The Tyrannicide Brief

by Geoffrey Robertson

  The treason trial of John Lilburne in October 1649 must be ranked as one of the most significant criminal trials in legal history. In the course of a three-day disputation with the judges, this brilliant and radical autodidact renegotiated the meaning of due process, of what fair play for a defendant required. Indeed, Lilburne’s historic achievement over all his court appearances was to turn the English criminal trial into an adversary process – hitherto, it had been largely inquisitorial: the defendant’s guilt was assumed and he was given little chance to contest the evidence. Lilburne was a self-taught legal scholar but none the worse for that: a fine polemicist and an eloquent speaker, he had been a Star Chamber martyr, a courageous officer who had fought for Parliament and a popular favourite both of the army and the mob. He was not a defendant to trifle with, and the judges at his trial in October were well aware that they would be setting precedents for future treason trials. ‘We are on trial for our lives too,’ they reminded him, at the outset of the hearing.

  Lilburne began with an eloquent demand that the court uphold ‘the first fundamental liberty of an Englishman’ that ‘all courts of justice always ought to be free and open for all sorts of peaceable people to see, behold and hear, and have free access unto; and no man whatsoever ought to be tried in holes or corners, or in any place where the gates are shut and barred’. Judge Keble interrupted him with a smile: ‘Mr Lilburne, look behind you, and see whether the door stands open or no.’ The prisoner was somewhat deflated to see that it had just been opened, and hundreds of his supporters were filing onto the public benches even as he spoke. None the less, his outburst helped to establish the fundamental principle of open justice: the judges ruled that the court doors remain open at all times, ‘that all the world may know with what candour and justice the court does proceed against you’.

  Lilburne next mounted an attack on Bradshawe, for hypocrisy. The judge was now president of the council and in that capacity had summoned Lilburne to its sitting at Derby House:

  I saw no accuser, no prosecutor, no accusation, no charge nor indictment; but Mr Bradshawe very seriously examined me to questions against my self: although I am confident he could not forget that himself and Mr John Cooke were my counsellors in February [1646] at the Bar of the House of Lords, where he did most vehemently condemn the lords of the Star Chamber’s unjust and wicked dealing with English freemen in censuring them for their refusing to answer questions concerning themselves; and yet he dealt with me in the very steps that formerly he had bitterly condemned in the Star Chamber lords; yea, and there for refusing to answer his questions, committed me to prison for treason.30

  Bradshawe had been acting as investigator not a judge when he asked the questions and Lilburne had not been jailed for refusing to answer (his fate in the Star Chamber). But his protest was pointed, none the less, and the court refused to permit the prosecutor, the new Attorney-General Edward Prideaux, to force Lilburne to confirm that he was the author of the treasonable polemic. But this time, ‘Freeborn John’ was tripped up by his own love of publicity: he had personally presented the pamphlet to the Attorney-General a few months previously, with the boast: ‘Here is a book that is mine, the printing errors excepted – which are many.’ Prideaux took a grim delight in proving Lilburne’s authorship by calling his young law clerk to testify to the presentation. ‘He looks a man of quality,’ murmured one judge as he surveyed James Nutley, friend and pupil to John Cooke, who gave evidence against Lilburne as confidently as he would one day testify against his own pupil master.

  Lilburne was charged with treason under the new Act which had passed the Commons on 17 May, incriminating those who subverted the government or incited mutiny in the army. While it was being read, the Attorney-General stepped up to chat with one of the judges – a common feature in criminal trials hitherto. Lilburne would have none of this and complained bitterly:

  LILBURNE: Hold a while, hold a while. Let there be no discourse but openly. For my adversaries or persecutors whispering with the judges is contrary to the law of England and extremely foul and dishonest play.

  ATTORNEY-GENERAL: It is nothing concerning you, Mr Lilburne.

  LILBURNE: By your favour, Mr Prideaux, that is more than I do know.

  JUDGE THORPE: I tell you, Sir, the Attorney-General may talk with any in the court, by law, as he did with me.

