In previous posts, I have written about how some of the most influential intellectuals supporting Donald Trump have argued that the best form of government is a divine right monarchy like that of the Stuart kings in seventeenth century England, which is why they have told Trump that he should rule as a king. The U.S. Supreme Court has supported this by deciding that as president, Trump has absolute immunity from criminal prosecution, and so in effect he is "a King above the law." Trump has been happy to accept the crown and to sign the executive orders that empower his Administrative State to execute his will while violating constitutional rights such as due process of law.
It would seem, then, that now is the time to study why and how English revolutionaries overthrew the Stuart dynasty--first through the trial and execution of King Charles I in 1649 and then through the Revolution of 1688 that deposed King James II.
In this post, I consider the trial of Charles I.
RESISTANCE TO CHARLES I
With the death of James I in 1625, Charles I became King of England, Scotland, and Ireland. Throughout his reign, Charles provoked the opposition of the English Parliament, which resisted his ruling as an absolute monarch. Particularly unpopular were his levying of taxes without Parliamentary consent and his coercive enforcement of high church Anglican practices against the opposition of Reformed religious groups such as the Puritans and Presbyterians.
In 1628, Parliament approved the Petition of Right, which charged the King with violating certain "Rights and Liberties of the Subjects." The Petition asked that the King should no longer force anyone to pay loans or taxes without the consent of Parliament, or to be detained or imprisoned without due process of law and lawful judgment of his peers, or to be compelled to receive soldiers or mariners into their houses, or to be subject to martial law contrary to the laws of the land.
Although King Charles formally accepted this Petition, he rejected Parliament's interpretation of this Petition as limiting the king's prerogative--the exercise of absolute discretionary power without Parliamentary consent. After dismissing Parliament in 1629, Charles governed by a purely personal rule without Parliament until 1640.
In 1639, when Charles attempted to impose his Anglican religious practices on Scotland, he provoked a massive resistance by the Scottish Reformed religious believers who insisted on a Presbyterian church governance by elders and deacons rather than an Anglican governance by bishops. Charles ordered the raising of armies in England and Ireland for an invasion of Scotland, but the attempt at an invasion failed.
Wanting to launch a new campaign against Scotland, Charles needed financing that could only come from Parliament. In 1640, Charles was forced to call for a new session of Parliament, which met in April, but then less than a month later, he dissolved what became known as the "Short Parliament." A few months later, he summoned a new Parliament that came into session in November (the "Long Parliament"). Most of the members of this new Parliament were opponents of the King.
In 1641 and 1642, the conflicts between the King and Parliament had become so severe that by the middle of 1642, both sides had begun military preparations for Civil War. On August 22, 1642, Charles declared war on Parliament by raising his standard outside Nottingham Castle. By June of 1645, the King's army was decisively defeated by Parliament's New Model Army at the Battle of Naseby. In 1646, Charles surrendered to a Scottish army. Later, the Scots turned him over to Parliament.
Leaders of Parliament negotiated with Charles, attempting to get his agreement that if he were reinstated as King, he would become a constitutional monarch--with no control of the army, sharing policy with Parliament, and making a religious settlement that would favor Calvinism but with some degree of toleration for other religious sects. During this time, Charles was secretly plotting to rally his foreign, English, and Scottish supporters for a second civil war. The New Model Army leaders intercepted Charles' letters to his wife telling her that he would not keep any agreements he might make with the army or Parliament once he had the power to break them.
In July of 1648, Charles gave the signal for a Scottish military force under the Duke of Hamilton to invade England, hoping that a second civil war would restore his absolute power over England. This Scottish army was quickly defeated by the New Model Army under the military leadership of Oliver Cromwell and Thomas Fairfax.
The costs of these civil wars were devastating. Historians estimate that about ten percent of the entire population of England died in the wars. Often Charles ordered his military commanders to kill innocent civilians and soldiers who had surrendered.
JOHN COOKE FOR LEX REX
From September to early December in 1648, the Presbyterian majority in Parliament negotiated with the King, hoping that he would agree to a constitutional monarchy in which his kingly power would be checked by Parliament. But many of the leaders of the Army thought the King could not be trusted to negotiate in good faith. Eventually, debates within the Army over the King's fate moved towards some kind of trial of the King and possibly his execution for his crimes. When the majority of the House of Commons voted to negotiate a settlement with the King and rejected the Army's proposal for a trial, Colonel Thomas Pride led a troop of soldiers to Westminster Hall where they arrested the Presbyterian MPs who had supported negotiations with the King (later called "Pride's Purge"). This left Parliament under the control of an Independent majority, which was soon dubbed "the Rump" Parliament.
