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Murrey and Blue interviews Michael K. Jones

  • Which of the Black Prince’s military achievements is the most impressive and why?

The main attraction in writing a biography of the Black Prince was to bring to life his martial exploits, for Edward of Woodstock, the eldest son of Edward III, captured the imagination of fourteenth century Europe. The chronicler Jean Froissart described him as ‘the flower of all chivalry’; the Chandos Herald, who fought with him, saw him as ‘the embodiment of all valour’. Thomas Walsingham wrote: ‘He never attacked a people he did not conquer; he never besieged a city he did not take.’ Even the French were impressed. A Valois chronicler stated: ‘He was one of the greatest and best knights ever seen. In his time, he was renowned the world over and won the respect of all.’

The Black Prince won his spurs at Crécy, on 26 August 1346, aged just sixteen. Edward III’s army used the longbow to deadly effect – annihilating the French nobility – and the Prince fought with conspicuous courage that day. Nine years later he received his first independent command as king’s lieutenant in Gascony, conducting a brutal plundering raid that scorched the earth of Languedoc. But it was at Poitiers, on 19 September 1356, that he won a truly remarkable victory over the numerically superior French, capturing their king, Jean II. In the battle’s aftermath, Jean was forced to accept the terms of a treaty which marked the zenith of England’s dominance in the Hundred Years War.

Edward of Woodstock then became Prince of Aquitaine, ruling – from 1362 – over a vast swathe of territory in southwest France. Five years later, he led an Anglo-Gascon army into northern Spain on behalf of the exiled ruler Pedro of Castile and won his last great success. At Nájera – on 3 April 1367 – he routed the opposing Franco-Castilian army of Enrique of Trastamara and restored Pedro I to the throne.

In purely military terms, the battle of Nájera was the Black Prince’s most impressive achievement. He skilfully reconnoitred the terrain before making a daring night-time march around his opponent’s position, drawn up on a wide plain to the east of the town. As dawn broke, his army made a surprise attack upon Enrique’s left flank. This was instinctive generalship – the Prince deploying his bowmen and dismounted men-at-arms with devastating effect before throwing in his cavalry to pursue and cut down his fleeing foe. The chronicler Henry of Knighton said simply: ‘It was the greatest battle to have taken place in our time.’

Yet, in a broader context, Nájera represented a flawed triumph. The Prince’s conduct of the campaign was on occasions hesitant and lacklustre, and although this was redeemed by a fine victory, its consequences (in which the army succumbed to a dysentery outbreak and Pedro reneged on financial obligations he had promised to repay) left him struggling with sickness and massive debt.

It was the battle of Poitiers that made the strongest impression on contemporaries. Here the Prince showed the full range of his talents: tactical acumen and astonishing courage during the course of the fighting and praiseworthy chivalry – in his treatment of his captured opponent, King Jean II – in its aftermath. It was the summit of his career as England’s warrior-hero.

  •  Do you think the Black Prince would have made a good king?

 The Black Prince passed away on 8 June 1376 – just over a year before the death of his father – after enduring a long and painful illness. His body lay in state in Westminster Hall and his funeral was then held at Canterbury Cathedral, some three and a half months later, on 29 September, amidst an outpouring of national grief. ‘Thus died the hope of the English’, Thomas Walsingham remarked. The poet John Gower hailed the Prince as an exemplar of knighthood: ‘He was never discomfited in a fight…he was a wellspring of courage.’ And in his funeral sermon Thomas Brinton, bishop of Rochester, evoked an era that seemed to be passing: ‘His wisdom appeared not only in his habit of speaking prudently’, Brinton emphasised, ‘but also in his manner of acting, because he did not merely talk like the lords of today but was a doer of deeds.’

Yet an idealised picture was being created. The Prince had, after all, been seriously ill for a long time and it suited contemporaries to remember the glorious victories of his prime rather than his final years in France, which were tarnished by the levying of a hearth tax on his Gascon subjects, the ill-fated resumption of the war and the sack of the French town of Limoges – although here hostile propaganda would play a part in unjustly blackening the Prince’s reputation.

The Black Prince’s generosity towards his fellow fighters left him constantly in debt.  A measure of financial prudence was necessary to be a successful ruler. However, if he had retained his health, his martial standing and easy rapport with the aristocracy would have been considerable assets as king. And at beginning of his rule as Prince of Aquitaine he did indeed show much promise, particularly in his commitment to justice and good government. In contrast, the last days of Edward III’s reign were beset by corruption and mismanagement, making the profound sense of loss at the Prince’s passing only too understandable.

  • Was any part of Richard II’s ‘tyranny’ justified?

Richard II was a very different man from his father. Intelligent and cultivated, he thought carefully about the dignity of kingship, possibly modelling some of his court protocol on what he had learnt of the magnificence of the Black Prince’s rule in Aquitaine. Yet he was no warrior – preferring instead to make peace with France – and his relations with his nobles were marred by distrust and outbursts of petty spite.

The period of ‘tyranny’, a description coined by the chronicler Thomas Walsingham, covered the last two years of Richard’s rule, from 1397-9, when the monarch took his revenge on the Appellants (a group of lords who had restricted his royal powers some eight years earlier), created a host of new aristocratic titles, imposed forced loans upon his subjects and strengthened royal power in the localities. In Richard’s eyes such measures were justified by his own concept of kingship, ‘an obligation laid upon him by God’, but political theory did not match practical reality. He ruled in a climate of fear, alienating many around him and ultimately sowed the seeds of his own downfall.

  • In the fifteenth century, did the Yorkists or the Lancastrians have a better claim to the throne?

 The Lancastrian dynasty began when Henry Bolingbroke, the future Henry IV, deposed the anointed king, Richard II, forcing him to abdicate. The Lancastrian claim to the throne derived from their descent from John of Gaunt (Henry’s father), the third surviving son of Edward III, through the male line. If the female line was given precedence the House of York had the better claim, through their descent from Lionel duke of Clarence (Edward’s second surviving son), through the marriage of Lionel’s daughter, Philippa, to Edmund Mortimer, earl of March – it was the granddaughter of this union, Anne Mortimer, Richard duke of York’s mother, who brought this claim into his family.

However enmity between the houses of York and Lancaster – founded upon this dynastic fault line – a feature of the drift to civil war in the 1450s, was by no means inevitable. Richard duke of York served Henry VI loyally as king’s lieutenant in France and it was only after his replacement by his hated rival Edmund Beaufort, duke of Somerset and fears that Somerset might manipulate the king and challenge York’s position within the realm as heir presumptive (evident in his articles against the duke in 1452) that the Mortimer claim, and the family’s descent from Lionel of Clarence, was once more considered. In short, it was Henry VI’s failure to dispense patronage and political influence even-handedly that propelled the house of York towards asserting its own claim to the throne.

  • Did Margaret Beaufort consistently plot to put her son, Henry Tudor, on the throne, or was she – initially at least – trying to engineer his return to England, and a position within the Yorkist realm?

It is a pleasure to see such a resurgence of interest in Margaret Beaufort – one of the great political survivors of the late middle ages – in fiction, non-fiction and TV. When I undertook my 1992 biography, with Malcolm Underwood, The King’s Mother, little was known about her political role and many of the key facts of her life misunderstood. Tudor historians would later insinuate that Margaret was always trying to advance her son’s claim to the throne but the reality was rather different.

Margaret Beaufort was always the pragmatist – and the archives of St John’s College, Cambridge, show her negotiating with Edward IV to secure a title and marriage for Henry Tudor within the Yorkist polity, a course of action that she continued to pursue at the very beginning of Richard III’s reign. It was only later in the summer of 1483 that Margaret began plotting against Richard. In the words of Polydore Vergil she ‘was commonly called the head of that conspiracy’, but whether her intention at this stage was to promote her son’s claim to the throne or merely to support Buckingham’s rebellion is far from clear. An accessible, recent account of these machinations can be found in the book I wrote with Philippa Gregory and David Baldwin, The Women of the Cousins’ War and in my piece ‘Mother of the Tudors’ in the BBC History Magazine (January 2017).

For Michael Jones’s author website see:


Has Henry VII’s actual birthplace been found in Pembroke Castle….?


It seems there is now new evidence at Pembroke Castle to suggest the existence of a late medieval building in which Henry VII may have born on 28th January, 1457. I am not quite sure why it is thought this might be the actual building where Margaret Beaufort gave birth at the age of around 14, and will only be convinced when they find the room where his first nappy was washed! However, any new buildings are an exciting find, and I hope the archaeologists will make wonderful discoveries.

TREASON 3 – The Long Parliament 1649


“ The scaffold was hung round with black, and the floor covered with black, and the axe and block (were) laid in the middle of the scaffold. There were divers companies of Foot and Horse on every side of the scaffold, and the multitude of people that came to be spectators were very great.”[1] The soldiers and the civilian spectators were present in Whitehall on a bitterly cold 30 January 1649 to witness the execution for treason of Charles I their lawful king. It remains an event unparalleled in British history.