  LILBURNE: I tell you, Sir, it is unjust, and not warrantable by law, for him to talk with the court or any of the judges thereof in my absence, or in hugger-mugger, or by private whisperings.31

  Lilburne was confronting an English court with the unfairness of its traditional procedures – an unfairness that began to be recognised after the King’s trial and those of his courtiers had shown some respect for defendants. He next challenged the rule that denied counsel to defendants on issues of fact. The Attorney-General pointed out that allowing barristers to contest the prosecution evidence would delay trials, and the court with some reluctance declined Lilburne’s request although it permitted him to have a ‘friend in court’ sitting nearby, who was a solicitor named Spratt, the first of that profession ever to seek audience. His intervention on his client’s behalf was firmly squashed (‘What impudent fellow is that, who dares be so bold to speak in the court without being called to the bar?’) but eventually the presiding judge accepted that Mr Spratt, the unsung precursor of solicitors’ rights of audience (granted 350 years later), might be heard on points of law, once the facts had been established. Lilburne, of course, was bluffing: he had no intention to yield the limelight to any lawyer, but his arguments for his right to have counsel to contest issues of fact and cross-examine the witnesses read so powerfully (Lilburne, typically, edited and published the report of his own trial) that they were important in securing that reform, which came in the next century.

  Lilburne’s trial achieved the consolidation of such defence rights as could be extrapolated from the recent proceedings against the King and the courtiers, supplemented with further rights drawn from the republican values for which Parliament had fought, i.e. fairness and equality before the law. The prisoner was to be treated with a measure of dignity and humanity, and the judges showed a dawning sense of pride that by such principle, English law was, comparatively, much fairer than law in other countries: Keble boasted that it was ‘the righteousest and most merciful law in the world – this we sit here to maintain and let all the world know it’. For all this, the defendant was plainly guilty of the offence created by the new Treason Act, which punished by death any published allegation that the government was unlawful: the defendant had described it as an ‘army junto’ run by ‘tyrants, weasels and polecats’. Lilburne therefore invited the jury to usurp the traditional role of the judges by deciding what the law should be, rather than what facts had been proved. In this, as the judges splenetically pointed out, he was totally wrong. But he got across to the jury the idea that the law should permit free speech, and that his acquittal would enable it to achieve this purpose.

  Lilburne was playing for his life: he knew that the army grandees whose troops he had incited to mutiny wanted him dead and that the judges, notwithstanding their fair procedural rulings, were time-serving at heart, and would in due course direct the jury to convict. He begged for an adjournment – just an hour, to relieve and refresh himself and collect his thoughts for his final speech. The judges were unimpressed and ordered him to hurry up: but Lilburne had one last precedent to create:

  LILBURNE: Sir, if you will be so cruel as not to give me leave to withdraw to ease and refresh my body, I pray you let me do it in the court. Officer, I entreat you – help me to a chamber pot!

  The judges sat in stunned silence as a chamber pot was fetched by the sheriff; then, as the official report notes, ‘When the pot came, he made water and gave it to the foreman’ – who presumably passed it around the jury.32 It was Lilburne’s last and most important precedent: courts must ensure the comfort of the prisoners at the bar throughout their trial.

  Whe
n it came time to sum up, the judicial mask of fairness and politeness slipped – as it often does in English criminal trials. Keble sent the jury out: ‘If you have fully apprehended the dangerous things plotted in these books of Mr Lilburne’s, you will clearly find that never was the like treason hatched in England.’ The jurors asked ‘that they might have a butt of sack to refresh them’ – a request for alcohol which was denied, as it has been to jurors ever since. They returned after an hour to acquit Lilburne on all counts, to the noisy acclamation of the packed Guildhall. He was conveyed back to the Tower, by soldiers who joined in the shouts of joy at his deliverance, and it was a fortnight before the Council of State judged it safe to discharge him. Cromwell, by now campaigning victoriously in Ireland, was astonished when he heard that Lilburne had been acquitted. Henceforth, the commonwealth would try its common traitors before a more reliable mechanism – High Courts of Justice.