On January 6, 1649, this Rump House of Commons passed an Ordinance for a trial of the King. Remarkably, the Commons asserted its right to make law without the assent of the King or the Lords: "The Commons of England assembled in Parliament declare that the people under God are the origin oof all just power. They do likewise declare that the Commons of England assembled in Parliament, being chosen by and representing the people, have the supreme authority of this nation" (Robertson 2005: 140). This was the first modern statement of the principle that governments derive their just powers from the consent of the people or those who represent the people.
On January 8, 1649, in accordance with the Ordinance of Parliament, the Judges of the High Court of Justice for the trial of the King met for the first time. They appointed John Bradshawe as their president. John Cooke was appointed Solicitor-General and the lead prosecutor for the trial.
Cooke prepared the indictment--A Charge of High Treason, and Other High Crimes--which he read at the first session of the trial on January 20. The indictment charged Charles with two crimes--tyranny and treason. His tyranny was said to be a violation of his "trust":
That the said Charles Stuart, being admitted King of England, and therein trusted with a limited power to govern by and according to the laws of the land, and not otherwise; and by his trust, oath, and office, being obliged to use the power committed to him for the good and benefit of the people, and for the preservation of their rights and liberties; yet, nevertheless, out of wicked design to erect and uphold in himself an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people, yea, to take away and make void the foundations thereof, and of all redress and remedy of misgovernment, which by the fundamental constitutions of this kingdom were reserved on the people's behalf in the right and power of frequent and successive Parliaments, or national meetings in Council (Gardiner 1906: 371-74).
That the King's power was limited by the laws of the land was not a new idea because Chief Justice Edward Coke had asserted this before King James I, and it was reaffirmed in the Petition of Right. But the new idea here was that if the King did not rule for the good of the people and the preservation of their rights and liberties, he was guilty of tyranny. Although tyrannical rule had been condemned for thousands of years, this was the first time in human history that a monarch was charged in a court of law with the crime of tyranny.
Charles was also charged with committing the crime of treason by initiating two civil wars against Parliament and the people therein represented--the first in 1642 and the second in 1648. The indictment listed the exact dates and locations for each time the King led a military assault in the civil wars.
For the second session of the trial, on January 21, the King prepared a statement of his reasons for denying the jurisdiction of the High Court of Justice. Although he was not allowed to read this at the trial, he had it published as a tract that was widely disseminated. He stated seven reasons why the Court had no authority to put him on trial (Gardiner 1906: 374-76).
The first reason was that God's law as stated in the Bible (both Old and New Testament) commanded that subjects must obey their Kings. He quoted one Biblical verse--Ecclesiastes 8:4: "Where the word of a king is, there is power: and who may say unto him, What doest thou?"
The second reason was that the laws of England included the maxim that "the King can do no wrong," and therefore he was above the law.
The third reason for rejecting the authority of the High Court of Justice was that the House of Commons had no authority to erect a court of judgment. Moreover, the King noted that most of the MPs in the House of Commons had been excluded from sitting in that body, and that the House of Lords had not approved the establishment of the High Court.
The fourth reason was that any claim that the people of England had authorized this court was clearly wrong because there was no evidence that the majority of the people had in fact consented to this.
The King's fifth argument was that he was speaking not just for his own right to rule but also for the true liberty of his subjects, which was secured by his government.
His sixth argument was that he had taken up arms against Parliament to defend the fundamental laws of the kingdom against those who were trying to deny the traditional powers of the King.
Finally, the King concluded by insisting that if he were to submit to the pretended authority of the High Court, this would violate "the trust which I have from God for the welfare and liberty of my people."
Notice that while the King invoked the laws of God and the laws of England as favoring his authority, he said nothing about natural law. And notice that as scriptural authority for God's law commanding obedience to kings, the King cited only one verse in Ecclesiastes, while remaining silent about those Biblical passages where God warns the people of Israel about the evils of kingly tyranny (for example, in I Samuel 8).