The execution was delayed whilst the Dutch envoy made a last minute effort to get Charles reprieved. It was a hopeless cause as the House of Commons were determined that the law should take its course. Eventually, at about 2pm, the king stepped out from the Banqueting Hall onto the scaffold in Whitehall. He was wearing two shirts so that he did not shiver in the cold, which might otherwise be taken by the multitude for fear. His bearing was dignified and calm, and after commenting on the low height of the block he addressed his last remarks to those on the scaffold, it being pointless to address the multitude since they would not hear him. He regretted nothing except the death of his friend and advisor Thomas Wentworth earl of Strafford at the hands of Parliament. “ I only say this” he said, “that an unjust sentence I suffered to take effect is punished by an unjust sentence on me”. He said he was blameless of wrongdoing and charged parliament with causing the civil wars. He also made reference to the law of the land and his efforts to uphold his subjects’ rights and privileges under the law. Finally, he forgave his enemies and made his peace with God. He showed no remorse for the deaths of hundreds of thousands of people from all three of his kingdoms in the civil wars [2]; nor did he repent his own conduct: “Then the king took off his cloak and his George giving his George to Dr Juxon [sic][3] saying ‘remember’ (it is thought for the Prince) and some other small ceremonies [were] past. After which the king stooping down laid his head upon the block. And after a little pause, stretching forth his hands, the Executioner at one blow severed his head from his body.[4]


His grim task completed, the executioner picked-up the king’s head and showed it to the crowd. The silence was deafening.[5] What is also remarkable is that the trial and the execution were uninterrupted by those whom it was subsequently claimed were utterly opposed to the proceedings. “It was as if the country had failed to catch-up with events at Westminster: they heard of them unfolding, in a sort of awe. When the shock wore off it would be different. But on Tuesday 30 January 1649 the shops remained open, the public went about its business, the king was not immediately missed.”[6]


At first sight, this trial has little in common with my two previous articles about the law of medieval treason and the constitution [7]. In the Merciless Parliament of 1388 (my first essay posted 19 May 2016) and the Parliament of Devils in 1459, (my second essay posted 20 May 2016) the law of treason was clear, as was the jurisdiction of the House of Lords to try traitors. Whilst I would not claim that either of those trials met modern standards of due process, the legal procedures complied with the law as it was known and understood at the time.[8] The circumstances in 1649, however, were completely different. The law of treason as it applied to the king’s subjects did not apply to the king [9]. He was the source of justice and could not be tried by his subjects for anything; nor was there a tribunal fit to try him. Magna Carta protected all freemen (and free women) from judgement except by their peers or the law of the land. [10] The king was peerless.




Despite these differences I have chosen this trial as the subject of my third (and last) essay on the theme of medieval treason for reasons, which I believe are compelling. First, notwithstanding their differences, there are also similarities between the events of 1388, 1459 and 1649, which are worth exploring. All the trials took place against a background of political and social unrest, and considerable criticism of the king’s performance. And they all had as an undercurrent to the proceedings a power struggle between the king and his parliament for constitutional sovereignty. The trial of 1649 and its consequence marked an important development in the ultimate resolution of that conflict. Second, this trial is legally significant because it marks the early evolution of the law from a medieval definition of treason as being purely against the monarchy, to a modern concept of treason (could be by a head of state) against a nation.


The Long Parliament

To understand what happened in England during January 1649 it is necessary to delve a little into the surrounding circumstances and into the nature of the king and the parliamentarians who opposed him. The Long Parliament is justly famous, not for its longevity, controversy or drama but because a ‘rump’ of its members instigated and oversaw the trial and the execution of king Charles I.[11] It was summoned following a period of eleven years during which the king ruled by his royal prerogative, without parliament. He had little time for parliament; he summoned five during his reign, in 1625,1626,1628 and twice in1640, and he quarreled with them all He only summoned parliament when he needed money; it was to him nothing more than a useful revenue stream. He suffered, their debates about the conduct of state affairs and the administration of the realm because he was gracious, but he ignored the outcomes because, strictly speaking, such matters were none of parliament’s concern. In 1629, frustrated by parliament’s attempt to curtail his prerogative,[12] Charles dissolved it, expressing the hope that he never had to summon another.


His personal rule was characterized by policies and actions his subjects bitterly resented. He imposed unlawful taxation and forced loans thereby undermining ancient laws of property and possessions. He imprisoned without trial and often without charge those who refused to pay, or objected to paying and he suborned the judiciary to find in his favour in litigation. Worst of all, he took money to assist catholic Spain in their war against the protestant Dutch, a policy that was anathema to the protestant English. On top of all that, he was at war with his Scottish protestant subjects; a war, which he wanted his English protestant subjects to pay for with their blood and their money.


By the spring of 1640, Charles’ impecuniosity compelled him to summon parliament for the purpose of voting him a subsidy sufficient for him to raise an English army to crush the Scots. The ‘Short Parliament’ (as it became known) lasted for three weeks. Charles dissolved it as soon as he realized the Commons would not vote him a farthing in subsidy until he addressed their grievances arising from his unparliamentarily practices. The peremptory dissolution of the Short Parliament did not solve Charles’ problem; the royal exchequer still lacked the means to pay for his war plans. By November 1640, Charles was compelled once more to ask parliament for money. It didn’t need a genius to foresee that parliament were unlikely to vote a subsidy until he satisfied their grievances on the two burning issues of the day: the demand for a new constitutional settlement, and religious reform.


On the constitutional issue, parliament was united in their resolve to bring the king to account for his despotic personal rule and to remedy its adverse consequences. First and foremost, they punished those whom they thought most culpable for the misgovernment of the previous eleven years. They also passed practical legislation to ensure that such misrule could not re-occur. For example, they passed an Act prohibiting the dissolution of parliament without its consent, and the Triennial Act, which made it obligatory for parliament to be summoned at least once every three years. The principle of no taxation without parliamentary consent (no taxation without representation) was established and the prerogative courts were abolished. [13] The king assented to these and other measures through gritted teeth; he had every intention of reneging on them as soon as he had restored his authority. Indeed he had already said that he would never consent to the curtailment of his prerogative. According to his version of English law, anything granted by the king under compulsion was null and void. [14]


The issue of religious reform was problematic because parliament was divided. Not only did the two Houses of parliament disagree with each other but the House of Commons was itself divided along sectarian lines. King Charles was the first English king to be born and raised in the traditional Anglican Church. Unlike his father James I, or his English cousin Elizabeth I both of whom managed to govern the church without being ‘of the church’, Charles was a lay member of its congregation. [15] Moreover, it suited his sense of orderliness and duty to bring the one true Church to all his subjects so that everybody could worship from the same prayer book and in the same way. It so happened that in William Laud, he had an archbishop of Canterbury whose vision for the Anglican Church exactly matched his own. Charles’ great mistake, however, was to believe that the protestant communion in England was settled. In point of fact, it was divided by its own deliberately vague doctrine. [16]


Laud reintroduced ornamental art into parish churches, stained glass windows, crosses and even crucifixes. He gloried in religious music and put back the church organs. He raised the holy table on a pedestal and called it an altar. And he used the bishops’ secular powers in the king’s prerogative courts to suppress puritanism and enforce conformity. [17] These were all reforms guaranteed to alienate the puritans in the House of Commons and which, together with the king’s friendly policy towards Spain and his toleration of the Mass at court (for love of his French wife it must be said), raised more widespread fears — whether rationale or irrational — of a return to the Roman Church.[18]


However, it was the Commons’ motion to exclude bishops from the Lords and to remove their temporal powers that bought the dispute between the two Houses to the fore. Not unnaturally, the Lords being largely old-school Anglicans rejected this attack on the Episcopal Church. It was a dispute that was bound to occur sooner or later given the religious differences; however, the Lord’s rejection of the motion provoked the Commons to publish a declaration that the Church and the Holy service must comply with the law of the land. It was notice of a return to more austere puritan worship and a clear warning that the ‘elected’ House of Commons was not only ready willing and able to challenge the royal prerogative but was also prepared to encroach on the authority of the Lords.


The crisis came over the Christmas period 1641. The House of Commons published the ‘Grand Remonstrance’, which was a list of grievances against the king and a damning indictment of his misgovernment. Notwithstanding its constitutional importance, the Grand Remonstrance only succeeded in making things worse. The political and religious differences had become a struggle for power and increased the likelihood of war. A few days after Christmas, the balance of power tipped against the king. His puritan opponents gained a majority in the Common Council of London, which was followed by the Lord’s unexpected agreement to a petition allowing the Commons to impeach the bench of bishops en block. These, two incidents together with a supposed threat by the Commons to impeach the queen, so enraged Charles that he made a catastrophic mistake. He attempted a military coup d’état by forcing his way into the House of Commons with four hundred soldiers to arrest and impeach five of its members (Francis Pym, John Hampden, Denzil Holles, Sir Arthur Hesilrige and William Strode). The coup failed because the MPs were warned and had already left the building. The descent to war was now rapid. By the 10 January the king left his capital to prepare for what was to come. He did  not to see London again until 1648, when the Army bought him thither as a prisoner to await his trial.


