievous scorns” elsewhere. “Nay, my Lords, I am an innocent in this business of Religion, as free from all practice, or so much as thought of practice for any alteration to Popery, or any way blemishing the true Protestant Religion established in the Church of England, as I was when my mother first bare me into the world.” Lastly, he named some twenty people who had been seduced by the Church of Rome that he “settled in the true Protestant Religion established in England.”15
If Strafford represented the military side of Charles’s rule, Laud was Charles’s Torquemada. The High Commission had conducted an inquisition, under Archbishop Laud, suppressing the Puritans in England and imposing the Church of England on the Presbyterians in Scotland, both prompting rebellion. Laud’s High Commission, according to Leonard Levy, was “suddenly very active, merciless, and formidable. It prosecuted Nonconformists as if to extirpate them, and it was everywhere.”16 His impeachment, like Strafford’s, can only be understood against the political background of the preceding decade.
Yet both trials had substantial legal consequences as well. James Madison and the Founders were well aware of the trials and the legal battles fought in England.17 They learned the same lesson from both the Stuart autocracy and parliamentary triumphancy. One of the consequences of the Strafford trial, Charles McIlwain observes, is that from it “it is but a step to the declaration that �no Bill of Attainder or ex post facto Law shall be passed.’”18 As McIlwain demonstrates, such cases also led the American Founders to reject a rigid doctrine of parliamentary supremacy.19 Likewise, the U.S. Constitution narrows the definition of treason to such a degree that constructive treason is not recognized, that retroactive declarations of treason are impossible, and all that Strafford and Laud were tried for could not be called treason in the United States.20
Colonel Thomas Pride purged Parliament of its Presbyterian members who had defied the army over the question of reaching a settlement with the king, excluding ninety-six members and arresting forty-seven. The rest, an oligarchy called the Rump Parliament, serving as the voice of the army but purporting to represent the nation, established a court to try the king.21 The Resolution creating the High Court of Justice for Trial of the King, which was not agreed to by the House of Lords, read: “Resolved, That the people are (under God) the original of all just powers. That themselves, being chosen by and representing the people, have the Supreme Power in the nation. That whatsoever is enacted or declared for law by the Commons in parliament, hath the force of a law, and the people concluded thereby, though consent of King and Peers be not had thereunto.”22
Cromwell’s initial concern was the trial, not the execution. Compelling Charles to answer for his high crimes before the bar of Parliament would suffice to topple royal legitimacy. But before the trial began Cromwell changed his attitude and answered, when Algernon Sidney protested against the validity of the court, “I tell you we will cut off his head with the crown on it.”23
Sidney’s defection from the enterprise of bringing the king to trial was not the only break within the revolutionary ranks, only the most dramatic. Sir Henry Vane, the leader of the Independents in the House of Commons, Lord Thomas Fairfax, the lord general and commander-in-chief of the army, as well as the chief justices and most of the lawyers, including Oliver St. John who had prosecuted Strafford, all withdrew and stayed away.24 What Cromwell had wanted to avoid happened. Parliament’s authority to bring down the king in a trial shrank to the point that royalists could charge that the king was murdered by a group of rogues and knaves. To the royalists it was a partisan trial— regicide. Everyone could see that the Rump Parliament had lost those members who disagreed with the army. Those few left in the House of Lords had refused to agree to the bill authorizing the trial of the king, and the Rump went ahead without the Lords, abolishing, in fact, the upper house. Could a High Court established under such circumstances lay claim to legitimacy? With this question in mind, perhaps more as a symptom of the trouble, the regime designed a new Great Seal, replacing the one bearing the name and face of Charles with a seal showing only one house, Commons, in debate encircled by the words: “1651 in the Third Year of Freedom by God’s Blessing restored.”25
