The Tyrannicide Brief

by Geoffrey Robertson

  This decision generated a great controversy, which escalated when Selden discovered that the Attorney-General, under pressure from the King, had secretly entered in the official court roll a final order which had not been approved by the judges, who claimed (when questioned in the House of Lords) that they intended only to make a provisional ruling.20 It appeared, to infuriated MPs, that the King and his legal acolytes were stealthily asserting a royal right to imprison subjects indefinitely without trial, for refusing to pay an unlawful tax. Selden’s argument was endorsed by the elderly legal colossus, Sir Edward Coke (‘it weakens Magna Carta . . . Magna Carta is such a fellow he will have no sovereign’21) and fervently supported by John Cooke and his fellow students at Gray’s Inn, where seditious notes were passed around in drinking pots and an anonymous libel was printed urging ‘all English freeholders’ to refuse to pay the forced loan.22 But the judges of the King’s Bench were beholden to the King, who could sack them if displeased with their judgment or (as in Chief Justice Crewe’s case) even by an indication that they might give it against the King. That is why they ducked any decision on the legality of the exaction, and refused bail. Many more gentry – including John Hampden, Sir John Eliot and Sir Thomas Wentworth (then a leader of the opposition to the King, and much admired by Cooke) – were imprisoned until they forked out for the ‘loan’ – on any view, a form of taxation that had not been approved by Parliament.

  The MPs, blocked in the courts, tried another tactic: they offered to consent to a number of new taxes if the King would approve a Bill of Rights, to be entrenched in legislation drafted by Sir Edward Coke. It would have reversed the decision in The Five Knights’ Case by giving overriding statutory force to Magna Carta and by removing the King’s arbitrary power to imprison. Charles refused, but an apparent compromise was briefly reached by his acceptance of ‘the Petition of Right’ – not a statute, but a ‘declaration’ by both Houses of Parliament of how existing laws should be interpreted. There was to be no taxation without parliamentary consent: no forced billeting of hungry and rapacious soldiers on civilian households; no use by the King of martial law in peacetime; and most importantly, no imprisonment (as in the Five Knights’ Case) of any man ‘without being charged with anything to which they might make answer according to the law’. The King’s agreement to the petition produced bonfires and bell-ringing, but Charles had no intention of honouring it: when he heard that Parliament was preparing to remonstrate against his imposition of ‘tonnage and poundage’ he dissolved the House of Commons, expostulating that by approving the Petition of Right he had granted no new liberties nor had he agreed to limit his prerogative in any way. So the decision in the Five Knights’ Case still stood: the King could tax and imprison as he pleased, irrespective of Magna Carta and the common law.

  In 1629 matters came to a showdown when the King, desperate for more funds, recalled Parliament and invited it to approve further financial exactions. Instead, the House of Commons proceeded to debate three resolutions pointedly aimed at the King’s counsellors and advisers (it would have been treason to direct them at the King). These resolutions condemned as ‘capital enemies to the commonwealth’ any ministers who should advocate the levy of any tax not approved by Parliament, or who should – like Laud – attempt to impose innovation in religion (i.e. ‘Popery or Arminianism’). When Parliament met on 2 March the Speaker, Sir John Finch, refused to permit the debate. The King, he announced, had ordered the House to adjourn and he could not allow the motions to be put (‘I will not say I will not put it to the question, but I must say I dare not’). There was uproar: Finch tried to adjourn by leaving the Speaker’s chair, but was held down by Denzil Holles and other MPs. The doors were locked while Eliot passionately advocated the resolutions, which were passed with acclamation while the King’s soldiers hammered loudly on the outer doors.

  It was in any view an extraordinary moment in English history – Parliament’s most dramatic defiance yet of the sovereign’s will and of the sovereign’s armed officials. Simon Schama overstates it as ‘the birth of English public opinion’, although it was reported in the news-sheets and debated at taverns and meeting-places throughout the land.23 But the uniqueness of this occasion really lies in the wording of the resolutions: it was the first assertion by Parliament that a capital offence could be committed against ‘the commonwealth’, in circumstances where the principal offender, albeit immune from justice, would be the sovereign himself.

