The Tyrannicide Brief

by Geoffrey Robertson

  His help extended to offering arguments on the law. This very junior barrister presented his ‘humble mite’ of legal knowledge on high treason ‘which is but as the pissing of a wren into the sea of your learned counsel’s experience’. Treason was a subject on which he would in due course become over-familiar. ‘We young lawyers’, he wrote, doubtless echoing the views of many at the Inns, conceived that the most serious article of Strafford’s impeachment was the accusation of subverting law by making it subservient to the power of the King rather than Parliament. In all treason there must either be some hostility to the King or some intention to destroy the state, so a Lord Deputy cannot be guilty for mistaking the law or governing over-strictly or even recklessly – ‘Who knows what bridle is best for any horse ’till he knows its condition?’ Cooke argued, abandoning legal Latin for a homely metaphor.

  Strafford’s trial was a sorry affair for both sides. It was conducted fairly at first, with due pomp in Westminster Hall. The King was present, his sympathies signalled by his direction that the ceremonial axe – traditionally on display in treason cases to symbolise the inevitable sentence – should remain locked up in the Tower. The ‘managers’ of the trial – MPs led by Pym, Oliver St John and young Sir Harry Vane – presented the charges to the peers of the realm. Strafford was permitted counsel – the best constitutional lawyer in the Kingdom, Matthew Hale, defended him – and his answers, both written and oral, sounded convincing. One witness, who had claimed to overhear him say (from twelve yards’ distance) ‘the King’s little finger should be heavier than the loins of the law’, was quickly proved to be stone deaf. The witnesses from Ireland, reeking with malice, were sarcastically dispatched.

  But as the weeks went by, the cumulative effect of the evidence left no doubt that Strafford had enriched himself greatly both in land and in finances from his deputyship and that many of his decisions striking at local worthies, particularly at the money-grubbing ‘new English’ grandees with friends among the MPs, had been made arbitrarily and without due process, however much they may have been justified. Strafford soon found it politic to promise to retire from public service if the verdict went in his favour. His basic argument – and it was undoubtedly correct – was that which had been sketched out by Cooke: the charges, even if proved, could not amount to high treason because his abuses of power did not constitute an attack on the monarch on whose behalf they were committed. As for his comments about the worthlessness of parliamentarians, there was obvious point in his response that ‘if all choleric expressions of that nature should be accounted treasonable, there would be more suits of that kind flying up and down Westminster Hall than common law’.45

  After three weeks the outcome of the trial hung in the balance. The evidence had damaged Strafford, but not terminally. The ‘smoking gun’ that was produced by the prosecution, Vane senior’s note of the advice Strafford had given to the King about bringing over the Irish army, was ambiguous. Prejudice aside – although prejudice could not be put aside by the Puritan nobles who sat in judgment on a man whose death many of them thought would be in the interests of the state – there was insufficient evidence to convict. The longer the trial continued, the more the murmuring public who had been led to expect a death sentence felt they were being cheated of their prey. At this point a new MP, Arthur Haselrig, made the first of his many controversial contributions to public life: he introduced into Parliament a bill for the attainder of the Earl of Strafford. This device, when passed by both Houses, became a statute which decreed conviction and sentence of death.

  Parliament was the highest court and could ordain death by statute, without a trial and subject only to the King’s approval – an unlikely prospect, of course, given his support for the earl. The Bill passed the Commons without difficulty, and it was then presented to the Lords by the newly appointed Solicitor-General, Oliver St John. He adopted the same inflated rhetoric which had characterised Coke’s prosecution of Ralegh, describing Strafford as a ‘beast of prey’, whose extermination was of no more moment than the killing of a fox or wolf. ‘He that would not have had others to have a law, why should he have any himself?’ Strafford could only raise his eyes and hands towards heaven – a reply, the court reporter notes, that was all ‘dumb eloquence’.46 But jurisprudentially, Parliament was widening the legal definition of treason, hitherto a crime involving denial of allegiance to the King, to include political attacks on his realm – e.g. by subverting the laws or abusing delegated powers. This extended definition would leave open the possibility – unforeseen at this time – that treason might be committed by a king who attacked another sovereign institution – i.e. parliament.47 The Lords eventually voted 26–19 to pass the Act, but it required the King’s ratification, and Charles had written to Strafford a few days before its passage with the solemn promise ‘that, upon the word of a king, you shall not suffer in life, honour or fortune’. Two weeks later, Charles ratified the Act. On hearing the news, Strafford famously spluttered, ‘Put not your trust in princes.’

  The earl’s beheading was a great public event: 100,000 people attended, their eyes raised to the high scaffold on Tower Hill. Wenceslas Hollar drew the scene with almost photographic accuracy: the audience was sober and well dressed with many gentlewomen present. Puritan England attended in force to celebrate the demise of ‘Black Tom Tyrant’. Many travelled from outlying counties as if to witness a political epiphany. Strafford stood for the bishops whose greed for power was suffocating their Church, and there was a fitting moment of pathos when old William Laud, the arch-heretic, stood at his prison window in the Tower to bless Strafford as he was taken to his execution. There was a roar of approval as the executioner held aloft the severed head with the cry ‘Behold, the head of a traitor.’ There were bonfires and bells and by nightfall the appearance of a new symbol of hope: a lit candle glowing in every Puritan window.