The king’s dictatorial rule, his feeble and unpopular foreign policy and his religious reforms, none of which matched the sentiments of the English people were all factors that triggered civil war; though they were not the basic cause of the wars. The civil wars were fought for the sovereignty of England. It was an ancient struggle between king and parliament that had afflicted England for centuries. I believe this is what Samuel Gardiner was referring to when the blamed the inevitability of the civil war on the “… inadequacy of the intellectual methods of the day to effect a reconciliation between opposing moral and social forces, which developed their strength from the past development of the nation”.[19] Generally speaking, the Plantagenet and Tudor monarchs had managed their relationship with parliament pragmatically so as to avoid an open breach. But, by the last decade of the sixteenth century that relationship was breaking down as national and international political institutions evolved from medieval to modern paradigms. An open and a revolutionary conflict between king and parliament was inevitable: by 1640, it was probably overdue. Nevertheless, It would be wrong to think that Charles’ trial and execution were the inevitable outcome of the civil wars or that he was the victim of circumstances beyond his control. As Dame Veronica Wedgwood forcefully pointed out, he was directly responsible for his own downfall.[20] Ultimately his deceitful behaviour, his wanton disregard for the lives of ordinary people and his false views on the nature of kingship so antagonized his subjects and threatened the peace that his destruction was probably unavoidable.


God’s vice-regent

The most high and sacred order of kings is of divine right, being the ordinance of God himself, founded in the prime laws of nature, and clearly established by express texts both of the Old and New Testaments. A supreme power is given to this most excellent order by God himself in the Scriptures, which is, that kings should rule and command in their several dominions all persons of what rank and state soever… For any person to bear arms against their kings, offensive or defensive, upon any pretence whatsoever, is at least to resist the powers that are ordained by God…” [21] This quote is from the first Canon of the Book Canons 1640. It represents the Anglican Church’s considered theory of kingship. The convocation of divines, which deliberated between April and May 1640, published this canon and directed that it must be read out quarterly to every congregation, at morning prayers. It was a view of kingship that coincided with Charles’ own. He genuinely believed that God ordained him to rule over his subjects and that he was empowered with an absolute prerogative to do as he thought best for his subjects regardless of their sentiments or the outcome. This much is borne out by his modification to the traditional coronation oath, whereby he swore only to preserve the liberties of his subjects insofar as they were consistent with this prerogative. Later, he would hold himself “blameless of all actions of whatever kind which aimed at restoring his power and saving his people from the consequences of their folly.”


Charles was also an inflexible man. He once said ‘he could not defend a bad nor yield a good cause’. Veronica Wedgewood explains: “ …when he thought a cause was good he would not yield, and by ‘not yielding’ he did not mean he would yield on sufficient persuasion, or the day after tomorrow, or the year after next; he meant he would not yield.[22] He had, what Wedgwood calls, a ‘total capacity for resistance’. This is seen clearly in a letter he wrote to Prince Rupert in 1645. After the battle of Naseby Charles faced certain defeat; his nephew Prince Rupert wrote advising him to treat for peace. His reply was unequivocal “ If I had any other quarrel but the defence of my religion, crown and friends, you had full reason for your advice. For I confess that speaking either as to mere soldier or statesman, I must say there is no probability but my ruin. But as to Christian, I must tell you that God will not suffer rebels to prosper, or His cause to be overthrown; and whatever personal punishment it shall please Him to inflict on me must not make me repine, much less to give over this quarrel…I must avow to all my friends, that he that will stay with me at this time must expect and resolve to either die for a good cause, or, which is worse, to live as miserable in the maintaining it as the violence of insulting rebels can make him.[23].


We might admire Charles for having the courage of this convictions, were it not for the fact that his “extreme firmness of purpose (was) matched by an exceptional infirmity of judgement.”’[24] He was not just risking his own life, but also the lives of his subjects.   His conduct of state affairs was lamentable and his failure to understand this did not inspire their love or even affection. It is true that after the war people pitied him; but that it is not to be confused with love and devotion. In truth, ordinary people did not know him. He was by nature reserved and formal: one might even say aloof. He did not have that easy relationship with people that his father and his son enjoyed. He knew little and seemed to care less about the lives of his subjects or the state of his realm. He travelled infrequently and then not very far. His knowledge of the outside world was limited to what he was told by his narrow circle of court favourites and sycophants. Not only that, but he was untrustworthy, as J P Kenyon writes, “…it was one of (Charles’) less endearing traits that in the execution of his public duties he did not consider himself bound by the rules of honour that governed his conduct as a private gentleman…this double standard made it impossible to trust him except when self-interest ensured his fidelity.”[25]


The world turned upside-down

The civil wars changed everything, yet nothing actually changed; that is the paradox of these times. The fighting and the breakdown of normal government saw a drift towards anarchy and the founding of radical groups such as the Levellers, Diggers, Ranters and so on. These were groups of ordinary people who rejected the status quo ante bellum and held revolutionary ideas about democracy, republicanism and communism. The rise of these sectaries, though revolutionary at the time, changed nothing since the long-term beneficiaries of the civil wars were the royalists and the propertied classes, who in 1660 rejected almost all the social, constitutional and political ideas thrown-up in the previous eighteen years. Moreover, although these new ideas and their supporting groups caused a deep rift in the English Puritan ranks and tended to dominate the debate about what to do next, they did not themselves affect the king’s fate. Charles’ downfall was bought about by two factors outside his opponents control: one was old, the other new. His treachery was common knowledge; it is the reason why a constitutional settlement could not be agreed. This was not a new factor; it could have been anticipated. However, the emergence of the New Model Army as the most powerful military and political force in the three kingdoms was a new and decisive factor in the eventual outcome.


On the 5 May 1646, shortly after the defeat of his last field army, Charles arrived, not unexpectedly, at the Scottish bivouac in Southwell [26]. The decision to give himself-up was not an acknowledgment of defeat but a calculated ploy to sow doubt and suspicion between the English and Scots [27]. He hoped that at best he might be able to draw the Scots onto his side and at worst the English would suspect the Scots of concluding a separate peace. Charles was not of course negotiating genuinely with the Scots. He would never sign the covenant but thought there was no harm in pretending he might. “ For [Charles] politics was a matter of surface diplomacy and winning help from his fellow sovereigns abroad, of dividing Presbyterian and Independent, of Scots from English by bribes of power and favour.[28]


He knew that his best hope lay in exploiting the current and emerging rifts in the enemy camp. Meanwhile, he needed time for his other plans to mature. Charles never abandoned a project simply because a new one was to hand; he wanted to keep the military option in case there was an opportunity to renew the war. [29] Throughout this period he was in contact, sometimes separately often simultaneously, with the French, the Spanish and the Pope for military or financial aid in the civil war. In addition, he wrote to the royalist earl of Montrose, encouraging him continue the fight in Scotland and to James Butler marquis of Ormond about plans to bring an Irish army to mainland Britain.


On the 13 July 1646, the Committee of the Two Kingdoms put the first concrete proposals to Charles. The Newcastle Proposition was an attempt to reach a constitutional settlement that secured parliamentary sovereignty, imposed Presbyterianism on the English and the covenant on the king but preserved the monarchy and the existing social order. It was drafted on the premise that the king was beaten and that he knew it, and further that he would accept a compromise for his own good and the peace of the realm.  The committee was wrong. Charles would have rejected their proposition outright were it not for the fact that he needed time for his dissembling to bear fruit; therefore, he prevaricated in the hope that something else would turn-up. He was also wrong; nothing turned up from the Continent or elsewhere.


On the 30 January 1647, the Scots, convinced at last that Charles would not sign the Covenant and desperate for cash to pay their army, handed him over to the English for £400,000. There is no disguising the fact that Charles was a captive, albeit a privileged one. He was housed in relative luxury with many servants to maintain his household. Although his freedom of movement was curtailed, he was not held incommunicado, which allowed him to continue sending coded letters and secret correspondence to his fellow conspirators, expressing his intention to renege on any agreement with the English and Scots, and his hope that a foreign army would yet invade his kingdom and restore his authority.


