The Tyrannicide Brief

by Geoffrey Robertson

  Captain Lilburne fought valiantly in Cromwell’s troop at Marston Moor, but left the army in 1645 to fight a new enemy – the parliamentary Presbyterians, led by Denzil Holles and his old mentor, William Prynne. These humourless and comparatively conservative MPs had a majority in the Long Parliament (which had lost about 40 per cent of its members through defections to the King) and they were becoming very anxious, as the war turned Parliament’s way, to deliver on the Covenant with the Kirk which had been Pym’s price for Scottish armed support. The Presbyterians had been the first to reimpose censorship, inspiring Milton’s immortal cry for press freedom, the Areopagitica. In January 1645 the House of Commons had approved a plan for uniting the kingdoms in Presbyterian worship and Prynne insisted that there must be no toleration either of Anglicans (Laud, old and irrelevant, they cruelly put on trial and then to death) or of Independents, a post-Naseby group of ‘war party’ MPs called ‘Independents’ because they wanted a decentralised church broad enough to support separate congregations.

  A serious breach in parliamentary unity was slowly opening, and Lilburne, born to stir, determined to widen the gap. He libelled leading Presbyterians and was briefly imprisoned for sedition, choosing John Cooke as counsel to seek his release on bail. Lilburne and his ‘Levellers’ appeared at this point to be propagandists in the Independent cause rather than extremists, and the House of Lords decision to hear Lilburne’s appeal was meant as a concession to this party, which had a significant number of MPs and was widely supported by both officers and men in the army. It would rectify what everyone thought was a miscarriage of justice by the hated Star Chamber, provide the popular Captain Lilburne with some recompense for his wrongful conviction and serve to emphasise the arbitrariness of the King’s former rule. The Lords were not prepared to suffer Lilburne in person but they chose the two advocates of whom he could least complain. Bradshawe was a respected and leading barrister with a powerful presentation. If the argument he presented was devised by the radical intellect of John Cooke, Lilburne could be guaranteed a good day in court.

  Back in 1638, Lilburne’s punishment – pillory, whip and prison – had been ordered by the Star Chamber not because he had been found guilty of the offence it suspected – smuggling seditious books – but because he had refused to take the oath or to answer the judges’ questions about his movements and associates. Lilburne had accused the Star Chamber, comprised of the King’s ministers and bishops, of ‘trying to ensnare me, seeing that the things for which I am imprisoned cannot be proved against me’. Cooke’s argument, accepted by the House of Lords, was that it was ‘contrary to the laws of nature and the Kingdom for any man to be his own accuser’. Lilburne’s sentence was quashed and he was awarded £2,000 in compensation for his wrongful imprisonment (a sum conveniently extracted from the forfeited estates of wealthy royalists). The rule against self-incrimination that Cooke proposed later became known as ‘the right to silence’: it would live on as one of the foremost civil liberties guaranteed by a common law in over fifty Commonwealth countries and would in due course be entrenched in the fifth amendment to the US Constitution and in the rules of international criminal courts. It contrasts starkly with inquisitorial systems which punish suspects for refusal to answer questions by officials, and it has undoubtedly protected innocent detainees through the ages against making false confessions while frightened or disoriented after arrest or in panicked response to aggressive questioning. Bentham complained that it was the first law that criminals would pass for their own benefit, but even he admitted its value in forcing law enforcement officials to hunt for objective evidence rather than procuring a confession through torture or ill-treatment.

  This was a momentous case – Cooke’s first ‘cause célèbre’. The coincidence of the hearing with the publication of the Vindication made his name – and made him enemies. Some powerful barristers resented his attacks on ‘favourites’ and their own professional monopolies. But in his late 30s, after six difficult years of graft, he had established himself – sufficiently, at any rate, to take a wife. On 12 September 1646 he married Frances Cutler at St Olave’s in Hart Lane, a well-to-do church where Samuel Pepys was later to meet his wife. Post-sermon socialising was a form of speed-dating for the devout, and Cooke had decided it was better to marry than to burn. Besides, he was deeply attracted to Frances, a fellow-congregationalist: their faith, in God and each other, would soon be put to the severest test.

