The Tyrannicide Brief

by Geoffrey Robertson

  There was a degree of social divide, certainly in the armies: cavalier officers were men of ‘quality’ and birth. Cromwell’s famous preference (‘I had rather have a plain russet-coated captain that knows what he fights for, and loves what he knows, than that which you call a gentleman and is nothing else’) was soon reflected in the middle ranks of the parliamentary forces. There was a tendency for established gentry with large estates to side with the King, whilst the ‘new men’ from the professions and the tradesmen and artisans in the cities rallied to a House of Commons whose members shared their aspirations. The clearest division was religious: Puritans and Presbyterians alike mainly took up arms for Parliament. Catholics supported the King, fearing the anti-papal virulence of parliamentary supporters. So of course did the bishops and most of their clergy, and many of the Anglican worshippers who craved order and traditional ceremony. Nobody owned up to being an atheist in mid-seventeenth-century England: Henry Marten, an agnostic Buckinghamshire MP, fought for Parliament.

  What is certain is that nobody went to war for a republic, and when Henry Marten first suggested one, he was immediately clapped in the Tower.5 Instead, Parliament drew up, in June 1642, the terms upon which it required the King to govern in future. After ritual expressions of love and humility, and ritual blaming of the ‘evil counsels of disaffected men’ who had brought the kingdom to the brink of disaster, these ‘19 Propositions’ proposed a constitutional monarchy in which power would be shared between King, Commons and Lords. Parliament would have the right to approve all ministers of the government, officers of the army and senior judges. Charles must consent to parliamentary control of the army and supervision of the Church. Judges would take an oath to uphold Magna Carta and the Petition of Right and would no longer be capable of removal at the King’s pleasure. But Charles would have none of this: he replied that the House of Commons ‘was never intended for any share in government, or the choosing of them that govern’. He condemned the ‘19 Propositions’ because they encouraged the common people to think they might be equal with men of estate, thereby destroying distinctions based on family or merit – in short, they were a prescription for ‘democracy’ – a word with contemporary undertones of anarchy. Clearly, there was in the summer of 1642 no common ground: there remained only the battleground. On 22 August, in a field outside Nottingham Castle, the King declared war against those of his own people who chose to follow Parliament.

  This momentous declaration was, by eye-witness accounts, an unimpressive occasion. The standard – a flag with streamers, crudely depicting a hand pointing to the crown, with the motto ‘Give Caesar his due’ – was carried out of the castle by a troop of horse and set up in a nearby field: a small crowd heard the herald stumble over the proclamation which Charles at the last minute had decided to alter in his own illegible handwriting. Eventually the herald cried ‘God save the King!’ and called for all loving subjects to help suppress the rebellion. A gusty wind that night blew the standard down – an ill omen that was widely reported. Charles made Oxford his new capital and held court at Christchurch College: the city remained the royalist headquarters throughout the war. The first pitched battle was at Edgehill, where his nephew Prince Rupert of the Rhine, the ‘laughing cavalier’, showed his flair and his experience from the continental wars by breaking through the sluggish ranks of the Earl of Essex’s parliamentary army. The day would have been won for the royalists had not their cavalry continued its charge in order to plunder the enemy’s baggage train, allowing the parliamentarian forces to re-group and attack the now unprotected royalist infantry. Edgehill ended as a clumsily fought draw – but three thousand Englishmen were left dead on the field.

  This appalling consequence brought neither side to its senses. By the end of the first year of fighting there had been a string of royalist gains throughout the country and John Hampden lay dead from wounds at Chalgrove Field. Pym himself was wracked with terminal cancer, but this wise old Elizabethan had one last trick up his sleeve. In September 1643, a few months before his death, he brought off an alliance with the Scots. Both parties had an obsession with protecting their Calvinist-based religion and had suffered lengthy frustrations at Charles’s duplicity and unreliability. The Scots demanded a heavy price: it was a measure of Pym’s desperation that he agreed that Parliament would sign up to ‘the Solemn League and Covenant’, promising (or so it seemed to the Scots) that it would accept Presbyterianism as the basis for what would become, after their victory, ‘the Kirk of England’. This was a devious deal and unacceptable to Pym’s more radical Puritan supporters, but they had to swallow their pride for the time being, until God changed sides. The first sign of this providential development came at the battle of Winceby, where Prince Rupert’s cavalry, hitherto unbeaten in the field, was unexpectedly routed by the parliamentary horse, commanded by two officers who had never before fought together. Oliver Cromwell and Sir Thomas Fairfax had begun their sensational partnership.

