‘Much innocent blood of the free people of this nation has been spilt, many families undone, the public treasury wasted and exhausted, trade obstructed and miserably decayed, vast expense and damage to the nation incurred, and many parts of this land spoiled, some of them even to desolation.’
These words appeared on the charge sheet of King Charles I at his trial in January 1649.
In The Tyrannicide Brief (2006) Geoffrey Robertson QC wrote an illuminating account of the context and events which led to Charles’s trial, and the legal validity of his indictment.
The English civil wars of the mid-17th century were waged between those who believed in the doctrine of the divine right of kings, that the monarch was endowed with absolute power unlimited by law, and those who believed Charles I, who succeeded to the throne in 1625, could not encroach upon traditional liberties and breach the common law.
Needless to say, many of those who most ardently supported unbridled power vested in the monarch were part of the hierarchy which benefited from such an arrangement.
Set against them were Puritan parliamentarians who asserted the constitutional lawyer Edward Coke’s vision of the common law as ‘no respecter of persons and of Magna Carta as the guardian of liberty’. They were imprisoned for their defiance but returned to parliament in 1628 to pass ‘The Petition of Right’ and to condemn the King for illegal taxation and denial of habeas corpus. For their trouble, they were arrested and thrown into the Tower, and Charles Stuart dismissed parliament and ruled as an autocrat from 1629-40.
Eventually he was forced to summon parliament to raise money for a war to impose religious orthodoxy on the Scots. But parliament opposed him and in August 1642 the King declared war on parliament.
By the summer of 1647 Charles I was in the custody of parliament’s army at Hampton Court. The burning issue of the day thus became how to limit the King’s power so there could be no return to his violating ‘the fundamental laws and liberties of the kingdom’.
The general council of the army, encamped in London, met every Thursday in St Mary’s Church, Putney. The council included two officers and two soldiers selected from every regiment, who would serve along with the High Command to debate army policy and ensure consultation with rank and file. These meetings then expanded to become the Putney Debates. Over the autumn a simple charter, a draft constitution, was put together called ‘An Agreement of the People’, which guaranteed a sovereign parliament and a set of basic civilian rights that parliament could not alter. It called for more representative parliament, freedom of conscience and religious toleration, and an end to all discrimination on grounds of ‘tenure, estate, charter, degree, birth or place’. And on October 28, 1647, the Army Council held its great debate at the Putney church packed with officers and civilians.
But no negotiated settlement was possible with the King, who played a double game of appearing to concede to parliament’s demands whilst making plans to raise an army in Ireland, counting on continental supporters rallied by his French Queen, Henrietta Maria, and the spectre of a third civil war loomed. The decision was therefore taken to put the king on trial. That Charles had waged war against his own people was indisputable, and the Commons passed an act to end the impunity hitherto accorded the monarch.
The choice was for an open and public trial by a traditional adversarial process and not by court martial, with no pre-conceived outcome.
The charge was the crime of tyranny. The preamble stated that ‘Charles Stuart, the now King of England, has 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’. The crime of tyranny was defined as ‘capable of commission by a head of state who begins a widespread and systematic persecution of his own people with the intention of gathering all power into his own hands’.
Whatever anachronistic cries of regicide have reverberated through the years, Charles I’s death sentence arose not from a bloodthirsty desire for revenge, as was the case during the French Revolution a century and a half later. Charles was tried by due process, justified by reference to law – Magna Carta, the Petition of Right and the common law, and even to the Saxon legal heritage that pre-dated the Norman Conquest. He was given ample opportunity to mount a defence, which he stubbornly refused to do, repeating only that he did not recognise the authority of the court. He was beheaded in January, 1649.
Following the so-called ‘Glorious Revolution’ of 1688, which Georffrey Robertson contends was neither glorious nor a revolution, the Bill of Rights of 1689 was passed. But the terrain had been well prepared 40 years earlier, when those brave men gave their lives for freedom of expression and conscience.
These rights and principles are part of the ancient laws of this land, and any government or parliament which seeks to violate them, now or at any time, renders itself illegitimate.
In the words of Robert F Kennedy Jr, ‘Freedom of speech cannot be cancelled by legislation or executive command.’