Putting an end to tyranny
Review by Paul Feldman
The trial and execution of King Charles I in 1649 after Parliament’s victory in the Civil War is traditionally viewed as the beginning of the “interregnum” – a between-reigns period that ended with the restoration of monarchy in 1660 – and not as a decisive blow against absolutism and tyranny.
There are obvious political motives behind attempts to obscure the origins of the two civil wars that Charles launched as well as the fact that England was once a republic. Revolution is considered such an un-British thing. The fact that the capitalist class came to power through a violent overthrow of the old order and not through the ballot box is also best forgotten.
Historians such as Christopher Hill spent their lives rescuing the real, social revolutionary content of the English Revolution from its detractors. Now the eminent human rights lawyer Geoffrey Robertson in The Tyrannicide Brief has added to our knowledge by analysing the actual trial of Charles and revealing its significance for today.
Commenting on the prejudices about the period, Robertson says: “Any rational people would take pride in the events of 1649, the critical year for this ideological progress. But it has been the British way to ignore the Republic, to deplore the prosecution of the King and to pretend that liberty dates from what is dubbed ‘the Glorious Revolution’ of 1689 – a milksop affair neither glorious nor revolutionary, which merely retrieved from the fall of the Stuart kings some of the gains made in 1649.”
More than a century before the French Revolution, Robertson describes how a proto-democracy appeared in England, with constitutional guarantees for civil and religious liberties. Many ideals of 19th and 20th century democracies – the sovereignty of parliament, the independence of judges, freedom from arbitrary arrest and detention, the right to silence – all have their origins in the period of the English republic.
Robertson brings the King’s trial to life through the previously unknown story of John Cooke, the lawyer appointed by Parliament to lead the case for the prosecution as Solicitor-General. Cooke was a relatively unknown figure and only got the brief because top government lawyers, including the Attorney-General, went down with mystery illnesses when the time came to prosecute the monarch.
Cooke was a radical lawyer who had risen from a relatively humble Puritan farming background in the Midlands. In 1622, aged 14, he was granted a scholarship for the “poor and needy” at Wadham College, Oxford, to study law. When the Civil War began in August 1642, Cooke was well known for his pamphlets which advocated a wholesale reform of the legal system. He incurred the hostility of many in his profession because of his uncompromising approach, right to the end of his life. Siding with the Parliamentary forces, Cooke became close to army leaders like Oliver Cromwell and Thomas Fairfax. He for one did not leave town when reports grew that Parliament would ask him to prepare what Robertson calls the tyrannicide brief.
Using extensive official records that survived royalist destruction, Robertson shows how both the trial and the sentence were far from inevitable. No-one set out to kill the King or establish a republic. Under the existing rules of war, Charles could have been court-martialled and executed. There were always the options of assassination or exile. Robertson concludes that the decision to put the King on trial under common law was “a step as unnecessary as it was unprecedented”.
The immediate origins of the Civil War lay in Charles’ view that “Parliaments are altogether in my power for their calling, sitting and dissolution”. Yet deeper economic and social questions lay behind the bloody conflict. New social classes had emerged in England, particularly in the south and east, who came into conflict with the existing feudal state system. Capitalist farmers who produced for markets and finished cloth manufacturers were joined by men who mined coal. Rich merchants bought land from the idle aristocracy as the feudal forms of tenure began to break down. Increasingly, these interests were represented in the House of Commons.
Ranged against the new bourgeoisie was the King and his state machine, including an oppressive established church. They favoured state-controlled monopolies on trade and manufacture, alongside arbitrary taxes that were used to finance the vast armies of hangers-on at court. Obstacles were constantly placed in the way of capitalist development by a regime intent on holding onto power. Religious dissent was also repressed.
As economic power shifted away from the feudal order, with its guild system in the towns, Charles became increasingly desperate. Those who refused to pay his imposed taxes were jailed by a judicial system openly in the hands of the King. Already by 1629, Parliament had declared in general terms that raising of taxes without its permission was an act of treason. MPs held the Speaker down while the resolution was passed. Charles promptly dissolved Parliament and instituted personal rule for the next 11 years.