  The civil war swung in Parliament’s favour. It now had the support of the Scottish covenanters, in the form of a 20,000–strong army under a seasoned General Leslie, and it had a cavalry under the outstanding leadership of Fairfax and Cromwell. At the battle of Nantwich, royalist gains in Cheshire were reversed by Fairfax, who captured one of the most proficient of the King’s commanders, George Monck. After a spell in the Tower, Monck offered to fight for Parliament (one of history’s great hypotheticals is how it might have changed if his offer had been refused). Heavy damage was inflicted on the royalists at the battle of Marston Moor, outside York, in mid-1644. ‘Give glory, all the glory, to God,’ said Cromwell, who had deserved much of it. The King’s army lost 4,500 dead, with 1,500 taken prisoner. ‘God made them as stubble to our swords.’6

  But it was a measure of the ineffectiveness of Parliament’s chief commanders – the aristocratic generals Essex and Manchester – that they failed to press home the advantage. The King partly recovered, with victories in the south and the midlands, and a brilliant campaign in Scotland by his ally, the Duke of Montrose, against the covenanters. Most dangerous of all for the parliamentarians was the possibility that the King might call upon the Catholic forces who had rebelled in his name in Ireland. Charles had not scrupled to hock the crown jewels to pay for foreign mercenaries (French soldiers, mainly, who were blamed for the high instance of royalist rape). He would stop at nothing to win the war, and the parliamentary high command was showing distinct signs of discomfort at the prospect of continuing it. In November 1644 the Earl of Manchester confronted the paradoxical position of a Parliament which fought a king it wanted to reinstall as its own commander-in-chief:

  The King need not care how oft he fights, but it concerns us to be wary, for in fighting we venture all to nothing. If we fight a hundred times and beat him ninety nine times, he will be King still. But if he beat us once, or the last time, we shall be hanged, we shall lose our estates, and our posterities will be undone.

  Manchester’s dilemma admitted of only one resolution: to hang the King. But since this was unthinkable, Cromwell’s reply was to beg the question: ‘My Lord, if this be so, why did we take up arms at first?’ Since they refused to contemplate a republic, parliamentarians had the choice either of surrendering to a king who would never accept parliamentary sovereignty, or fighting on, defeating the King and somehow reaching a new settlement that might guarantee stability. It was this idea of ‘peace through continuing the war’ that Cromwell made his theme, taken up by the ‘war party’ of MPs convinced they must push on to defeat the King outright and as soon as possible. They suspected Manchester and other Presbyterian leaders of the ‘peace party’ of spinning out the war inconclusively – to maintain their power and to lobby for post-war positions in the settlement they sought with the King.7 So the Independents persuaded Parliament to bring into effect a ‘Self-Denying Ordinance’ in April 1645, which discharged all members of either House from any military command or service. The army was to be remodelled as a professi
onal fighting force: a ‘new model’ army. It was to have a war aim that was clear and brooked no debate or appeasement: to advance Christ’s kingdom. Its mission was to scourge the land of papists, bishops and superstitious clergy and to ‘bring to justice the enemies of our church and state’.

  Thus the army was reinvented as an independent institution – a new power in the land. No longer would it be led by barely competent earls with little stomach for the fight or by one-upping MPs with rival agendas. This professional army would be under the control of one general, Sir Thomas Fairfax. He was heroic and religious, upstanding and able, inarticulate and unambitious: in all, an uncanny man. He would, of course, need to choose a deputy. He chose the best person for the job, an MP whose military brilliance, although self-taught, was undeniable. Oliver Cromwell must, Fairfax told Parliament, be excepted from the self-denying ordinance.