Notice also that while the King invoked the "trust" that he had "from God," he said nothing about having a "trust" with the people, thus implying that the King was accountable to God but not to the people.
By contrast, John Bradshawe's speech at the end of the trial before pronouncing the sentence of death on the king included a declaration of the King's contractual trust with the people:
For there is a contract and bargain made between the king and his people, and the oath is taken for the performance, and certainly, Sir, the bond is reciprocal, for as you are their liege Lord, so they are you liege subjects . . . the one tie, the one bond, is the bond of protection that is due from the subject. Sir, if this bond be once broken, farewell sovereignty! (Robertson 2005: 185).
This looks like what would later be called the idea of a "social contract" in political philosophy: the people agree to obey rulers to secure their rights and liberties, but whenever any government becomes destructive of these ends, it is the right of the people to overthrow such government and establish a new government most likely to effect their safety and happiness (the Declaration of Independence).
Charles I was executed on January 30, 1649. One week later, Cooke published his pamphlet King Charles, His Case, or, An Appeal to All Rational Men Concerning His Trial at the High Court of Justice. This was his preemptive response to what he foresaw would be the royalist propaganda effort to turn Charles into a martyr for divine right monarchy. And, in fact, on the same day there appeared Eikon Basilike--which came to be called The King's Book--a book about the devotions and sufferings of the holy martyr Charles I, whose sufferings were identified with the sufferings of Christ, their executions taking place after a trial with no legal authority, attended by soldiers and officials who insulted and reviled the holy figure. Eikon Basilike became one of the bestselling books of the seventeenth century, and it warmed the hearts and minds of many ordinary English people with the supernatural magic of the Stuarts as the divinely appointed upholder of the Anglican faith--a popular sentiment that would eventually support the Restoration of the Stuart monarchy in 1660.
To counter this kind of Royalist propaganda, Cooke had to show how the execution of Charles was justified because he had criminally violated the laws against tyranny and murder. This means that "the king is not above the Law, but the Law above the King" (6). It's Lex Rex not Rex Lex.
But where is this Law to be found? Cooke identified three kinds of law--the positive law of England, the law of God, and the law of nature (27).
The positive law was ambiguous, even self-contradictory, about the legality of absolute monarchy. On the one hand, Cooke could cite cases where the common law put legal limits on the King's power. On the other hand, he could not deny that it was a maxim in English law that "the King can do no wrong" (25).
This forced Cooke to appeal to the law of God in the Bible as the higher law. He thought that God's disapproval of kings ruling tyrannically unconstrained by law was clearly indicated in 1 Samuel 8. Samuel had been ruling as a judge over Israel. When he was old, he made his sons judges. But when they took bribes that perverted their judgment, the elders of Israel came to Samuel and complained that the sons were not good judges. The elders asked Samuel to "make us a king to judge us like all the nations." This displeased Samuel. He prayed to God for guidance. God told him to listen to the people "for they have not rejected thee, but they have rejected me, that I should not reign over them." God advised Samuel to warn the people about "the manner of the king that shall reign over them."
Samuel spoke to the elders:
This will be the manner of the king that shall reign over you: He will take your sons, and appoint them for himself, for his chariots, and to be his horsemen; and some shall run before his chariots. And he will appoint him captains over thousands, and captains over fifties; and will set them to ear his ground, and to reap his harvest, and to make his instruments of war, and instruments of his chariots. And he will take your daughters to be confectionaries, and to be cooks, and to be bakers. And he will take your fields, and your vineyards, and your olive-yards, even the best of them, and give them to his servants. And he will take the tenth of your seed, and of your vineyards, and give to his officers, and to his servants. And he will take your menservants, and your maidservants, and your goodliest young men, and your asses, and put them to his work. He will take the tenth of your sheep: and ye shall be his servants. And ye shall cry out in that day because of your king which yet shall have chosen you; and the LORD will not hear you in that day (1 Samuel 8:11-18).
And yet the elders refused to heed Samuel's warning, and they continued to ask for a king "that we may be like all the nations." So God said to Samuel: "Hearken unto their voice, and make them a king." God then led Samuel to Saul, the best young man among the children of Israel, and God had Samuel anoint Saul as God's choice for king. "And Samuel said to all the people, See ye him whom the LORD hath chosen, that there is none like him among all the people? And all the people shouted, and said, God save the king" (1 Samuel 10:24).