In 1640, Charles recalled Parliament to raise money for an unpopular war against the Scots, who had effectively broken away from his and the church’s control. When Parliament declined to raise funds, it was once more dissolved. On its recall, it promptly impeached the Earl of Strafford, the King’s top adviser, along with the Archbishop of Canterbury. They were involved in undoing the work of the Reformation, which had turned Britain into a Protestant state from a Catholic one. Strafford’s execution was watched by an estimated 100,000 people.
January 1642 was the moment that relations between the two sides broke down completely. The King failed in his attempt to arrest key Parliamentary leaders and the Speaker refused to recognise Charles’ authority. The King promptly left London, to raise his army and launch war on Parliament. He was only ever to return as a prisoner.
Charles declared war on Parliament in August 1642 and again in 1648. On both occasions Cromwell’s forces defeated the royalists. During this period, Parliament passed laws without the usual royal assent and for the first time created its own machinery of state. During the bloody battles that followed, one in 10 of the adult male population of England was killed. Parliament was forced to build a revolutionary army of a new type rather than rely on local militia under the control of landowners. The New Model Army had a council which all regiments elected representatives to. Debate and discussion was encouraged while discipline became the army’s maxim.
Charles was about to launch a third war when it was decided to put him on trial. At that moment, most Parliamentarians favoured a constitutional settlement and not a republic. The King had – like his predecessors – considered himself above the law, always claiming that he ruled by divine right on behalf of God. This was the problem Cooke had to grapple with when Parliament created a special High Court of Justice for the unprecedented job of putting a sovereign on trial for crimes against the people.
Charles behaved throughout the trial as though he did not think these “lesser men” would dare to sentence their King to death. But John Bradshaw, the president of the court, told him that his position was one of trust, requiring the continuing consent of the people. The “great bulwark of the people is the Parliament of England. And by subverting and rooting up that which your aim hath been to do, certainly at one blow you had confounded the liberties and properties of England”.
Parliament represented the people and an attack on Parliament was an attack on the people, for which criminal charges could be brought. The House of Commons, even without some members and in the absence of the House of Lords, was the de facto power in the land, Robertson argues. It had received this power from the victorious army it had created.
Cooke had under two weeks in which to prepare the case for Parliament. During this time, he formulated the concept of a crime of tyranny by reason of Charles’ command responsibility. Not only had he launched a civil war, but Charles frequently appeared on the battlefield and issued direct orders. Charles oversaw the unlawful killing and torture of prisoners and had also invited England’s enemies to invade the country.
The charge formulated by Cooke and approved by Parliament, stated that:
Charles Stuart has been and is the occasioner, author, and continuer of the said unnatural, cruel and bloody wars, and therein guilty of all the treasons, murders, rapines, burnings, spoils, desolations, damages and mischiefs to this nation, acted and committed in the said wars or occasioned thereby… And the said John Cooke on behalf of the people of England does for the said reasons and crimes impeach the said Charles Stuart as a tyrant, traitor, murderer and a public and implacable enemy to the Commonwealth of England.
As Charles refused to answer to the charges, or recognise the authority of the hearing, Cooke called a series of witnesses outside of the court to testify to the King’s role in the civil war. These were later read into the court record. Cooke’s closing speech, which he never delivered, was published a week later. Robertson – who insists that Charles had a fair trial - describes the following words of Cooke as a “revolutionary doctrine”:
“When any man is entrusted with the sword for the protection and preservation of the people, if this man shall employ to their destruction that which was put into his hand for their safety, then by the law of that land he becomes an enemy to that people and deserves the most exemplary and severe punishment.”
The death sentence was carried out on 30 January 1649 on a scaffold erected outside the Banqueting House in Whitehall. On 17 March 1649, Parliament passed an Act abolishing the office of king as “unnecessary, burdensome and dangerous to the liberty, safety and public interest of the people”. The House of Lords was abolished on 19 March and England declared a Commonwealth. Cromwell once more led his army into the field, this time to defeat Charles’ son, who fled into exile. In 1650, with Parliament refusing to call new elections or endorse reforms, Cromwell and the army sent MPs packing. Cromwell became Lord Protector of the Commonwealth – a kind of president for life – under an Instrument of Government. Sometimes he governed with Parliament’s support, at other times there was direct military rule. A group from Parliament offered to make him King but Cromwell declined.