Cromwell recognized that the key question in a trial of the king would be the authority of the High Court: “I desire ye to let us resolve here what answers we shall give the king when he comes before us, for the first question that he will ask us will be by what authority and commission do we try him.” Henry Marten, a radical, gave the revolutionary answer: “In the name of the Commons and Parliament assembled and all the good people of England.”26 For Cromwell a higher authority supported the trial: “If any man hath carried on the design of deposing the King and disinheriting his posterity…he should be the greatest rebel and traitor in the world, but, since the Providence of God hath cast this upon us, I cannot but submit to Providence, though I am not yet provided to give you advice.”27
The High Court of Justice assembled in Westminster Hall January 20, 1649, to try the king. Of the designated 150 members only fifty-eight formed the procession to march into the crowded hall.28 Later, after the trial, fifty-nine signed the death warrant. About this group C. V. Wedgewood says: “Some were no better than the Royalists thought them—scoundrels scrambling for the spoils of war and the seats of power. But the majority acted from a sincere conviction that no other course was opened to them as God-fearing Christians and lovers of their country. Between thirty and forty men gave character, solidarity, and strength to the High Court of Justice.”29
The indictment drawn up by the Rump Parliament made it clear, in language which resembles Jefferson’s in the Declaration of Independence a century and a quarter later, that King Charles ruled illegitimately:
Whereas it is notorious, That Charles Stuart, the now king of England, not content with those many encroachments which his predecessors had made upon the people in their rights and freedoms, hath had a wicked design totally to subvert the ancient and fundamental laws and liberties of this nation, and in their place to introduce an arbitrary and tyrannical government; and that besides all other evil ways and means to bring this design to pass, he hath prosecuted it with fire and sword, levied and maintained a cruel war in the land, against the parliament and kingdom, whereby the country hath been miserably wasted, the public treasure exhausted, trade decayed, thousands of people murdered, and infinite other mischiefs committed.30
For such “high and treasonable offenses” Charles was before the High Court. Under the old idea of treason, stemming from Edward III’s statute, it would have been difficult to charge Charles with treason since the crime had to be in every way directed against the person of the king. But after Strafford and Laud had been convicted of treason and executed, the charge that Charles had subverted the fundamental constitutional order and introduced his own tyrannical government could hold.
The first and only response Charles made when he appeared in Westminster Hall was, as Cromwell had anticipated, to challenge the authority of the court:
Now I would know by what authority, I mean lawful; there are many unlawful authorities in the world, thieves and robbers by the highways; but I would know by what authority I was brought from thence, and carried from place to place, and I know not what; and when I know what lawful authority, I shall answer. Remember I am your king, your lawful king, and what sins you bring upon your heads, and the judgment of God upon this land; think well upon it, I say, think well upon it, before you go further from one sin to a greater; therefore let me know by what lawful authority I am seated here, and I shall not be unwilling to answer. In the mean time, I shall not betray my trust; I have a trust committed to me by God, by old and lawful descent; I will not betray it, to answer to a new unlawful authority; therefore resolve me that, and you shall hear more of me.31
Lord President John Bradshaw replied that the court held its authority “in the name of the people of England, of which you were elected king.” Charles shot back that he denied it because “England was never an elective kingdom, but an hereditary kingdom for near these thousand years.” He said he would “stand as much for the privilege of the house of commons, rightly understood, as any man here” but saw no House of Lords, nor king, giving authority to call “the king to his parliament.” When he saw “a legal authority warranted by the Word of God, the Scriptures, or warranted by the Constitutions of the kingdom,” he would answer.32
The sparring between Charles and Bradshaw continued over several sessions. When Charles said he required to know the authority of the court, Bradshaw informed him that “it is not for Prisoners to require.” “Prisoners!” Charles rejoined, “Sir, I am not an ordinary prisoner.” He maintained that the Commons was never a court of judicature and asked how it could become one. Bradshaw told him he could not give such discourses and asked that he be taken away. “Well, Sir, remember that the king is not suffered to give in his Reasons for the liberty and Freedom of all his Subjects,” Charles said before being led away. “Sir,” Bradshaw told Charles, “you are not to have Liberty to use this language: How great a friend you have been to the Laws and Liberties of the people, let all England and the world judge.”33