  Charles dissolved this turbulent assembly a few days later. Although incandescent with rage, he condescended to the new power of the press by publishing his decision in the news-sheets, in a lengthy diatribe against his enemies, in particular the lawyer MPs. After a typically arrogant beginning (‘Howsoever princes are not bound to give account of their actions but to God alone . . .’) his declaration accused MPs of trying to extend their privileges in ways ‘incompatible with monarchy’ – namely by setting up parliamentary committees which dared to summon his officials, and by criticising his government and his Star Chamber: ‘Young lawyers sitting there take upon them to decry the opinions of the judges,’ he exclaimed. This kind of behaviour ‘under pretence of privilege and freedom of speech’ was ‘to force us to yield to conditions incompatible with monarchy’ – by which he meant, incompatible with absolute monarchical power.24

  Charles had nine MPs arrested for disorderly behaviour in the House: they claimed parliamentary privilege, and their habeas corpus petitions were initially granted by judges who did not realise just how determined to destroy Parliament the King had become. Charles ignored the court order, and directed that the MPs should be transferred to the Tower of London, where they would be at his mercy. The price of their release, he decided, would be an abject apology and provision of sureties for good behaviour – an admission of guilt. Eliot and four others refused to grovel, and remained in prison for over a year. After deliberate delays engineered by Charles, their prosecution for assaulting the Speaker and creating disorder in the House came before the Court of King’s Bench.

  The judges knew that words spoken or actions taken in Parliament could not be punished in the courts – this privilege of free speech within the House dated back to the first Parliament of Queen Elizabeth. The MPs argued that only Parliament, as the highest court, could discipline its members and claimed their privilege in the appropriate way, by refusing to enter a plea. In consequence, the duty of the judges was to investigate their claim and indeed to uphold it (nobody doubted its validity). But instead they decided to treat the refusal to plead not as a claim of privilege but as a refusal to acknowledge the court.25 A refusal to recognise the court meant that the defendant’s silence when called upon to answer the charge must be taken pro confesso, i.e. as a confession of guilt. By this device, and after one judge had been suspended by the King because he wanted to uphold parliamentary privilege,26 the cowered bench contrived to uphold the King’s behaviour and to find the MPs guilty. They were heavily fined (Eliot a massive £2,000) and imprisoned at the King’s pleasure. Charles was not pleased to release any of them without an unqualified apology and was particularly pleased when Eliot, whom he principally blamed for inciting Buckingham’s murder, died in the Tower from consumption in 1632. His death, Eliot’s supporters would always remember, was hastened by the King’s refusal to allow a fire in his cell. Another petty act of royal spite was the refusal to allow his body to be buried in the family vault. Sir John Eliot was Parliament’s first martyr, a man who disdained to save his own life by the expedient of an insincere apology.

  John Cooke would not forget Eliot, or the ‘five knights’. The law student had closely followed the twists and turns of these cases and observed some of the hearings in King’s Bench, one of the higher courts of justice which sat in a partitioned section of Westminster Hall. Twenty years later, in framing the charge of tyranny against King Charles, Cooke recalled Sir John Eliot’s attack on the forced loan: ‘Upon this dispute not alone our lands and goods are engaged,
but all that we call ours. These privileges, which made our fathers free men, are in question. If they be not the more carefully preserved, they will I fear render us to posterity less free, less worthy than our fathers.’27 Cooke was not, of course, of the same rank and station as these valiant lawyer MPs who first defied Charles I. They were men of great estates, Puritans for the most part, backed financially and politically by barons whose ancestors had forced King John to seal Magna Carta. Their faith and their fortune gave them the courage to disobey a monarch who was abusing the law, but none of them would have dreamed of demanding a republic. They could not conceive of England ruled by other than a king: their insistence was that he should govern with the wisdom of Parliament, and under the restrictions of common law. They stood for Parliament’s place alongside the King: for its right to consent to any taxes on the class its members composed, to influence his foreign policy in a Europe beset by popery, and to ensure that he kept the faith – the Protestant faith, preferably purged of rituals and observances.