Cooke said that 1 Samuel 8 was "a copy and pattern of an absolute tyrant, and absolute slaves, where the people have no more than the tyrant will afford them: The Holy Spirit in that chapter does not insinuate what a good king ought to do, but what a wicked king would presume to do" (8). This showed that "for a king to rule by lust and not by law, is a creature that was never of God's making, not of God's approbation, but his permission."
"Samuel was a good judge, and there was nothing could be objected against him, therefore God was displeased at their inordinate desire of a king; and it seems to me that the Lord declares his dislike of all such kings as the heathens were, that is, kings with an unlimited power, that are not tied to laws; for he gave them a king in his wrath. . . . God permits this, he approves it not" (9).
Cooke inferred from this that all people have a right to rebel against monarchic tyranny: "all people that live at the beck and nod of tyrannical men, may and ought to free themselves from that tyranny, if, and when they can; for such tyrants that so domineer with a rod of iron do not govern by God's permissive hand of approbation or benediction, but by the permissive hand of Providence, suffering them to scourge the people, for ends best known to himself, until he open a way for the people to work out their own enfranchisements" (10).
But notice that even if 1 Samuel 8 suggests that God dislikes "kings with an unlimited power, that are not tied to laws," this chapter does not say that the people have the right to disobey or overthrow a tyrannical king. Royalist writers like Robert Filmer saw this chapter as a description of "the unlimited jurisdiction of kings" that showed
that the scope of Samuel was to teach the people a dutiful obedience to their king, even in those things which themselves did esteem mischievous and inconvenient. For, by telling them what a king would do, he instructs them what a subject must suffer, yet not so that it is right for kings to do injury, but it is right for them to go unpunished by the people if they do it. So that in this point it is all one whether Samuel describe a king or a tyrant, for patient obedience is due to both. No remedy in the text against tyrants, but crying and praying unto God in that day (Filmer 1991:35-36).
The royalists stressed the point that God chose Saul as the king of Israel and had him anointed, so that even when Saul was trying to kill David, and David had the chance to have him killed in self-defense, David refused: "Destroy him not: for who can stretch forth his hand against the LORD's anointed, and be guiltless?" (1 Samuel 26:9). What this means, the royalists argued, is that a tyrannical king can be rightly punished by God but not by the king's subjects.
But even if there is no clear Biblical statement of a law of God that allows people to resist a tyrannical king, and even if there is no clear positive law of England allowing this, it is still possible to appeal to some law of nature that might allow this. Cooke said that this law was "connatural with every man, and innate in his judgment and reason"--an innate judgment of what is required for the preservation of human life and self-defense:
That if a king become a tyrant, he shall die for it, is so naturally implied; we do not use to make laws which are for the preservation of nature, that a man should eat, and drink, and buy himself cloths, and enjoy other natural comforts; no kingdom ever made any laws for it: And as we are to defend ourselves naturally, without any written law, from hunger and cold, so from outward violence; therefore if a king would destroy a people, 'tis absurd and ridiculous to ask by what law he is to die. And this law of nature is the law of God written in the fleshly tables of men's hearts, that like the eldest sister, hath a prerogative right of power before any positive law whatsoever; and this law of nature is an indubitable legislative authority of itself that hath a suspensive power over all human laws (23).
He identified this natural law with "the unanimous consent of all rational men in the world, written in every man's heart." This appeal to "all rational men" was to reason's unbiased or impartial judgment--to "all understanding men in the world, that suffer their judgments to be swayed by Reason, and not biased by private interest." So natural law consists of impartial rules of reason for settling conflicts without any bias favoring one individual or group over others. Therefore, the king cannot be exempt from these moral rules of law: "the king is not above the law, but the law above the king" (6).
Among those who justified the trial of Charles, the most commonly cited law of nature was the law of murder in Genesis 9:6--"whoso sheddeth man's blood, by man shall his blood be shed." They noted the impartiality of this rule: anyone who murders someone shall be punished with execution, and therefore even a king who murders someone--as Charles did in the Civil Wars--shall be executed. The impartiality of natural law means that the king cannot be above the law (Robertson 2005: 161).