  In 1647, Cooke earned the enmity of the medical establishment through the vigour of his defence of the incorrigible ‘Doctor’ William Trigg, once again charged with administering potions without being a member of the college of physicians. This time, Cooke brought Trigg’s patients to court to testify on his behalf and there were still a hundred of them waiting to be called when the judge dismissed the case. Cooke was probably right to attribute more cures to Trigg, using herbal remedies extracted from roots and weeds, than to these College physicians who drew their patients’ ‘bad blood’ by cutting or leeching them. The college then sued Trigg for an unpaid fine, so Cooke drafted a petition on his behalf which attracted more than 3,000 signatures. It claimed Trigg had ministered to 30,000 patients since 1624, and accused members of the college of betraying their trust by fleeing London at times of plague.41 Cooke published a compelling defence of his client in The Poor Man’s Case, which appeared in February 1648. But the college could never forgive him for holding its monopoly up to public ridicule: he was described by one of its officials as ‘a needy lawyer, an unknown hierophant [expounder of sacred mysteries] and obvious cheat’ in an angry letter written to a distinguished legal scholar, Dr Isaac Dorislaus.42 This doctor of laws was soon to form a rather higher opinion of John Cooke than the outraged doctors of medicine.

  These two lawyers – Dorislaus, the unworldly academic who specialised in the republican governance of ancient Rome, and Cooke, the streetwise practitioner with a taste for polemic – would be brought together by Parliament soon enough, to consider the case of the King. But in the summer of 1646, nobody envisaged that Charles would be put on trial. He was a king in temporary quarters with the covenanter army of Scotland: everyone thought it would only be a matter of time before he reached a constitutional settlement with his English Parliament and returned to the throne, his power diluted but not greatly diminished. These expectations faded over the next two years, as the King determined to resist any diminution of his prerogatives, by exploiting the schism in the parliamentary ranks and inciting a second civil war.

  5

  What the Independents Would Have

  THE DISTINCTIVE FEATURE of the English revolution was that it was actually justified by reference to law – Magna Carta, the Petition of Right and the common law, and even by recalling the Saxon legal heritage before the ‘Norman yoke’ was imposed in 1066.1 The crown had violated this fundamental law by its ‘prerogative courts’ like the Star Chamber, by its religious innovations and by spurning Parliament, which shared sovereignty with the King. Henry Parker, a barrister who provided the ideological ballast for resistance, argued that historical precedents demonstrated that Parliament alone had the power to declare law, binding on the King and people alike. His famous conclusion, ‘that the sovereign power resides in both Houses of Parliament, the King having no negative voice [i.e. veto]’2 had been the basis for the constitutional breach in 1642, when the Militia Bill, giving Parliament control over the army and navy, was brought into operation without the monarch’s consent. ‘The King in Parliament’ (i.e. the King in his capacity as executor of Parliament’s laws) required utter respect: disobedience was treason. The King outwith Parliament, whether acting by prerogative or on arbitrary whim, might on the other hand be resisted, even by force. Parliament had gone to war on this philosophy: it was the doctrine of constitutional monarchy, not republicanism. Every roundhead read his Soldiers Catechism, which began ‘I fight to recover the King out of the Popish malignant company’. Any fight to extirpate the King was not seriously sugge
sted – it would have been treason to do so – until 1648.

  The dramatic conclusion that ‘the common law forged the axe which beheaded Charles I’3 is simplistic, none the less. A substantial minority of lawyers – including some of the most learned, like Hyde and Bridgeman – stayed with Charles throughout the civil war. It was a common royalist taunt that ‘all the great lawyers followed the King’, which Cooke answered in his next work (A Union of Hearts, published in 1647): ‘not so neither, although I am sure the politick lawyer stayed behind [i.e. with the King]: ambition and avarice make many a man argue against their own liberties.’4 Most barristers were ‘trimmers’ who cut their cloth (and their hair) to the fashion of government as often as the Vicar of Bray. It was, however, a good measure of the strength of opposition to the King’s personal rule that a preponderance of them (about 60 per cent) were supportive of Parliament, even before its victory at Marston Moor: as Cooke pointed out, ‘The temptation was very great to be for the King’s side in all arguments because Parliaments have been discontinued and shortened’.5 That most barristers resisted the temptation cannot be attributed entirely to their common law training; it required Protestant passion to move the majority of this conservative profession to take up arms against the status quo. With victory came the question: what kind of constitutional settlement should follow?