  Charles could not abide their pretensions. He dissolved Parliament and entered upon eleven years of personal rule. From 1629 to 1640 he reigned free of all irritations and provocations from Sir John Eliot’s colleagues – men of the stamp of John Pym, John Hampden, Denzil Holles and Oliver St John. A few defected, attracted by the prospect of exercising power: Thomas Wentworth joined the King’s Privy Council and later became the Earl of Strafford, while Edward Hyde, a constitutional monarchist, went over to Charles I and in due course would shepherd his son back to the throne. He had no doubt, writing later as Lord Clarendon, that the true cause of the civil war lay in 1629:

  No man can shew me a source from whence these waters of bitterness we now taste have more probably flowed, than from this unseasonable, unskillful, and precipitate dissolution of Parliament . . .28

  2

  Strafford, Ship Money and a Search for Self

  THE CRUCIAL EVENTS of the 1630s – the decade of King Charles’s personal rule, when he refused to call Parliament – can only be understood in the context of a society where everyone, from the highest to the most lowly born, was obsessed with attaining salvation. The ever-present physical pain – from rotting teeth or untreatable injuries or countless poxes – had no analgesic other than prayerful contemplation of a graceful transition to a heaven which was self-evidently too small to hold everyone. The Church of England was not seen as the result of Henry VIII’s frustrations over divorce; rather it was the true Church, arising from the ashes of the heroic divines whom Queen Mary (Henry’s Catholic daughter by his first marriage to Katherine of Aragon) had burnt at the stake for condemning the Pope as the anti-Christ. Their torments and their courage in facing death – unrepentantly and with famous last words – were required reading in a magisterial tome, Foxe’s Book of Martyrs. This was the most influential textbook, available in every school and every church, with illustrations of the true Protestant saints departing this life in the fires of Smithfield. Catholics, those dangerous devotees of the anti-Christ, must be suppressed – other than in Ireland, where they coexisted as a despised lumpen proletariat, kept down by rigorous rule and a policy of transmigration under which great estates were progressively bestowed on Protestant settlers.

  For English Puritans, Geneva was the ‘city on a hill’ both spiritually as the custodian of Calvin’s legacy (he had lived and taught there) and literally: its high towers had resisted all attacks by land armies of the Catholic kings of Savoy, most famously in l’Escalade of 1602. A substantial English community had settled there in Calvin’s time, refugees from Mary’s persecution. When Elizabeth I re-established the Church of England, it was as ‘a Protestant creed decently dressed in the time-honoured vestments of Catholicism’1 – and it was precisely such vestments that the Puritan movement sought to strip bare. Catholicism was superstition, dangerous because directed by a foreign power, and as Calvin’s successor Theodore Beza had famously said, tolerating other religions was a diabolical idea ‘because it means that everyone should be left to go to hell in his own way’. The Puritans wanted to ‘purify’ the Church by removing not only papist remnants, but all aspects of worship for which they could find no biblical support – and in the bible there is no reference to bishops.

  The bishops, led by Laud, wanted Puritans out of the Church of England, and from Charles I they had every support. In 1629 England was in the grip of economic misery unrelieved, for the God-fearing middle classes, by any prospect of political power: removing from them as well the power to worship in their church made Charles’s realm unendurable. John Winthrop, a lawyer friend of Sir John Eliot, planned a ‘bible commonwealth’ beyond the seas in New England, where ‘we shall be as a city upon a hill, the eyes of all people are upon us . . . we shall be made a story and a byword throughout the world’.2 So he wrote, mid-Atlantic, on board the Arbella, leaving a country upon which God had turned His back for a settlement where proper worship by ‘the elect’ would attract His blessing. Over the next decade, more than twenty thousand religious refugees followed, as Laud’s inquisition excommunicated congregationalist ministers in England. God did seem to favour their sails – of 198 ships which made the crossing carrying Puritan settlers between 1630 and 1640, only one was lost.3 Hugh Peters, who would be indissolubly linked with Cooke later in life and death, crossed the seas for Massachusetts, to become a minister at Salem (half a century before the witch trials which demonised the town). He travelled with young Henry Vane, who became the State’s first governor (at the age of twenty-three) and the daughters of an Essex puritan, Edmund Reade, who married into the Winthrop family (two of their descendants – George W. Bush and John Kerry – were to contest the U.S. Presidency, 370 years later). Peters played an important role in the early days of the settlement, standing up for rationality and learning against those who urged guidance by ‘inner light’ and he was the most active of the founders of Harvard College. His pious precept, ‘an hour’s idleness is a sin, as well as an hour’s drunkenness’ became a motto for Harvard freshmen. Its Board of Overseas would send him to Europe in 1641 on what was probably the first college fund-raising drive, and he promoted settlement in Massachusetts by issuing a prospectus with Harvard education as the main selling point. But Hugh Peters did not return: by then, the battle with the King drew him into the parliamentary army and in due course he became Cromwell’s personal chaplain.