  The New Model Army soon engaged the King and Prince Rupert: the date was 14 June 1645 and the field was Naseby, south of Leicester. Battle began with Rupert’s familiar cavalry charge, scattering the force of a newly promoted general, Cromwell’s son-in-law Henry Ireton. But the years had not taught discipline to Rupert’s horsemen: they galloped on in search of the baggage train, whilst Cromwell and Fairfax advanced on the unprotected royalist infantry. It was Roundhead day, and this time it was decisive – 5,000 cavaliers were taken prisoner after more than 1,000 were slaughtered, while the New Model Army suffered only 200 casualties. Most importantly, the royalist baggage train was captured, with the King’s correspondence – proving him guilty of all that Parliament had suspected. He had been writing to the leaders of the rebel Irish, hoping to bring their troops to his aid in England. He had been plotting with the Queen to obtain funds and forces from France – in return, he promised what was (regrettably) anathema to most Englishmen, namely toleration of Catholics. He had, in short, been conspiring with the enemies of England, to levy war with foreign troops against his own people.

  This was treason in anyone else – and if in anyone else, why not in the King? It was a question that nobody dared ask, at least out loud, but the contents of ‘the King’s cabinet’ were soon published and diminished his support. His remaining forces were painstakingly mopped up by the New Model Army in siege after victorious siege of loyalist towns. By April 1646, Fairfax had surrounded Oxford, the King’s last redoubt.8 Charles finally recognised the inevitable. Disguising himself as a servant, he made a last humiliating exit from his high-spired headquarters and headed towards London. He reached Harrow-on-the-Hill, and looked down on his former capital. That was when second thoughts assailed him, namely that a better reception might be waiting in his northern kingdom. He struck north, and on 5 May surrendered himself to the Scottish army at Newark. The civil war was over – apparently.

  Charles I had fought it with more credit as commander than he is usually given. Throughout the four years of fighting he had headed his troops with ostentatious courage, never hesitating to rally them in the main battles, often within range of enemy musket-shot. This ‘hands-on’ generalship, in councils and court-martials and in the field, had another consequence: it indubitably fixed him with what is now called ‘command responsibility’, namely liability in law for the criminal conduct of troops which he controlled, or could have controlled had he wished. The laws of war in this period were well known. Only combatants could be killed but not after their offer of ‘quarter’ had been accepted. Women and children must be left unmolested and prisoners treated with civility: torture was prohibited and captives could be executed only after conviction by a court-martial for some recognised war crime. Prince Rupert was not a scrupulous adherent to these rules: he punished parliamentary strongholds by plundering and then burning them down. Both he and fellow royalist General George Goring were regularly accused of using poisoned bullets and allowing their troops to rape women and kill harmless citizens of towns they had besieged. In Scotland, Montrose was equally brutal. Royalist campaigns invariably left evidence of the torture and maltreatment of prisoners.

  The parliamentary forces were much better disciplined: its godly generals scrupulously punished any soldiers guilty of pillage or rape.9 But post-Naseby, an unsettling blood-thirstiness overcame Cromwell’s battle-weary troops at the Catholic stronghold of Basing House: incensed (quite literally) at its papist icons, they exulted in killing its defenders who had unwisely sought no quarter. There was an investigation, but the report was made to Parliament by Cromwell’s personal chaplain, who was more interested in celebrating the destruction of a ‘nest of idolatry’. This canon of Christianity was Hugh Peters, returned from Massachusetts, whose ability to preach the parliamentary cause and to fundraise for it, together with his position as personal chaplain to Cromwell, had made him a power in the land. Cooke met him when Peters came to preach at St Bride’s, a church off Fleet Street which the barrister would attend during the London legal term. His sermonising was a call to arms: if the enemy prevailed over Parliament, Peters warned, then very few would be spared execution. Cooke found himself in agreement: Peters, he concluded, was ‘a man of pure evangelical spirit, who goes about doing good and may be a looking glass for others’.10