As for Cooke, his life was devoted to reforming the legal system, both in England and Ireland, where he chose to go after the execution of Charles. He is credited by Robertson with writing the first code of legal ethics and favouring the poor against the tyranny of Irish landlords. But with the restoration of the monarch in 1660, Cooke along with other survivors of 1649 became a victim of a Stalinist-type of show trial. Illegally arrested in Ireland, he was charged with regicide by a court where jurors actually gave evidence for the prosecution! A few fortunate ones managed to reach the safety of the American colonies of Virginia and Massachusetts while others sought asylum in Switzerland. Others were hunted down on the Continent by royalist assassins.
At his trial, Cooke insisted that a barrister could not be held responsible for the fate of the prisoner he prosecutes. He had played no part in establishing the court and there was no evidence that the judges had any fixed intention to put Charles to death. Answering the charge that the court in 1649 was “unlawful and tyrannical”, Cooke replied that it had been established by the de facto power, “otherwise it would not have been lawful for any man to exercise a profession during such a power”. His words fell on deaf ears, however, as the jury was instructed to bring in a guilty verdict. Cooke met an horrific death, being mutilated before he was hanged.
The restoration of monarchy could not undo what had taken place, however. Never again would a monarch invoke the “divine right of kings” to do whatsoever he pleased. The outer form of monarchy was restored, but its content and significance had changed for all time. The substantial achievements of the republic were consolidated. A social revolution no less sweeping in its consequences than the French Revolution of 1789 had secured political power for a new class and with it the ability to determine the future course of economic and social history.
Monopolies and royal control of industry and trade disappeared for ever. Feudal land tenure was never restored. There was no break in commercial, colonial or foreign policy when Charles II came to the throne. Star Chamber courts controlled by the monarchy remained a thing of the past. The new state that had began to form in the image of the nascent capitalist class was retained. By the end of the century, Parliament had assumed complete control of economic, military and foreign policy.
Meanwhile, the truth of these events remains the subject of official misrepresentation. The government’s education website reduces the Cromwellian revolution to a series of “violent incidents”. Robertson notes: “British children must use these ‘violent incidents’ to answer the question ‘Should the king share power with parliament’. In the year 2005, just as in the year 1649, they might be asked whether the king should have any power at all. However, Mr Blair’s government does not encourage teenagers to think about the advantages of a republic.”
Robertson has written an immensely readable book, a kind of political thriller. He brings Cooke to life as a man, showing the relationship between his Puritanism and his views about monarchy, law and ethics. An obscure and much-maligned figure, Cooke is restored as a “radical lawyer”, someone, according to Robertson, who is in short supply today. The book is timely as the conflict grows between the executive arm of the state and the legal system, especially over the destruction of human rights by New Labour. On 12 April, for example, Mr Justice Sullivan branded control orders an “affront to justice” but acknowledged that the courts had no power to overturn them because of the way the law was framed.
The issues that led to the English Revolution of 1649 have re-emerged in their 21st century form. Once again, the state – this time in its capitalist form - is a barrier to further human progress. By identifying totally with corporate economic and financial powers, the capitalist state has lost its credibility and any right it has claimed to govern on behalf of the people as a whole. The state is unable to protect its citizens against threats that range from climate change, to the impact of market forces on people’s lives, to the threat of terror attacks in response to its imperial policies. Transformed by the march of global capital across the planet, the British state is neither democratic nor accountable. Increasingly it is tyrannical and authoritarian, ruling by executive order in place of the rule of law. It has suppressed human and social rights on an unprecedented scale. Parliament, which once played a key role in transforming society, is now reduced to a sham and a rubber stamp for dictatorial rule.
History, in the shape of the English Revolution, demonstrated that in order to achieve economic liberation, it becomes necessary to defeat and break up the powers of the existing state. What 17th century revolutionaries did in effect was to free emerging capitalism from its feudal chains and take the first steps towards a democratic state. The Parliamentary forces did not set out deliberately on this course. A French historian later observed that none were more surprised than the participants themselves when the time came to “draw the sword” and fight it out.
More than three and a half centuries later, the immense resources and technological achievements resulting from capitalist globalisation could easily solve humanity’s most pressing problems, were they directed in a social rather than profiteering way. So the task for the 21st century is to liberate these forces from the straitjacket of capitalism. We have the right to do this through the creation of a new, democratic state that for the first time in British history reflects and meets the aspirations of all of the people. We have both the right and the obligation to put an end to tyranny for good.
The Tyrannicide Brief. Geoffrey Robertson, Chatto & Windus £20.00