  The achievements of these Puritans in Massachusetts provide the clearest example of the political and social consequences of their philosophy. They quickly abolished primogeniture, the feudal law which ensured that vast estates (including the Crown) were passed down to the eldest male. They refused to acknowledge aristocratic titles, although they maintained a social order which distinguished the gentle folk from the labourers and servants. Government was by the wise, or ‘selected’, who organised town meetings with the object of obtaining general agreement after discussion and debate. Churches were the barest of meeting-rooms, with a pulpit and no decoration other than a severe Magritte-like eye painted on the wall behind it, staring down on the congregation as a reminder of the all-seeing deity watching their every move. The sermons were long lectures which took the form of a literal exegesis of a biblical text, followed by a discussion of its true meaning. Pagan feasts and holy days that had been adopted by Christians were abolished – including Christmas and Easter. One province, New Haven, took note that the Lord slew Onan after he ‘spilt his seed upon the ground’ and so prescribed death by hanging for this sin of emission – in the very year that the King’s physician, William Harvey, discovered that hanging, by breaking the cervical vertebrae, caused ejaculation. The work ethic (‘improving the time’) ensured that the colony did not founder, although work was rigorously suspended on the Sabbath when all tools were downed – married couples were required to refrain from sexual intercourse on Sundays.

  The modern perception of the joyless Puritan comes partly from confusing them with really joyless Presbyterians, but also from the
protective self-discipline of America’s founding fathers, whose faith was ‘one of the most harsh and painful creeds that believing Christians have ever inflicted upon themselves’.4 Cooke, who was later to urge Christians to abandon cruel punishments, had to acknowledge that harsh necessity might justify harsh laws: he contrasted the punishment of death for adultery in ‘the new plantations’ with its punishment in England, where adulterers merely had to stand for a night in the pillory clad in a cold sheet.5 Certainly there was less zealotry among the leading Puritan families in England. There, the ‘unreproved joys’ of the landed gentry included ‘hunting, hawking, fencing, bowling, dancing, making music and playing chess’ not to mention conversing over strong ale with crude jokes and japes (for all its modern associations with sexual repression, Puritan writing on sex was robust and explicit – so much so that its republication became impossible in Victorian times).6 In any event there was much joy and ‘good neighbourliness’ to be had amongst the congregations which gathered around preachers and at meeting-places, a world away from the back-stabbing of the Court and the strict class divides of the country.

  There was pessimism in Calvin’s theology, of course, because original sin doomed mankind to permanent depravity. This was the first of its five principles settled by the Synod of Dort in 1619. Christ died to atone for the sins of very few (the second principle), the ‘elect’ already chosen by God, and there was nothing the unelected could do about it (the third principle). But the doctrine of irresistible grace (the fourth principle) brought daily joy, as it entitled members of the congregation to retreat into an internal ecstasy – a ‘state of grace’. Indeed, the ability to enter such a state was a hint – no more – of one’s election. The fifth principle stressed God’s infinite love and mercy and enjoined the saints-in-waiting to love each other selflessly and look after the poor and oppressed – again, the ability to manifest such love provided a premonition that the good Puritan had the nod from God. Since the elect would obviously live according to Christ’s precepts, an upright life was a necessary, but not a sufficient, condition of salvation. This was the theological spur for John Cooke’s passionate concern for the poor and sick.