  Hugh Peters was no intellectual, but he was a powerful and entertaining speaker, hiding manic depression behind manic public activity. Cromwell and Cooke were imbued with his ‘bible republicanism’. Harvard, the college he helped to found, held its first graduation in 1642: most graduates came over to England to join the parliamentary cause, together with many other young colonists. They were recruited in particular by a kinsman of Cromwell, the Reverend William Hookes, who urged them to give up ploughshares and take up swords across the sea (New England’s Tears for Old England’s Fears). In 1660, it would be alleged by the prosecution at the Old Bailey that ‘American fundamentalists’ like Peters and Vane had been sent as terrorists by the Massachusetts preachers, to persuade Cromwell to kill the King. Another emissary from the colony was Edward Winslow, who was to play a notable part in Cromwell’s administration, and George Downing, the second man to graduate from Harvad, who left his name on Britain’s most famous street. (He was to become Cromwell’s Kissinger, the arch-diplomat of the Republic who later turned into its arch-traitor, rounding up old roundhead comrades after the Restoration). The colonials, especially the Harvard graduates, were to promote ‘the new England way’ in English churches and in due course in the government of the English republic.11

  More through luck than management, the war had not spilt into London: there the city continued its business more frenetically than ever, between the twin hubs of Westminster, home to the courts, the Parliament and the army, and St Paul’s – citadel of the aldermen and merchants, surrounded by preaching-houses and the shops of Puritan tradesmen. In between, as if holding politicians and common people in equilibrium, were the Inns of Court: an intellectual market-place where any argument could be had for a price. To this haven John Cooke, chastened by the experience of supporting Strafford, had retreated to teach and to practise law according to Sir Edward Coke’s Institutes and the Christian principles expounded by Richard Sibbes. As victory followed victory in the wake of Naseby, Puritans did indeed give all the glory to God: they hoped, Cooke as firmly as Peters and Cromwell, that He had predetermined their triumph in order to prepare the way for the establishment of His government on earth. This was the period described in the Book of Revelation as ‘the Rule of the Saints’, a wholesome human interregnum crowned by the second coming of Christ.

  Cooke had spent these war years in the capital, ‘adhering cordially and constantly to the Parliament on scripture grounds and reasons of state’12 but also because of his weak frame and intellectual frame of mind (‘I was no swordsman’).13 His support for Strafford having disentitled him to Parliamentary briefs, instead he scrabbled a general practice in conveyancing property. ‘Master Cooke the lawyer’ drew up the deeds of sale for Winchester House in Southampton which John Lilburne later bought – after checking the title with Cook
e first.14 He also defended debtors, obtaining their release from prison after their arrest. He dabbled in what passed for family law, including suits for breach of promise of marriage, an area of law in which some practitioners were little better than blackmailers.

  Cooke believed that a legal profession with integrity would serve the public benefit, but the system he experienced encouraged misconduct. One typical example was of a client arrested on his wedding day for an alleged debt of £1,500: he could not raise enough bail money, so the wedding had to be cancelled. The allegation had been made out of spite, to stop the match, and Cooke had the suit dismissed, but recovered only 7 shillings and 2 pence in costs – less than his own fee. His client lost his money, his liberty and his wife – an heiress, for ‘it was the occasion of his utter undoing’. Cooke reported this case in 1646, as an example of the need for reform – both of costs of fighting malicious actions, and the ‘inhumane practice of arrest for debt’.15 So unjust was the justice system of his time that after seven years of practice, John Cooke decided to expose it publicly.

  4

  The Breath of an Unfee’d Lawyer

  REFORM OF THE law, Cooke maintained, was the ‘one great thing that my honoured friends in the army told me they fought for’.1 The ‘soldier’s catechism’ issued in 1645 by the New Model Army included as a war aim ‘the regulating of our Courts of Justice, which have been made the seats of iniquity and unrighteousness’. Oliver Cromwell certainly agreed: ‘The law as it is now constituted’, he complained to Colonel Ludlow, ‘serves only to maintain the lawyers and to encourage the rich to oppress the poor.’2 Opposition to the King had been fomented almost entirely by lawyer MPs, yet ironically the consequence of their victory was to unleash an unprecedentedly vitriolic attack upon their profession, whose privilege and status ‘encountered the most searching critique they have yet sustained in the long course of English history’.3 Abolition of the Star Chamber had ended censorship and Parliament never managed to put the genie of free speech back in the bottle – as Milton predicted, the attempt of the Presbyterian MPs in 1644 to reintroduce censorship was rather like the exploit of the gallant farmer who sought to keep the crows out of his field by shutting the gate. The result was a flood of print – George Thomason collected 12,548 pamphlets from 1642 to 1649 – and, after Naseby, much of the vitriol was about the law and the lawyers.4