Meanwhile, the relationship between the English Parliament and the Army, already frosty, deteriorated further during the spring of 1647. The first civil war coupled with a poor harvest and a recession in trade had dislocated the civil government and almost ruined parliament.   In an attempt to economize they voted to disband that part of the New Model Army not required for service in Ireland, without their arrears of pay.  It was a foolish mistake since the Army, already suspicious that the negotiations with Charles might cost them the fruits of their military victory, became mutinous over the arrears of pay. The New Model Army was unique. It was the most effective fighting force in the three kingdoms but it had, in modern parlance, been radicalized by the Levellers and the other extreme groups among its ranks. Of particular concern to its commanders was the effect of the Leveller’s revolutionary ideas on the Army’s rank and file, who were no more prepared to accept religious despotism than royal tyranny. When ordered by parliament to disband, the soldiers refused. They would obey their officers but not parliament. The situation was dangerous. Fairfax and Cromwell did not agree with the Leveler’s left-wing views but they were faced with military anarchy at the precise moment that it seemed possible the civil war might resume. [30] Perforce, therefore, they backed their soldiers’ demands for restitution of their rights.[31] The trick, which Cromwell carried through  superbly, was to retain the trust and confidence of  the  loyal (but concerned) soldiers whilst weeding-out the Levellers and the mutineers. Thus was he able to return the Army to a condition of discipline and good order, which was just as well in view of what lay ahead.


Charles accepted a modified version of the Newcastle Proposition in May 1647, ten months after he first saw it.  The Presbyterians in blissful ignorance of Charles’ true intent to renounce their accord as soon as he could [32] and fearful of the danger posed to them by a belligerent and confident Army declared immediately that the proposals were a ‘fitting basis for an accommodation’.[33] Unfortunately for them, they  were too late. On the 4 June 1647 Cornet George Joyce, on the pretext of securing the artillery train at Oxford and accompanied by five hundred soldiers, rode to Holmby House where the king was and took him into Army custody. It is not clear what Joyce’s orders were and who gave them to him but there is little doubt that both Fairfax and Cromwell realized the importance of securing possession and control of the king’s person [34]. Ten days later the Army published a declaration asserting its right to oppose parliament in defence of its rights. Furthermore, the soldiers, who refused to disband without full satisfaction of their political and financial grievances, bought charges against eleven Members of Parliament, whom they alleged were overthrowing the peoples’ rights and obstructing justice. The soldiers claimed to speak for the people because they were not “…merely mercenary soldiers, brought together by the hopes of pay and the fortunes of war; the peace of our country, our freedom from tyranny, the preservation of due liberty, the administration of judgement and justice, the free course of the laws of the land, the preservation of the king, the privilege of parliament, and the liberty of the subject, were the main things that bought us together.“[35] Nonetheless, the Army’s occupation of London on the 6 August 1647 was an obviously dangerous and illegal interference in the government of the realm. The reasons for taking such drastic action were threefold. First, political necessity: there was a genuine fear (which as it turned out was justified) that the constitutional settlement accepted by parliament would lead to a renewal of the civil war. Second, the Army was probably more representative of the Commons’ constituencies than parliament.[36] Third, London was already in the grip of Presbyterian rioters who had to be pacified.


After a futile attempt at reconciliation with parliament, the senior officers in the Army negotiated directly with the king. The ‘Heads of Proposals’ put forward by the Army were ahead of their time. They removed the Crown’s direct authority over parliament and substituted its ‘influence’; they bought the Commons under constituency control and widened the electoral franchise; they provided for biennial parliaments with a maximum length and put the Army directly under parliamentary control. It was entirely foreseeable that the king would reject these terms. In typical ostrich fashion, he convinced himself that the Heads of Proposals were the work of a few ambitious officers and were not supported by the Army at large. [37] By the end of September 1647 it was clear that the king had rejected the Army’s constitutional settlement. Cromwell was now in a difficult position since he still believed it was possible to do business with the king and continued to try and reach a settlement that preserved Charles’ honour but was consistent with a restriction of his prerogative. A rift was now developing between Cromwell and the Army over what to do next. The private soldiers had lost all faith in the king’s sincerity. In October Charles rejected any compromise and withdrew his parole. He had been in further secret negotiations with the Scots, who had changed sides. It was the revelation of the secret correspondence between Charles and the Scots concerning the possibility of a Scottish invasion of England to restore Charles’ throne that convinced Cromwell that the only course now was to deliver the English nation from oppression and slavery. [38] In November the Army proposed a vote of ‘no address’. There would be no more negotiations or even communication with the king [39].   The king responded by trying to escape.


By the start of 1648 Charles was a prisoner in the real sense. The involvement of the Scots raised the spectre of civil war, which became reality in the summer. The royalists made common cause with the Scots and the English Presbyterians to invade England in an effort to restore Charles to his throne. It was as well that the New Model’s discipline had been restored because it was England’s only credible defence; fortunately it was enough. Cromwell with a large contingent of the New Model Army routed the duke of Hamilton’s royalist Scottish army at Preston on the 17 August 1648; whilst, Sir Thomas Fairfax with the remainder of the New Model Army defeated royalist risings in Kent and Essex. By the 27 August 1648 the second civil war was over. Thereafter, events moved relatively swiftly to their bloody conclusion


Even before hostilities had ended, the Presbyterian majority in parliament repealed the vote of no address and prepared to renew negotiations with Charles. Time was of the essence for them, since they realized that whilst the Army was busy fighting royalists they could not interfere with a Presbyterian settlement. It was the Treaty of Newport that bought the Presbyterians down and sealed the king’s fate. [40] Parliament ignored the Army’s remonstrance and continued ‘lenient’ negotiations with the king.   On the 5 December they repudiated the actions of the Army and accepted Charles’ terms for his restoration. The next day (6 December), Colonel Pride with a regiment of soldiers cleared parliament of all Presbyterians, leaving only a ‘rump’ of supporting Independents. Within a week, the king was bought to Windsor under guard ‘ in order to bring him speedily to justice’.


A patient martyr

The King” said Algernon Sidney “can be tried by no court, and this court can try no man”. Sidney, a parliamentarian war hero with republican leanings and one of the Commissioners selected to judge Charles Stuart, was in no doubt about the pretension of the High Court of Justice. Cromwell is reputed to have replied “ I tell you, we will cut off his head with the crown upon it.” It is perhaps an exchange we should take with a pinch of salt, since if killing the king was the object why bother with a trial? Assassination would do the trick just as well. A tragic accident, a sudden malady or fever, or he could be shot while trying to escape (Charles had tried a number of times). Those were possible options for disposing of an unwanted king. Indeed, historically, deposed monarchs could expect to meet an unnatural and lonely end in captivity, rather than to die peacefully in their bed. Court Martial followed by a summary execution was another option. The cavalier generals Lisle and Lucas had been so tried and executed after the siege of Colchester. As a captured enemy commander, Charles enjoyed no special immunity or privilege under the international law of arms. The summary execution of traitors and rebels on the battlefield or soon afterwards, was a feature of English internal wars since the time of Edward I. [41]


‘The purpose of victory was to enjoy peace; a captured enemy commander, especially if untrustworthy or in a position to renew the strife should be put to death’; that was the philosophy behind international martial law in the mid seventeenth century, as was the old maxim that a dead man cannot renew a war. [42] Had they wished, the Commons and the Army could have applied this logic and the law to their conflict with Charles. Yet they eschewed both these options in favour of a public trial with all its associated cost and risks. The soldiers of the New Model Army kept their discipline and risked their own lives to protect the man who had fought against them so bitterly. I will come to the legal impediments shortly, but I want to consider the trial of Charles in that context because, in my opinion, it refutes Clarendon’s allegation that despite its grandiose title and process, the trial was no more than a pretext for ‘king-killing’. The ‘great business’ was done openly and not ’in a corner’; moreover, there was a possibility of acquittal.  The Commissioners were not unanimous in their resolve to bring the king to account,  nor in their aversion  to him. There was some wavering amongst their ranks which only irrefutable evidence of guilt could calm. I do not suggest that the chances of an acquittal were great since this was in reality a political trial; nonetheless, it was a risk that the Commons and the Army need not have taken.


Although the Army had earlier discussed bringing the king to trial on the basis of lex talionis (the law of retaliation), no serious thought was given to his trial before November 1648. It was, of course, impossible to try the king for treason, or for anything else under English law as it was applied for centuries past. The king being the fountain of all justice was immune from prosecution. The king himself noted the legal advice he had received from Sir Orlando Bridgeman “…by the letter of the law, all persons charged to offend against the law ought to be tried by their peers or equals. What is the law if the person questioned is without peer?[43]


Nonetheless and despite the seeming legal impossibility of bringing the king to trial, there was a mood within the House of Commons and in the Army that a way had to be found, in the broader interests of justice, to bring the king to account for the mischief, he had caused. The justification for such a trial is twofold. First, it is retribution for the innocent blood spilt in two civil wars: the second being more reprehensible that the first. Second, it would serve as a warning to would-be tyrants that the monarch was not above the law of Magna Carta. It is important to bear in mind that none of this implied the removal of hereditary monarchy; the aim was to reform the king, not ruin him. The idea that heads of government can be charged with war crimes for waging an ‘unjustified’ war has particular resonance for the UK today; not because such a prosecution is taking place, but because it isn’t. In the sixteenth century, however, it was a concept ahead of its time.