Finally, Bradshaw required that Charles, “in plain terms, for Justice knows no respect of persons; you are to give your positive and final Answer in plain English, whether you be Guilty or Not Guilty of these Treasons.” Charles replied that he did not know how he could answer: “For the Charge, I value it not a rush; it is the Liberty of the People of England that I stand for.” Bradshaw told Charles in a lengthy discourse of his own that “as the Law is your Superior, so truly, Sir, there is something that is superior to the Law, and that is indeed the Parent or Author of the law, and that is the people of England.” The end of all governors, “of having kings,” is justice. Consequently, if the king “will go contrary to that end,…he must understand that he is but an officer in trust.” Parliaments, Bradshaw instructed Charles, “were ordained for that purpose, to redress the Grievances of the people; that was their main end.”34
Bradshaw employed an ominous image when, in his lecture on the law to Charles, he compared Charles to Emperor Caligula who had said he wished the people of Rome had but one neck so that in one blow he might cut it off. “And your proceedings have been somewhat like to this: for the body of the people of England hath been (and where else) represented but in the Parliament; and could you but have confounded that, you had at one blow cut off the neck of England. But God hath reserved better things for us, and hath pleased for to confound your designs, and to break your forces, and to bring your persons into custody, that you might be responsible to justice.”35
As for the stories of Scottish and English kings, Bradshaw reminded Charles that he was the 109th king of Scotland, and that since the first, Fergus, was elected, “no kingdom hath yielded more plentiful experience than that your native kingdom of Scotland hath done concerning the Deposition and the Punishment of their offending and transgressing kings,” with his grandmother (Mary, Queen of Scots) as a fine example: set aside and replaced with his father, James, an infant. In England Edward II and Richard II were deposed by Parliament. In fact, Bradshaw told Charles, “you are the twenty-fourth king from William called the Conqueror, you shall find one half of them to come merely from the state, and not merely upon the point of descent.” The oath and the coronation “doth shew plainly, that the kings of England, although it is true, by the law the next person in blood is designed; yet if there were just cause to refuse him, the People of England might do it. For there is a Contract and a Bargain made between the King and his People.” Because the bond is reciprocal, according to Bradshaw, “if this bond be once broken, farewell sovereignty!”36 The arguments soon ended, and Charles was declared to be a “Traitor, Tyrant, a Murderer, and a public Enemy to the Country.” The High Court established by the Rump oligarchy had tried, convicted, sentenced, and executed Charles I all within the month of January 1649.
What can we make of these trials held during the English Revolution? The trials of Strafford and Laud prepared the way for two important changes in the law. First, they set the legal stage for the trial of Charles. Just as the Tudors had diluted the treason law sufficiently to try and convict not only those who threatened the king but the king’s own closest advisors who together represented both sides of royal authority, the sword and the bishop’s staff, so their trials watered down the legitimacy of the Stuart regime enough that the king himself might be tried. Second, the Strafford and Laud trials, by way of negative example, influenced James Madison and the American Founders to write a tightly worded treason clause, provide against bills of attainder and ex post facto laws, and incline against parliamentary supremacy.
The trial of Charles I pits two regimes, two claims to sovereignty, directly against each other. Three views of the law emerge during this clash. First, the royalist position of sovereignty based on divine right: No court had authority to judge the king. A second position, held mainly by members of the bar and bench, opposed the king’s prerogative and the High Court’s claim because both lacked positive legal authority. Many, such as Algernon Sidney, were strong republicans, but they walked out on the deliberations about the king’s trial because they saw nothing in the written or common law providing for it. Finally, Cromwell and Bradshaw introduced the higher authority of God’s Providence and natural law to give legitimacy to the trial of the king. This was also Lilburne’s position, but he wanted a more legitimate source to give voice to this higher law than the army’s Rump Parliament, and he insisted that if the king were to be tried for violating basic principle, he could not be subjected to a court which denied him such fundamentals as a trial by jury.