  A compulsory ‘Kirk of England’ was demanded by the Scottish covenanter allies (in reliance upon Pym’s promise) and by the Presbyterians led by Denzil Holles, who in 1646 formed the majority in the Long Parliament. It was resisted by the Congregationalists – their MPs were dubbed ‘Independents’ – who had widespread support throughout the army, from officers (including Cromwell and Fairfax) and from soldiers. The New Model Army had finished the war as a politicised institution, with promotion on merit rather than on lineage and procedures for presenting the views of lower ranks to the generals, through elected representatives and ‘agitators’. In truth, the army was more representative of the general population than was the Parliament, with its gentlemen MPs elected on a very limited franchise by the votes of country squires and other local worthies. At the war’s end, the question of what to do about the King (who would spend the first nine months of his captivity in a pleasant enough colloquy with Scots officers) was put on ice. The urgent problem was the growing tension between a Presbyterian Parliament and an increasingly ‘Independent’ army.

  The task of post-war reconstruction was daunting enough: over 100,000 adult males had been killed in the actual fighting, with several hundred thousand non-combatants lost from collateral damage and war-borne disease – in proportion to the population of England and Wales at the time, higher casualties than were suffered in the First or Second World Wars.6 The New Model Army, which had suffered for Parliament’s sake, expected respect for its civil position: instead, Parliament determined to smash it before it became a power base for Independency. Much of the army was to be disbanded, and the remainder sent to Ireland. This was a popular enough policy in London among the merchants and tradesmen: the high taxes to support the soldiers irked the commercial classes. But Parliament’s niggardly and unfair treatment of men who had risked their lives to secure its supremacy is only explicable by the growing fear that the army was embracing Independency – a self-fulfilling prophecy as it turned out, because the radicalism of the soldiers, fanned by their Leveller-inspired ‘agitators’, was fuelled by justified grievances over pay and conditions.

  While Parliament shadow-boxed with the army it was in no position to come to a settlement with the King, whose strategy was to exploit the growing split in its ranks: his hope was that ‘I shall be able so to draw either the Presbyterians or the Independents to side with me, for extirpating the one or the other, that I shall really be King again’.7 He was happy to bide his time until he could rally a sufficient force to recommence the war: he had high hopes of anti-covenanter Scots led by his devoted courtier the Duke of Hamilton; the woods of Wales were still thick with royalists (the last Welsh castle did not surrender until the autumn of 1647); and there was always hope of support from the Irish rebels led by his faithful Duke of Ormond, and from the French or even the Vatican. His army commanders were safe on the continent, or had been pardoned in return for pledges that no self-respecting cavalier would keep. So he temporised, happy in the belief that the English political factions needed him more than he needed them. In January 1647, Parliament negotiated a settlement with the Scots covenanter army promising to pay £400,000 for its Civil War services in return for its removing itself from English soil and handing over the King – who considered that he had been bought, and for less than a king’s ransom. From his comfortable ‘mansion arrest’ at Holmby House in Northamptonshire, he smugly rejected Parliament’s terms of settlement (the ‘Newcastle Propositions’) which required that some Royalist officers should be prosecuted for war crimes:

  A general act of oblivion is the best bond of peace . . . After intestine trouble, the wisdom of this and other kingdoms has usually and happily, in all ages, granted general pardons, whereby the numerous discontentments of many persons and families otherwise exposed to ruin might not become fuel to new disorders or seed of future troubles.8

  This demand for a general amnesty came hypocritically from a king who was actively planning to fuel new disorders. But it was a response made from a position of strength: he might be Parliament’s prisoner, but the MPs’ insistence on having him as their King made them his long-term captives. So it came as a considerable shock to Charles, as he was enjoying a springtime game of bowls at the Spencer estate, Althorpe, to hear that he had a visitor. Cornet George Joyce – a very junior officer, although he had consulted with Cromwell before setting out – had come to take him into the custody of the New Model Army. ‘Where is your commission?’ he asked the polite young soldier who led him away the following morning. ‘Here is my commission,’ said the corporal. ‘Where?’ asked the King, expecting to be shown a document signed by Fairfax. ‘Behind me,’ Joyce answered, indicating the troop of five hundred New Model cavalry waiting to escort them to an army rendezvous at Newmarket. ‘It is as fair a commission as I have seen in my life,’ Charles acknowledged.