The House of Commons ignored the Lord’s opposition and passed an Act creating a ‘High Court of Justice for trying and judging Charles Stuart king of England’. [44] Lacking, as it did, the concurrence of the Lords and royal assent, it was not legitimate legislation within the strict, conventional construction of the law. However, it claimed a higher legality in that it sought to enforce the rule of law and in particular the ancient concept enshrined in Magna Cart, that the king was not above the law of the land. It is a principle that we take for granted today but in the sixteenth century was controversial. The preamble to the Act is worth quoting extensively since it illustrates this point quite well: “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, 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, and that besides all other evil ways and means to bring the design to pass, he has prosecuted it with fire and sword, levied and maintained a cruel war in the land, against the parliament and the kingdom, whereby the country has been miserably wasted, the public treasure exhausted, trade decayed, thousands of people murdered, and infinite other mischiefs committed[45]


The trial began before a packed courtroom at Westminster on Saturday the 20 January 1649 in the afternoon. The first order of business was to arraign the king; that is to say, to put the charges to him and take his plea. The charge as drafted by the prosecution accused the king of traitorously and maliciously levying war against parliament and ‘the people therein represented’. It was a broad charge embodying accusations of tyranny, treason and murder, and that Charles was responsible for all the “…rapines, burnings, spoils, desolations damages and mischiefs to this nation acted and committed in the said wars, or occasioned thereby.”[46] The charge was made up of fourteen specific offences with dates and places, which the prosecution had to prove.


The Charge having been read, Charles was required to give his answer: was he guilty or not guilty? His response was entirely predictable; he challenged the jurisdiction of the Court (indeed of any human court) to judge his actions. Standing up, he said he would fain know ‘by what authority he had been bought hither’; until he knew this, he could not answer the charges. Charles, who claimed ‘to know as much law as any gentleman in England’, had put his finger on the nub of the problem as he saw it. The king was above the law. John Bradshaw, the Lord President of the High Court, replied that king was required to answer the charges by the authority of the Commons in Parliament on behalf of the people of England ‘by which people you were elected king’. It was a silly mistake, since, as Charles pointed out, ‘England had been a hereditary kingdom these thousand years’ and there were no Lords present to validate the trial. [47] What should have been an arraignment degenerated into a quarrel about jurisdiction, during which the king made some eloquent points and Bradshaw blustered. It continued in this vein for about an hour until Bradshaw adjourned the hearing. Thus it went on: for two more days Charles refused to plead to the charge. In truth, the jurisdiction point, though not improving with repetition, induced some wavering among the ranks of the Commissioners; Charles sounded so reasonable; whereas the court sounded so unreasonable. On the second day, Bradshaw was better prepared to deal with an argumentative king. He asserted the authority of the court; Charles was not allowed to challenge its authority or to give his reasons. The charge was put to Charles once more but again he refused to answer it. Bradshaw, frustrated ordered him to be taken away; his parting shot hit home ”Sir, you are not to have liberty to use this language. How good a friend you have been to the laws and liberties of the people, let all England and the world judge” The constitutional significance of the refusal to allow Charles to dispute the court’s authority is that it recognized the House of Commons as the source of legislative power in England. [48]


However, Charles’ refusal to plead had serious consequences for him and for  the High Court . Bradshaw’s timely assertion of judicial authority had calmed some nerves on the bench but not all. Ideally, the court needed to hear the prosecution’s evidence of Charles’ guilt. There were thirty-three witness proving the specific offences set out in the charge; moreover, the prosecution possessed Charles’ correspondence detailing his attempts whilst still negotiating with his opponents to bring a foreign power to England and restore his absolute authority. This was ‘evidence of his violence and ill will’ towards his English subjects to contradict his oft-repeated claim to speak for their rights and liberties.


The prosecutor’s application that Charles should be convicted pro confesso unless he answered the charge was not meant seriously. The intention was to provoke Charles into answering the charge, so that the trial could proceed and the prosecution’s evidence presented in public. The reality was that Charles did not have a viable defence to the charges on their merits. His best, indeed his only, hope was to successfully challenge the court’s jurisdiction. He made one slip when he was almost drawn into defending his conduct during the civil wars on the grounds of self-defence, but otherwise he kept his guard up. The decision to convict him pro confesso (as though he had admitted the charge), whilst understandable (it was the common law), was a misjudgment; if instead, the court had treated Charles contumacy as a not guilty plea, the prosecution could have presented their evidence, which the king would have to refute or accept.  He could defend himself, or stand mute while the prosecution proved his guilt. The ploy failed; Charles continued his defiance and was, perforce, condemned pro confesso


The Commissioners who tried Charles were sincere men but they were not professional judges and the trial exposed their limitations in that regard. They had correctly anticipated the king’s challenge to their authority and were unanimously resolved that he must not be allowed to do so. John Bradshaw did his loyal best to implement the agreed strategy; however, his repeated refusal to acknowledge that Charles’ had any grounds for challenging the court’s authority resulted in an unseemly disputation, which makes uncomfortable reading even today. Instead of proceeding as though there was nothing unusual in the court’s conduct when there plainly was, the Commissioners “…might have done better to assert, even to boast about the novelty of their procedure. In that case Bradshaw could have elucidated their intention in the most stirring language at his command, instead of trying to proceed correctly according to the common law, which was evidently not applicable.[49]


Having condemned the king, the Commissioners adjourned to consider the sentence. On the 24 January, John Cooke the Solicitor General took the depositions of thirty-three witnesses (many of whom were royalists) proving the king’s guilt of the specific crimes in the charge. The following day, those witnesses were called to court to prove their depositions on oath. These were then read aloud in public to the Commissioners After hearing this evidence and reading the kings incriminating correspondence, the Commissioners concluded that he had committed capital crimes. The death sentence was confirmed unanimously the next day; but in a concession, borne more of hope than expectation, the Commissioners agreed to reconsider their judgement if — even at such a late stage — if the king submitted to the courts jurisdiction  . On Saturday 27 January 1649, Charles was produced to the High Court to hear sentence. It was Bradshaw’s duty to give the courts reasons for the sentence. However, Charles asked leave to speak to the Commissioners in the privacy of the Painted Chamber before sentence was passed. After a brief interchange with the king, Bradshaw concluded that in fact he was still being contumacious and rejected his request. In his reasons, Bradshaw made a number of points that attest to the justness of the proceedings. First, he pointed out that the king’s theory of kingship was erroneous and he had not ruled according to the law of the land. Furthermore, he was not above the law. Under the ancient laws of England lex was rex. Second, he reminded everybody that in the past, tyrannical kings were called to account by the barons (He was referring to king John in 1215 and the depositions of Edward II and Richard II.). Third, this is not new but ancient law and it is implied in the coronation oath, which is a contract and bargain ‘made by the people’. Fourth, where the people have no remedy against tyranny “the parliament were to do it”. Finally, he highlighted Charles intention to destroy parliament to the detriment of the law and liberties of the people. It was adjudged “…that the said Charles Stuart, as a tyrant, traitor, murderer and public enemy, shall be put to death, by the severing of his head from his body”. Hearing his doom, Charles protested but Bradshaw was implacable and ordered him to be taken down: the end was nigh. [50]


Bradshaw was making an important distinction between the person of the king, the office of king, and the kingdom of England. It was not a new concept in 1649, though it may have been a surprise to those who seemed to have forgotten it. The differential between king, crown and land is inherent in Magna Carta, which binds English monarchs to the rule of law. It was also a distinction made by the duke of York during his rebellion against the Lancastrian regime in the 1450’s. It was the rationale behind the appeal of the Lords Appellant in 1388 (The Merciless Parliament). In 1459 at the Parliament of Devils, Henry VI managed to reassert royal authority against Yorkists rebels who complained of Lancastrian misgovernment. However, it served only to convince York that Henry VI had to be removed from the throne, which was an act that would guarantee a dynastic civil war. Cromwell and the Commissioners of the High Court of Justice faced a similar dilemma in 1649. Charles’ intransigence and duplicity drove them to conclude, albeit reluctantly and in stages, that unless he  was removed from the throne there would be no peace in the realm; moreover,  if the king was successful, freeborn Englishmen would be no better off than slaves.