LOCKE ON LEX REX
Although John Locke never explicitly mentioned the trial and execution of Charles, he did repeat (in the Two Treatises of Government) all of the main arguments for why kingly tyranny violated natural law. His starting point was his claim that human nature was formed in the state of nature, where all men are free, equal, and independent, so that no man has the right to rule over another without that other man's consent (ST, 95). And that state of nature is governed by a law of nature: "Reason, which is that Law, teaches . . . that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions" (ST, 6). The execution of that law in the state of nature is put into every man's hands, who has "the executive power of the law of nature"--the natural right to punish those who violate that law (ST, 7). One of the fundamental manifestations of that natural power to punish is the power to kill a murderer, which is grounded in "that great Law of Nature, Who so sheddeth Man's Blood, by Man shall his Blood be shed," which is "writ in the Hearts of Mankind" (ST, 11).
In the foraging societies in Locke's state of nature, the laws of nature are moral rules for choosing sides in conflicts by impartial rules of action, which are enforced by the weak teaming up to compel the strong by their coordinated punishment of wrongdoers. People obey these natural laws only as long as most people see them as beneficial for themselves. So, in the case of murder, most people conclude that protection against murder is more valuable for them than the freedom to murder.
And yet it is hard to achieve the impartial enforcement of these laws of nature in the state of nature because every person is judge in his own case, and consequently judgments are often distorted by personal bias, which can create endless conflicts. When people leave the state of nature and establish a civil society with a formal government that makes, enforces, and judges the standing laws, this can provide an impartial rule of law for the fair settlement of disputes between any two individuals.
But Locke warned that this impartial rule of law was violated in an absolute monarchy insofar as the king with absolute power is above the law, which means that anyone who has been injured by the king has no appeal to any legal authority that can punish the king. In civil society, no man can be exempted from the laws. Lex Rex--the law is king. And therefore, if the king is above the laws, then he is still in the state of nature, and every man has the natural right to punish him for violating the law of nature (ST, 90-94).
Locke declared: "Wherever Law ends, Tyranny begins, if the Law be transgressed to another's harm" (ST, 202). Any officer of government who acts without legal authority in using force to invade the rights of another may be rightly opposed as we would a thief and a robber who attacks us in the street or tries to break into our house. "For the exceeding the Bounds of Authority is no more a Right in a great, than a petty Officer; no more justifiable in a King, than a Constable."
And when tyranny makes the people utterly miserable, they have a right to overthrow that tyrannical government and institute new government to secure their life, liberty, and property. Even if tyrannical rulers claim to rule by divine right, that will not be enough to forestall revolution when the people feel oppressed: "cry up their Governours, as much as you will for Sons of Jupiter, let them be Sacred and Divine, descended or authoriz'd from Heaven; give them out for whom or what you please, the same will happen. The People generally ill treated, and contrary to right, will be ready upon any occasion to ease themselves of a burden that sits heavy upon them" (ST, 224).
Nevertheless, Locke observed that the people are very slow and reluctant to give up the forms of government to which they have become accustomed, even when the rulers have made great mistakes. "This slowness and aversion in the People to quit their old Constitutions, has, in the many Revolutions which have been seen in this Kingdom, in this and former Ages, still kept us to, or, after some interval of fruitless attempts, still brought us back again to our old Legislative of King, Lords and Commons" (ST, 223).
Here Locke was probably reminding his readers of the events of 1649-1660. After the execution of the King in 1649, Parliament passed laws abolishing the office of King and the House of Lords and then declaring England to be a Republic under the rule of the Council of State and the House of Commons (the Rump Parliament). In 1653, Oliver Cromwell led the army in dissolving Parliament and then establishing an Instrument of Government that installed Cromwell as Lord Protector for life ruling with a protectorate Parliament. In effect, Cromwell became a military dictator. In 1657, Cromwell was offered the crown of a king, but he refused. In 1658, Cromwell died, and his son Richard became Lord Protector, but he was forced to resign in 1659.
Finally, in 1660, General George Monck took control of the armies in England and conspired with Charles II to restore the Stuart monarchy. A Convention Parliament dominated by royalist MPs opened in April. In May, Charles II was proclaimed King of England. In October, dozens of the "regicides"--men who had participated in the trial and execution of Charles I--were tried, convicted, and executed. This included John Cooke, who was drawn, quartered, and disemboweled.
Thus it was that the people were brought back to their old governmental forms of King, Lords, Commons, and Anglican Bishops.
Since this post is way too long, I will have to finish it in the next post.
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