  Strafford’s fate had been sealed by the behaviour of the King who could not comprehend the determined demand for change in government policy. The Puritans who flocked to the execution craved a sign that he would support the way of life they had developed over almost a century since the end of Mary’s bloody reign. His failure to empathise would lead them to the perception that only Parliament could safeguard their liberty – a Parliament which was regular rather than occasional and which would have a much broader function than merely voting taxes. The mistake made by the Stuarts was to perceive the Puritans as bent on destruction of monarchy and therefore as a movement to be suppressed. There is no evidence, as late as 1641, that any Puritan leader envisaged anything like a republic. They wanted Strafford dead and buried to symbolise change and in order that his undoubted genius would never again be available to counsel the King: as Essex, the leader of the pro-Parliament faction in the Lords, put it on the eve of the fatal vote, ‘Stone dead hath no fellow.’

  It is therefore remarkable that John Cooke stood up to be counted as a Straffordian just as his career was getting under way. But he knew first-hand that some of the charges were false, and he genuinely admired those aspects of Strafford’s policy which provided more equal and speedy justice for the poor in Ireland. The ‘young lawyer’ in him was sufficiently honest to acknowledge that Strafford was not guilty of high treason as charged. That did not mean that arbitrary and tyrannical government, or the levying of war against the people of England, could never constitute treason as the law then stood. It meant that the King’s Deputy, acting with royal approval, could not be convicted of a crime of disloyalty to the King, either because the King could do no wrong (the discredited ship money ruling) or else because the wrong in such circumstances should be attributed directly to the King. The youthful barrister, fresh from his disputations in the capitals of Europe, must have noted the momentous but logical consequence of that alternative.

  Cooke’s courage in helping Strafford was all the more remarkable because he had no political truck with his cause: the others who aligned themselves with the earl were out-and-out
royalists, staking their future on the King’s fortunes, or grand lawyer/MPs like Edward Hyde (who became Lord Chancellor Clarendon) and Orlando Bridgeman, later the Lord Chief Justice who presided over the regicide trials. But Cooke, humbly born and Puritan, could expect no favour from the King, and his identification in 1641 as a Straffordian explains why his practice dried up for a time and he fell into debt – he had to eke out a living tutoring law students.48 He missed out on parliamentary briefs during the Civil War – although he was frequently recommended for employment in parliamentary matters, his support for Strafford cast doubt over his loyalty to the cause.49 There was danger too, in Cooke’s stand: Pym’s faction had begun to experiment with street propaganda, inciting crowds to appear in New Palace Yard chanting ‘Justice’ whenever Strafford or his judges passed through the hall. After the Commons vote, wall posters appeared pointing the finger at named Straffordians and describing them as ‘enemies to their country’. One was ‘Mr Cooke’. It was a common enough name (there were several barristers and an MP who bore it) but it should have alerted the young lawyer to the danger of letting his conscience dictate his support for public enemy number one.

  3

  A King in Check

  THE EXECUTION OF the Earl of Strafford was a turning point – or no-turning-back point – in the struggle for parliamentary power. That the King could be forced to bend his absolute will to a political demand backed by demonstrations on the streets of London convinced Pym and his supporters, now in the majority, that now was the time to pursue the agenda they had devised after their ship-money defeat. Judicial independence must be secured. Never again should judges bow to pressure from the King: their duty was to invoke Magna Carta and the common law to protect the liberty of the subject against the King. Parliament would have to sit in regular sessions to protect Protestant worship from popish innovations and bishops, and against the threat (much exaggerated) from Catholic courtiers surrounding the Queen. These parliamentary presumptions were anathema to Charles: he would never forgive himself for consenting to Strafford’s death and would never forgive Parliament for demanding that consent. From this point onwards, he devoted himself to stratagems to turn the clock back to the time of his personal rule. King and Parliament thus set themselves on a collision course, and over the next five years there would be lethal collisions in the muddy fields of middle England – from Edgehill to Marston Moor to Naseby – which took the lives of one in every ten adult males in the kingdom. Several hundred thousand died in ‘collateral damage’ from siege warfare and disease and starvation: for years to come, the streets of London would be lined by maimed and bandaged beggars, the veterans of these wars.1

