When I read for the English Bar in the 1960s, the legal history lecturer stopped when he reached 1649 and explained that he was now moving directly to 1660, because everything that had happened between the trial of the king and the restoration of the monarchy was a nullity.
That’s some nullity.
Sedley’s reviewing Geoffrey Robertson’s The Tyrannicide Brief, a vindication of the regicides collectively and Charles’s prosecutor John Cooke in particular. Sedley’s conclusion demurs from some of Robertson’s larger claims, but leaves one significant claim intact. (‘Bradshawe’ is John Bradshawe, the president of the court which tried Charles.)
Robertson claims too much when he credits Cooke, first in his courtroom defence of John Lilburne, then on his own arrest, with introducing the right of silence into the common law. The supposed right, which developed in the early canon law, had by Cooke’s time acquired a mythological status: widely believed in, respected in the ordinary run of cases but ignored in favour of torture when anything serious was at stake. Cooke’s fate, however, was by the time of his arrest so firmly sealed that there was little point in pressing his interrogation. Nor, I think, could Robertson make good his suggestion that Bradshawe was breaking new ground, in anticipation of Locke and Rousseau, when he said to Charles: ‘There is a contract and bargain made between the king and his people … The one tie, the one bond, is the bond of protection that is due from the sovereign; the other is the bond of subjection that is due from the subject. Sir, if this bond be once broken, farewell sovereignty.’ This embryonic notion of constitutional monarchy, looking – through a reluctantly commercial metaphor – for middle ground between traditional liberties and government by divine right, was by 1649 a commonplace of political theory. What was novel was Bradshawe’s pointing out to a captive king the consequence when it was the monarch who broke the contract: ‘Farewell sovereignty.’
When it comes to justified rebellion against over-mighty rulers, in other words, the Americans have nothing to teach us. The English did it first – and ushered in a decade of legal nullity, a short-lived no man’s land in which the impossible could become possible. I’m not (solely, or necessarily) talking about Abiezer Coppe or Winstanley, or even about the Levellers. 1649 saw a permanent defeat at Burford as well as the brief nadir of the monarchists, but it wasn’t Thermidor: Cromwell himself was venturing into terra nullius.
It was not the Bill of Rights of 1688 but Cromwell’s Instrument of Government of 1653, still lost in the official void three and a half centuries later, that first set out some of the foundational principles of a modern democracy: triennial parliaments (for a united state of England, Scotland and Ireland), not to be prorogued except by their own will; a non-hereditary Protector, empowered to legislate, tax and govern only with the consent of Parliament and to make war only on its advice; abolition of the established church, and religious toleration (except of ‘Popery and Prelacy’). But not then, or after 1660, or after 1688, did it come true.
From what I know of him, I’ve got a lot of respect for Charles Stuart as a person – and I certainly don’t think Oliver was a nice guy. But it’s not hard to choose between the two. The constitutional ferment of the English Revolution remains a landmark in the country’s history: unsurpassed in many areas, in some still unattained.