Unlike the dethroning of previous English kings, Charles I was not immediately followed by another king. His tyranny and character was such that the Army would not countenance another Stuart on the throne. The king’s execution was followed by an eleven-year hiatus in English monarchy, during which England was governed variously by a republican parliament, by the Army and by the Lord Protector Oliver Cromwell. His death in 1658 prompted the Stuart restoration, which followed in 1660. The restoration settlement was similar what had been proposed at Newcastle thirteen years before. Charles II was, like his father,  an absolutist and the restoration saw a renewal of the conflict between the king and parliament for sovereignty. For a time it threatened the establishment of constitutional government. However, the achievement of the Long Parliament had demonstrated the power of parliament and given parliamentarians the resolve and the strength to challenge Stuart notions of absolutism. In 1688, Charles successor, the Roman Catholic James II was deposed by the ‘Glorious Revolution’ and replaced by the Protestant William of Orange, who co-reigned with Mary Stuart at the invitation of and by the consent of the English parliament. The idea of a constitutional monarchy in England was now unassailable. [51]


[1] Roger Lockyer (Ed) – The Trial of Charles I (The Folio Society 1959) p.133: this is a contemporary account of Charles I’s trial and execution taken from the memoirs of Sir Thomas Herbert (1606-1672) who was the groom to the Bedchamber of the king during his captivity; and also from the ‘Historical Collections’ of John Rushmore (1612-1690) who was variously a lawyer, clerk-assistant to the House of Commons, and secretary respectively to Lord Fairfax and Oliver Cromwell. Rushmore collected state papers of the period, which he published periodically from 1659 as ‘Historical Collections’. They are amongst the most important primary sources of the period. ’ The opening paragraph of this article is taken from Rushmore’s account of the king’s execution.

[2] Geoffrey Robertson- The Tyrannicide Brief (Vintage Books 2006) p.384, note1: Robertson refers to the figure of 800,000 dead in the British Isles (mostly in Ireland) citing Diane Purkiss – The English Civil Wars: a peoples history (Harper Press 2006).

[3] William Juxton (1582-1663) was bishop of London in 1649. He was appointed archbishop of Canterbury in 1660, on the restoration of Charles II.

[4] Lockyer, p.137

[5] JG Muddiman (Ed) – The  Trial of Charles I (Wm Hodge & Co 1928) pp. 153-54. Muddiman draws attention to the fact that there is no evidence that the executioner said ’behold the head of a traitor’, which is usual on these occasions. It is also notable that nobody acclaimed the accession of the new king (‘the king is dead. Long live the king’). The explanation for this is that Parliament had that very morning passed a statute prohibiting such an acclamation and there were sufficient roundheads present to enforce it. The report of a ‘groan’ of anguish arising from the multitude as the axe fell is a restoration embellishment.

[6] Robertson, p.200

[7] See for both articles

[8] In 1388 and in 1459 House of Lords exercised their statutory discretion to declare whether or not doubtful cases were non-statutory treason and, in the particular circumstances of 1388 and 1459, to condemn and pass sentence on the accused.

[9] The Treason Act 1351 (25 Edw. 3 Stat. 5 c.2): the ‘Great Treason Act’ was still the law in 1649 (it is still the law today). Prior to Charles’ trial treason was defined exclusively as an offence against the king, not by the king.

[10] David Carpenter – Magna Carta (Penguin 2015), p.53

[11] The Long Parliament sat from 1640 until 1653, when Cromwell dispensed with parliament altogether. It actually passed primary legislation forbidding its dissolution without its consent; the Long Parliament was not, therefore, formally dissolved until 1660 when the monarchy was restored.

[12] EN Williams – A Documentary History of England (Pelican Original 1965) pp.36-48 reproduces the terms of the Petition of Right 1628 (ref 3 Cha.1, c.1), which set out non parliamentary grievances; it was intended to balance the royal prerogative with liberty of the subject. Although Charles claimed at the time that parliament ‘ had neither intention not power to hurt his prerogative’ and that the petition was merely a re-statement of his subject’s ancient liberties, it was a parliamentary defeat for him and a restriction on his prerogative.

[13] The measures passed by the Long Parliament formed the basis of the constitutional settlement in 1660.

[14] Godfrey Davies – The Early Stuarts (Oxford 1959, 2nd edition) p104

[15] JP Kenyon – The Stuarts (Fontana 1966) pp.75-80. Kenyon’s essay on Charles I provides a useful summary of the religious issues confronting the Long Parliament.

[16] CV Wedgwood – The King’s Peace (Fontana 1966) p.85

[17] Wedgwood – The King’s Peace p.89. When the Act of Supremacy 1558 (1 Eliz c 1) and the Act Uniformity 1559 (1 Eliz 1 c 2) established the unified Anglican Church in England, many points of doctrine were left deliberately vague. This was because Elizabeth I was not so much concerned with  her subjects inner beliefs as their outward show; she wanted Protestant doctrine to be a ‘framework’ of beliefs that as many of her subjects as possible could conform to, without offending their consciences. It was a weakness in Charles I’s character  that he lacked the maturity to realise that some flexibility in protestant doctrine was necessary to preserve unity and to keep the peace.

[18] Nevertheless, neither the king nor the archbishop of Canterbury was a papist. The Anglican Church was intolerant of Roman Catholicism.

[19] SR Gardiner – History of the Great Civil War (1894) (Windrush Edition 2002), four Volumes: Vol 1, p.1

[20] Lockyer, intro, p.5

[21] Davies p.94

[22] Wedgwood – The King’s Peace p.85

[23] Austin Woolrych- Battles of the English Civil War (Pan 1966), p.139

[24] Lockyer, intro, p.9.’

[25] Kenyon pp.75-80

[26] Gardiner, Vol 3, pp. 92-102. Charles had been negotiating with the Scots prior to surrendering to them. He offered nothing but a vague promise to give ‘full contentment’ to the Church question. In return the Scots gave verbal promises inter alia that they would secure his safety and honour, that they would not ask him to do anything against his conscience and that they would take his part in the event that the English refused to restore his authority. Their complicity in Charles escape from the encircling New Model Army is clear from intercepted correspondence.

[27] The English and the Scots made common cause in 1644, when they realised their joint interest in opposing Charles’ ambitions. The Scots sent an army to support parliament and a joint committee of the two kingdoms was formed to settle war strategy etc.

[28] CV Wedgwood – The King’s War (Fontana 1966) p.485

[29] Gardiner, Vol 3, pp.13-19.

[30] Gardiner, Vol 3, p. 259 note 3 and p.265, note 1; There were genuine fears that the English Presbyterians in parliament with the agreement of the Scots would attempt to move the king from England to Scotland and to ‘set him up as the head of an (invasion) army there’

[31] Cromwell disagreed with the Levellers. He supported his soldiers out of a natural loyalty to the men he had fought with and because he deemed it the best way to keep control of the situation. He did, however, punish mutiny ruthlessly. There were some in the army with extreme republican views who were suspicious that Cromwell would sell them out.

[32] Gardiner, Vol 3, p.166; citing correspondence between the king and bishop Juxton, in which Charles swore ‘as God is my witness’ to restore the Episcopal Church once his own authority was restored.

[33] Ironically, this agreement triggered the second civil war in which the English Presbyterians and the Scots joined forces with the cavaliers against the independents and the Army

[34] The balance of scholarly opinion is that Joyce was acting on the orders of the Agitators, since neither Fairfax nor Cromwell are likely to have put a junior cornet in command of five hundred men on a mission to abduct the king. Indeed, Fairfax sent a colonel down to take command as soon as he heard of the abduction. That doesn’t mean, of course, the two generals were not well pleased with the outcome.

[35] Peter Young and Richard Holmes – The English Civil War 1642-51 (BCA Ed1974) p.274; the brigadiers Young and Holmes are quoting from ‘an apologeticall Declaration concerning the army…TT E.401 (24)’. See also Gardiner Vol 3, p.293; who quotes that the Army “…was no mere mercenary army, hired to serve any arbitrary power of a State, but called forth and conjured by the several declarations of Parliament to the defence of their own and the peoples’ just rights and liberties.” They contended that an erring parliament must be corrected as much as an erring king.

[36] Christopher Hill – God’s Englishman (Penguin 1990) p.54. In 1644, the Long Parliament realised that to defeat the king they would have to arm and tax the ordinary people. They also realised the risk that this entailed, since it might encourage the common folk to think of themselves as the equal of gentlemen. Of course, many thousands of the ‘commons’ already considered themselves at least the equal of gentlemen; however, their opinions were suppressed. The civil war loosened the restraints placed on the expression of radical ideas and encouraged the creation of political movements to champion them; it had ‘turned the world upside down’. It is in this context that the New Model Army was recruited from the ranks of decent ordinary people. What is remarkable for the time is that that many of these men were volunteers (certainly the officers and the cavalry), which went against the grain at this time as most army recruits were pressed men from gaols and from the lowest sort of men. Moreover officers were appointed on merit and not on the basis of their wealth or family tree. In one of his most famous (and quotable) comments, Cromwell praised the ‘plain’ men of the New Model: “I had rather have a plain russet-coated captain that knows what he fights for and loves what he knows than what you call a gentleman and is nothing else. I honour a gentleman that is so indeed.” When a parliamentary grandee complained that the ‘officers were not men of estate but common men, poor and of mean parentage’, Cromwell enunciated his policy in no uncertain terms: “It may be that it provokes some spirits to see such plain men made captains of horse. It had been well that men of honour and birth had entered into the employment, but why do they not appear? Who would have hindered them? But since it is necessary the work must go on, better plain men than none at all.”