  On the chessboard of England at war with itself, Charles had faced Parliament as its King: he now became a pawn in a different game, being played less for civil liberty than for religious toleration. The parliamentary Presbyterians, supported by most of the city fathers and the London mob, wanted to impose upon the whole country the Solemn League and Covenant, with its unity of sombre and sober worship and ordained ministers. The ‘Independents’ wanted no part of any centralised Church: godly congregations should be entitled to choose their own preachers, whether trained or just divinely inspired. There were other sects too, which spoke in tongues or envisaged the imminent second coming of Christ in ways that variously interpreted the Book of Revelation. Then there were Anglicans – more than anyone realised, as it turned out – who quietly cursed all these Calvinists and wanted to worship at altar rails, with a prayer book supervised by bishops, in the light that played through stained glass. Charles, their champion, was powerless to intervene when, in October, the Independents and Presbyterians briefly made common cause and abolished the Anglican episcopacy, although doubtless he recalled his father’s prophecy (‘No bishop, no King’). But he was reassured when the two factions fell again to abusing and confusing each other.

  It was into this war of angry words that John Cooke stepped in 1647. Realising that the parliamentary cause would be lost without a sensible compromise, he published What the Independents Would Have, a tract which sought to define more carefully, and less threateningly, a movement which was already being condemned as ‘fanatical’. It was short, at sixteen pages, with large print: it was tighter and more objective than his other writings. He allowed himself only one reminiscence, of the time he was minded to support episcopacy when staying with the separatists in Holland – before being persuaded that bishops, ‘the inventions
of man’, ought not to control an institution committed to Christ. Now, he was writing this pamphlet to answer the question that was being asked all around him: ‘What do the Independents really want?’ The answer was obvious: they wanted what the Puritans sought vainly from James I, namely liberty of worship,

  an entire exemption from the jurisdiction of all prelates and ecclesiastical officers, other than such as themselves shall choose, and to be accountable to the magistrate for what they shall do amiss, submitting to the civil government in all things . . . but otherwise to be free to choose their own company, place and time – with whom, where and when to worship God, as they are in the choice of their wives, for a forced marriage will not hold.9

  It was a telling simile: a forced marriage was exactly what the English Presbyterians and Scottish covenanters intended, to unify worship in their two kingdoms. Why did the Independents, who were also Calvinists, refuse so stoutly to contract it? Cooke constructs a character – reflective, presumably, of his own – designed to show the Independent as the friend of other Christians (whatever their errors they were fellow believers in Christ) but as an enemy to any form of state-enforced religion: ‘to force men to come to church is but to make them hypocrites.’10 They tolerated not only Presbyterians, but other groups whose errors were not terminal: Anglicans have some ‘very comfortable’ opinions; sectarians like Anabaptists and Seekers have odd views but may find a way to heaven, as might Fifth monarchists, who thought that Christ was just around the corner, and ‘millenarians’ (so called because they believed that the thousand-year ‘rule of the saints’, promised by the Book of Revelation, which would precede the second coming, was at hand). Your Independent ‘knows no hurt in a million millenarian-like errors. Who would not be glad to see Jesus Christ?’ These cults had crawled from underneath ‘the world turned upside down’: as a result of the war, families crazed with grief tried to reunite with soldiers they believed to be now in heaven. (The outbreak of spiritualism after the carnage in the trenches of the First World War had a similar effect.) Cooke has been depicted as a millenarian, but the quoted passage demonstrates that he was merely tolerant of their ‘million errors’. Given the limited capacity of Heaven, the great mistake of Catholicism was its doctrine that Christ died for all (although he admits it is a clever way of encouraging good works as a means of attaining salvation). But unusually for his time he does allow the possibility of tolerating Catholics, since their praiseworthy aim is to honour and exalt Christ.