  Parliament had pressed on in the wake of Strafford’s execution, clipping the King’s prerogative by abolishing his Court of Star Chamber, because its judges ‘have undertaken to punish where no law doth warrant’. Henceforth, the King must come to the ordinary courts of justice, staffed with judges whom he could not sack other than for gross misconduct. This historic Act, premised on Magna Carta, separated the powers of executive government and the judiciary: no longer could the royal prerogative be exercised to try or imprison the King’s subjects. It also marked the abolition of torture, which had long been condemned by common lawyers as ‘something practiced by the French’ but which had been a regular Star Chamber punishment, inflicted upon political and religious dissidents. The Star Chamber was the last tribunal in England to accept evidence obtained by torture. (In 2005, the Act which in 1641 abolished the Star Chamber was invoked to stop the UK government using such evidence in its anti-terrorist courts). Ship money, too, was in the same year declared illegal.2 All this and more the King suffered in comparative silence (he spent much of his time networking in Scotland, sounding out the possibility of armed support against Parliament) but on his return in December 1641 he was asked to cross one bridge too far. He was presented with the ‘Grand Remonstrance’, a long indictment by Parliament of all the evils of his reign thus far – intimidation of judges, toleration of bishops and their Laudian innovations, selling offices and monopolies, and so forth. It was prefaced by the usual disingenuous protestations of loyalty and by the pretence that all grievances were caused by bad advice from courtiers who were papists or traitors – hence its insistence that bishops must be excluded from the House of Lords and that the King’s councillors should in future be approved by Parliament. The Grand Remonstrance passed after a bitter and prolonged debate between Pym’s faction and the moderates led by Edward Hyde. What gave the narrow victory to Pym was panic rather than principle – the vote followed a few weeks after dramatic news reached London of a Catholic uprising in Ireland.

  The domain formerly ruled by Strafford’s iron will had come apart at the seams. The native Irish had combined with ‘Old English’ Catholics to wreak revenge upon the newly settled Protestants from England and Scotland with a genocidal ferocity. The impact of atrocity pictures – woodcuts of ‘wild Irish’ skewering pregnant women on their pikes and barbequing babies – was heightened by rumours that the King was seeking support from Strafford’s Catholic army, which was implicated in the massacres. The newsbooks reported that over 100,000 English Protestants had been slaughtered. The number was closer to 5,000, but the atrocities perpetrated by pro-royalist Catholic leader Phelim O’Neil, who pretended his revolt was authorised by Charles, were not invented.3 The impact of the news in London was dramatic: it swung many moderates – John Cooke included – against the King.

  This steeled Pym’s supporters in Parliament: not only did they pass the Remonstrance, but they had it printed and distributed to the people. Charles hit back by ordering his Attorney-General to indict Pym and four other MPs – the ship-money heroes John Hampden and William Strode, the new radical Arthur Haselrig and the old Presbyterian intemperate Denzil Holles. They were accused of high treason, in that ‘they have traitorously endeavoured to subvert the fundamental laws and government of the Kingdom of England’ – a tit-for-tat charge echoing their indictment of Strafford, but a dangerous precedent for Charles himself. The next day, 3 January 1642, he arrived at the Commons at the head of 400 armed loyalists, to arrest the MPs personally.

  It was a grand guignol moment when the King entered the House, whose members all knew that the five MPs had left. They had been tipped off by a sympathetic lady of the court, in time to slip away and take a boat from Westminster to their friends in the City. Charles, oblivious to their escape, commandeered the Speaker’s chair, standing upon it to cast his eyes over the faces of the MPs, who had all doffed their hats in ritual reverence. Like a bad-tempered schoolmaster he shouted for Pym and he called for Holles, but answer came there none. The King then turned to the Speaker, William Lenthall, and asked whether the five MPs were in the House. Lenthall was not a brave man, but the fate of his lickspittle predecessor Finch helped to fashion an immediate and immortal reply. He fell at the King’s feet:

  May it please your Majesty. I have neither eyes to see nor tongue to speak in this place but as the House is pleased to direct me, whose servant I am here, and humbly beg your Majesty’s pardon that I cannot give any answer than this . . .4

  The King could no longer contain his anger. ‘Well, since I see all the birds are flown, I expect you will send them unto me, as soon as they return hither.’ Charles stormed out, while MPs emboldened by their Speaker’s defiance pursued him with cries of ‘Privilege! Privilege!’ It was a cry taken up by the London mob the next day, when the King in a last desperate gambit rode into the City to demand that its aldermen hand over the famous five. But the City was fiercely protestant: its walls were still plastered with posters bearing the Commons’ ‘protestation’ of the previous year, and its ‘trained bands’ – a part-time army of apprentices – were commanded by a Pymsupporting MP. By 10 January, Charles could bear the animosity of his unruly capital no longer: he left it, never to return in freedom.

  And so to arms the country’s men were called – as ‘cavaliers’ (probably an abusive
corruption of caballero – a Spanish trooper given to torturing Protestants) and ‘roundheads’ (from the crop-headed city apprentices who supported Parliament, although the name might have stuck from a slighting reference by the Queen to John Pym’s round and balding head). The King sent Henrietta Maria to Holland with the crown jewels, to purchase arms and foreign mercenaries. Loyalty to him was firm in Wales and the south-west and north of England, whilst in Ireland the rebellion had forged a powerful Catholic ‘confederacy’ which volunteered its services to the King – at the time, a great embarrassment to Charles (since it was responsible for the massacres of English protestants) but a potential source of reinforcements. The King retained the loyalty of most of the Lords, and of MPs who shared the moderate views of his new chief counsellor, Edward Hyde. The parliamentary forces drew most support from London and the home counties and the near north-east, although it would be a mistake to think of a clear geographical division – counties, towns and families were split in their allegiance.