[37] Gardiner, Vol 3, pp. 330-33 and 341-42; contains a useful discussion of the negotiations between the king and the Army.

[38] Gardiner, Vol 4, p.6

[39] Gardiner, ibid

[40] Gardiner Vol 4, pp.210-223

[41] Summary justice administered under the authority of the Constable of England or the Provost Marshall was prevalent during the rebellion that deposed Edward II, the Revolution of 1399 that deposed Richard II, and during the Wars of the Roses.

[42] Robertson pp.133, 391 note 23-25 for a résumé of the law.

[43] Robertson, p.129: quoting from Robert Partridge – ‘O Horrible Murder’: the trial, execution and burial of Charles I (London 1998) p.49. Robertson makes the point that this argument, which is ‘legalistic to a fault’, was easily disposed of by the prosecutor  “…on the basis that no man — not even the king — was above the law. Magna Carta — the law to whose letter Bridgeman referred — was John’s guarantee to the barons that they would be tried by peers (i.e. barons) and not by the king: if a king were charged with a crime, then it would not breach the spirit of the `Great Charter to try him before as distinguished and representative group of judges as parliament could put together.” Subsequent legislation interpreting Magna Carta has made it clear that ‘peers’ means social equals (i.e. a jury) and furthermore, ‘free man’ means a man or woman ‘of any estate or condition’ and ‘law of the land’ means treatment according to due process (see Carpenter pp. viii, 271 & 301.) I am not sure that the last part of Robertson’s last sentence necessarily applies to the Commissioners who tried Charles. See CV Wedgwood – The Trial of Charles I (Fontana 1966) pp.109-118, for a robust assessment of the judges. Although, they were not all lowborn, as royalist propaganda suggests, there were a fair number of known ‘rogues and knaves’ among their membership.

[44] Davies pp.160-161; Gardiner Vol 4 pp.287-291; the Lords opposed an ordinance for the trial of the king. Consequently on the 4 January 1649 the Commons passed three resolutions, described by Gardiner as ’strangely democratic’, asserting their supreme power to enact and make law as the representatives of the people and that anything they declare shall have the force of law notwithstanding that has neither the concurrence of the Lords nor the assent of the king. It was the first step in the establishment of the Commonwealth of England.

[45] John Phelps – A true copy of the Journal of the High Court of Justice for the trial of King Charles I as it was read in the House of Commons, and attested under the hands of Phelps, Clerk to the infamous Court 1683 (1684) pp.1-2. The Act was passed by the Rump on the authority of the resolutions voted on the 4 January 1649: see note 43 supra.

[46] Phelps pp. 29-32; Muddiman pp.26-29; Lockyer pp.81-86: see also Robertson, Chapter 8, pp.135-50 for a modern QC’s commentary on the charge against Charles.

[47] Nicholas Pronay and John Taylor – Parliamentary Texts in the Later Middle Ages (Oxford 1980) at pp.36-37; whilst acknowledging the lords’ judicial function, Pronay and Taylor note that parliament ‘as a whole’ was not predominately a court of law since the Commons had no judicial powers. The House of Commons was exclusively a political forum, which is the point Charles is making.

[48] See note 43 supra

[49] Wedgwood – The Trial of Charles I, p.153

[50] Gilbert Mabbott – A Perfect Narrative of the Whole Proceedings of the High Court Justice in the Trial of the King in Westminster Hall (anonymous 1649), pp.10-15; Muddiman pp.122-131: Muddiman is much criticised by Geoffrey Robertson for his bias, which may or may not be true. However, I found Muddiman to be a useful source for ‘Bradshaw’s Journal’, which is the official transcript and report of the proceedings produced for parliament in 1650 (Appendix A at pp.193-230); The kings reasons for challenging the courts jurisdiction (Appendix B pp.231-232). Although the king was stopped from giving these reasons at the trial, he wrote them down and they were published on the 5 Feb 1649; John Cook’s prosecution speech (Appendix C pp. 233-260). Cook never got the chance to make this speech, as the king was convicted pro confesso. It was published in Feb 1649; and Charles’ last speech from the scaffold (Appendix D pp.260).

[51] David Ogg – England in the Reign of Charles II (Oxford1956) in two volumes.

The contemporaries of Henry VIII


HenryVIII220px-Francis1-1 ivan the terrible

Francois I of France died in the first quarter of 1547, after a reign of over thirty years, leaving only one legitimate son, Henri II. Whilst thought of as a cultured monarch, a patron of the arts and a linguistic reformer, he took an ambiguous approach to religious reform, (in which his sister Marguerite de Navarre took an interest). He organised several heresy executions (at the Place Maubert in 1523, in Paris in 1540 and at Merindol in 1545). The male line of the House of Valois became extinct in 1589, after his three grandsons had reigned.

Ivan IV of Russia was born in 1530 and is thus more a contemporary of Henry’s children. He succeeded his father as Grand Duke of Moscow in infancy and was made the first Tsar in January 1547, weeks before Henry VIII’s death and months before Francois I’s. He is also recorded as a patron of the arts but was increasingly mentally afflicted as his life progressed and was thus responsible for many deaths, including that of his elder son. Ivan, thereby known as “the Terrible”, is thought to have contracted seven marriages although he annulled three as the Russian Orthodox Church had a lifetime limit of four spouses. Like Henry and Francois, he died in his fifties and was succeeded by his son, Feodor I. In fact Ivan left two sons but Feodor was predeceased both by his daughter and his half-brother, ending the Rurik dynasty proper in 1598.

Although Henry VIII and Francois I were both descended from Charles V (and may have shared a mistress (Mary Boleyn), Ivan IV was not as closely related to either.

Only Richard III ever broke the law…(apparently)

This post is provoked by a comment I came across the other day that claimed that the tens of thousands of people killed by the Tudor dynasty somehow don’t count as it was all done within the law. Albeit the rough-and-ready version of the law as it was at that time.

Snags with this argument:

  1. A number of highly unpleasant 20th century dictatorships and war criminals would have offered a similar defence. This does not make them moral or admirable.
  2. Henry VIII, certainly, was not above changing the law after the offence was committed and then applying the change to the offence. Examples, the Bishop of Rochester’s unfortunate cook; Lady Rochford – in the latter case the law was changed to permit the execution of insane people! If this is ‘legality’ it stinks.
  3. What about people disposed of via Acts of Attainder? Examples Katherine Howard, Lady Rochford, Margaret Countess of Salisbury. These people were not even given a drum-head court martial, let alone a trial, and absolutely no opportunity was given to them to mount a defence. Legal? After a fashion.
  4. Tyrants make their own laws as they go along. Anyone can stay within the law if they can amend it as they choose.


The Problem with ‘Usurpation’ (re-blogged from

With my long-standing interest in treason and usurpation, I was fascinated to see the video of the mock trial of the Magna Carta barons staged in the wonderful surroundings of Westminster Hall on 31 July 2015.* I use the term ‘Magna Carta barons’ loosely, and indeed the trial itself could address only one arbitrary, early point in the long journey of the development of that charter which eventually gained its famous title. This was the moment in time at which King John had, after much ducking and diving, sealed the charter in June 1215 and immediately reneged by getting Pope Innocent III to repudiate it.

Though doubtless there will be historians who disagree, I take it – as did the script of the trial – that King John had hitherto behaved in a manner so thoroughly unacceptable as to be termed tyrannical. In giving his judgement, The Hon. Stephen Breyer from the USA cited John Locke’s (albeit anachronistic) assessment that for his subjects to have the right to rebel, a king should be seen to have systematically refused to adhere to the law of the land. Of course no method of testing a king’s behaviour in a court of law existed in 1215, but for his rule to be considered truly tyrannical I think this criterion would be taken as read.

Legal frameworks of the time would have been governed by the weight of precedent, and certainly the judges at our mock trial took the view that John himself had been ‘made king’ by a legal process. This process included religious ceremonial with sacred oath-taking, not only oaths of allegiance but also the coronation oath sworn by the king himself. In consequence of King John’s breaching of the latter, the rebellious barons invoked a long-standing custom and – therefore – legal right known as diffidatio, i.e. they exercised the right of a free man to repudiate his oath of loyalty to his overlord for a justifiable reason. Underpinning this right of diffidatio was the recognition that fealty was a two-way street: that for a subject to keep his oath, the king must do the same.

In our modern age, when promises made are routinely broken, and ‘God-fearing’ is no longer a term to be taken literally, the significance of an oath sworn while invoking the presence of God is scarcely understood and seldom respected: consider the context of judicial process, which is one of the few surviving circumstances when such oaths are still routinely encountered (and routinely flouted). Yet in the Middle Ages, as I have tried to indicate in writings such as my Small Guide to the Great Debate, the process of oath-swearing was one of the pillars of mediaeval society. It was a crucial matter if either party abandoned their solemn oath.

The bonds of this mutual compact defined the relationship between king and subject, already long-established by the 13th century, and gradually developing throughout the ages. It is this promise on the part of the king that is most often forgotten in the cries of ‘usurper!’ that are so widely bandied about in relation to certain monarchs; and it is key to my repeatedly asserted argument that most often the term ‘usurpation’ is a misnomer that merely reflects the prejudices of the person using it.

In pre-Conquest England there was in place a history of election of kings by the Saxon equivalent of Parliament (the Witangemot), based on the fundamental requirement of the office to perform a mutually understood function: the defence of the realm and its people. This was gradually extended to include wider responsibilities, notably for the proper administration of justice. In return, the king was entitled to call upon his people to perform whatever was understood to be due to enable him to fulfil such responsibilities. The principle that the king had a duty to perform a job of work continued to be understood for many centuries, and it was only by analogy with succession from father to son in other areas of life that a similar expectation developed in relation to the throne. Although kings often tried to influence who succeeded them, there was never any ‘law of succession’.

Requirements such as embodying the fount of justice as well as the office of leader and commander throw a clear light on crises of succession like the deposition of Edward II, Richard II and Henry VI who fell short of expectations. An even more relevant case is that of the conflict between Stephen and Matilda. Matilda might be the only surviving legitimate issue of Henry I, but his decision to make her his heir was self-serving and ultimately catastrophic: she was not born into an age when a woman could don harness and lead an army in the field. Returning to the mock trial of the barons, a question raised by the presiding judge exemplifies an abiding misapprehension on this point. Why, asked the judge, did the barons in 1215 not choose to replace John with his son, Henry (later Henry III), then aged seven? The question answers itself when you are not blinded by the assumption that the crown was governed by some imagined law of father-to-son succession: in a time of turmoil and civil strife, when the very rule of the land needed to be taken into strong hands, what fool was going to opt for rule by a seven-year-old? That he was later able to succeed upon his father’s death (now aged nine) was principally a function of the abilities and virtues of William Marshal, Earl of Pembroke, his champion and Regent of England.

In 1399 a new dimension entered into the matter of the succession when Henry IV challenged Richard II for the crown and the latter abdicated, rather than defending his right to the death as would have been appropriate to the tradition of the warrior-king. Parliament was drawn into the front line in the disposition of the crown, going through the formal procedure of acknowledging the abdication of Richard and the succession of Henry. The new king is said to have publicly exhibited proof of his genealogy, but the record of the Rolls of Parliament is remarkably non-committal in regard to his descent, and much more specific as to the rewards of his victory over the ruinous former king:

‘In the name of the Father, Son, and Holy Ghost, I, Henry of Lancaster, claim this realm of England, and the crown with all its members and its appurtenances, inasmuch as I am descended by right line of the blood from the good lord King Henry the third, and through that right that God in his grace has sent me, with the help of my kin and of my friends in recovering it, which realm was at the point of ruin for lack of governance and destruction of the good laws.’ [Parliamentary Rolls of Mediaeval England, 1399 Part 1, vol. iii, pp.422-3.]

Here we have an echo of that same accusation as used by the barons against King John; and despite the fascinating arguments concerning precisely which line of royal descent Henry IV might have claimed, the salient point of this remarkable statement, as accepted and recorded by Parliament, was that God had favoured him in stepping in to avert the ruin of the realm. Had there existed a law of succession which stipulated primogeniture, there was in fact a royal descendant whose claim would have been superior to Henry’s: this was the young Mortimer heir Edmund, Earl of March, then the same age as the son of King John whom we encountered above. Clearly, when the option of the valorous and successful adult Henry was available, there was no support for the claims of a seven-year-old, however senior his line of descent. A child of that age, and one who lacked the support of a strong figure as Regent, ipso facto failed the basic qualification as warlord-cum-lawgiver.

It is also noteworthy that the childless Richard II, knowing that the succession to the crown was being eyed by his several uncles, had kept them guessing by naming alternative heirs at different times: another indication that primogeniture was not regarded as the primary criterion. Henry IV, once on the throne, tried to secure the succession to his line by statutory enactment in Parliament, but the view of Stanley Chrimes (in English Constitutional Ideas in the Fifteenth Century, p.24) is that this was merely declaratory and did not determine the line of succession: it recognized but ‘did not create’ Henry’s title. By the same token, it made no general provision for a public law of succession.

Only in 1460, when Richard, Duke of York came to press his claim to the throne in opposition to Henry VI, was the emphasis on primogeniture brought to the fore. York’s claim depended on it wholly – it rested on his sharing the same senior line of descent as the Mortimer heir disenfranchised by Henry of Lancaster sixty years earlier. And although Parliament made several attempts to avoid passing judgement on the matter, when forced to reach a conclusion they decided in York’s favour. There were, of course, excellent reasons for striking the bargain that reduced Henry VI to a cipher, since his inept and compliant rule had bankrupted the crown and allowed England to degenerate into a smouldering civil war.

In the case of Henry IV, could the word ‘usurpation’ be applied? The historically literate answer is no. In 1399 Richard II had abdicated rather than defend his crown to the death, effectively abandoning the throne to the judgement of Parliament which accepted Henry of Lancaster’s argument that God had helped him rescue the realm from misgovernment and lawlessness. This echoed the complaints of the Magna Carta barons, namely that the king had resiled from his sacred oath to fulfil his responsibilities to his subjects. So by these standards, and as accepted by Parliament, Henry IV cannot be named a usurper in terms of the legal structure of the day.

It was only in 1460 that Richard, Duke of York secured a decision by Parliament which established primogeniture as an acknowledged criterion for the succession. How this criterion was applied in hindsight to the Lancastrian succession raises a thicket of legal questions, the untangling of which would take someone more expert in jurisprudence than me. Clearly York’s argument was that the first Lancastrian king was a usurper, and his statement to Parliament went into extensive genealogical detail to disprove Henry’s fanciful tale that his mother’s line of descent from Henry III was senior to the line of Edward III and Richard II. However, to this inexpert observer it seems that the Parliament of 1460 stopped short of disallowing the legitimacy of the Lancastrian dynasty, which fits with their desire to reach a compromise with Henry VI. It would have been simpler, and in hindsight would have prevented much unrest and loss of life, if they had declared him a scion of a usurping line, but that would have meant deposing him. Perhaps their legal advisers balked at the idea of retrospective legislation. And York himself had always vowed himself Henry’s true subject. Whatever their reasoning, an accommodation was cobbled together which permitted Henry to keep his crown on condition that York was acknowledged as his heir apparent. I am tempted to suppose that the Lords in Parliament recognized that Henry’s mental capacity was dubious, and that it would be unrealistic to hold him to oaths he had sworn as a child which he probably no longer remembered or comprehended. Whichever way you look at it, although York’s claim of primogeniture was accepted, the deal of 1460 was unique to the prevailing circumstances; it could scarcely be regarded as a precedent, and indeed it permitted the line of Lancaster to cling to the view that theirs remained the rightful royal house of England.

Thus Parliament had signally failed to grasp the opportunity to codify any law that stipulated primogeniture (or anything else) as a qualification for the succession. As Stanley Chrimes commented, ‘It does indeed seem that no such public law existed. In the absence of a direct and competent heir, politics, not law determined the succession. Hence both judges and commons avoided the topic.’ [Op. cit. p.22.]

The effect was that however the royal family’s internal issues were decided, whether by themselves or by any outside agency, the situation remained as it was in 1215: that he who took on the sworn obligations of kingship would be held to account for how he performed them. And if he should be adjudged deficient, it was not usurpation but a necessary service to the kingdom to remove and replace him.

* For those of us who have crossed swords in the past with James Eadie, QC, there was a particular piquancy to his defeat on this occasion.


The word ‘tyrant’ is perhaps used too lightly. It is questionable whether any of the Plantagenets qualify when compared to this man:

“Galeazzo Sforza (Duke of Milan) is also known to have had a cruel streak. He was a notorious womanizer who often passed his women on to his courtiers once he was tired of them. Sforza once had a poacher executed by forcing him to swallow an entire hare (with fur intact), and had another man nailed alive to his coffin. He also had a priest who predicted a short reign for Sforza punished by being starved to death. This made him many enemies in Milan. It was also said of Galeazzo Sforza that he had raped the wives and daughters of numerous Milanese nobles, that he took sadistic pleasure in devising tortures for men who had offended him, and that he enjoyed pulling apart the limbs of his enemies with his own hands.” (Wiki)

That sounds like a real tyrant to me.

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