  They need not have worried: the Levellers were finished as a political force, and Lilburne acknowledged as much. He buckled down to the new tyranny (as he saw it) and tried to restore his fortunes. He continued his dispute with Haselrig over property in the north and settled in to a new occupation, running the first ‘citizens advice bureau’ from his home, conveniently situated in Old Bailey. He even applied to join an Inn of Court (the Inner Temple) to study as a barrister, but Prideaux churlishly led the clamour to refuse him admission.33 In 1651 he made the mistake of returning to pamphleteering, albeit for his private interest, with a swingeing attack on Haselrig, but his enemy was an MP and he was held in contempt of Parliament. For this crime there was no trial by jury; Lilburne was fined and ordered into exile by Haselrig’s MP friends. He departed, despondently, to the continent, following the path well-trodden by defeated English royalists.

  The acquittal of John Lilburne may have irritated Cromwell, but it was the logical result of the revolution: justice and the Petition of Right had been a chief cause for which Parliament had fought. Lilburne repeatedly cited Cooke’s King Charles: His Case as proof that governments which influenced judges were guilty of tyranny – this had been a crucial part of Cooke’s indictment against Charles I. The consequence was twofold: judges must display their independence, and prisoners must be accorded certain rights to a fair trial: in particular, since the law was no respecter of persons, they were to enjoy the same respect that the King and the Duke of Hamilton were shown at their trials. From the same crucible in which the republic was forged in 1649 emerged a set of precedents which began a new tradition of fairness (or at least fairishness) to the defence: the criminal trial was beginning its turn from an ‘inquisition for guilt’ into a genuinely adversary procedure, in which the possibility of innocence would be ever present.

  By the time Lilburne’s trial took place, in late October, John Cooke had left for Ireland. He was still Solicitor-General on 30 June, when a House of Commons that was truly grateful for his services bestowed upon him the mastership of St Cross’s Hospital at Winchester, the largest almshouse in England.34 This was not a munificent reward for loyal work for the commonwealth: the master was entitled to keep some £200 per annum for himself after providing for the poor and those who ministered to them, and at Cooke’s abstemious request the House of Commons ordered an ‘augmentation’ of the funds actually allocated to the paupers. This almshouse was renowned for relieving the poor by getting them sozzled: its ‘wayfarers dole’ comprised two and a half pints of wine to wash down a small loaf and its brewhouse ordered malt in much greater quantities than its bakery ordered wheat to make the daily bread.35 The new master, so full of plans in his youth for curbing drunkenness, was horrified to find himself running a glorified brewery, and soon turned off the taps. He quickly changed an institution which had been run in the interests of its clerics and a handful of aged paupers into a hospital which took in soldiers injured in the Irish and Scots wars.

  The appointment was entirely appropriate given Cooke’s interest in poor relief, although most previous masters had been clerics. The current guidebook (St Cross remains a sanctuary for elderly poor) complains about ‘the forcible introduction of two lay masters, Lisle and Cooke, during the Commonwealth’,36 overlooking the facts that St Cross had survived Henry VIII’s dissolution of religious charities only by proving that it was a lay foundation and that it was Cooke and Lisle, not their greedy clerical predecessors, who increased the proportion of its funds actually spent on the poor. The guidebook entry is typical of the ignorance about, and bias against, the regicides which is still apparent in English writing and thinking. In fact, Parliament’s appointment of John Cooke, who really did care about the poor, should be compared with James I’s appointment of his old tutor, who cared so little that he never once left Edinburgh to visit St Cross.37

  This honour was the first of many lucrative public posts that Cooke might have expected to fall into his lap. He had for the past six months been indefatigable in working to create a republic – prosecuting its enemies and drafting its statutes. He was appointed by the House as a trustee for collecting the vast wealth and confiscated lands of the bishops, and paying it out to universities, hospitals and ‘godly ministers’.38 He was appointed to investigate the mismanagement of Charterhouse Hospital39 and to conduct an official enquiry in Guernsey.40 A silver medal was struck in his honour by the master of the mint, Thomas Simon – a tiny engraving of the Solicitor General, surrounded by a laurel wreath – the only likeness of John Cooke that has survived (see here). Why then did he set sail for Ireland, in the wake of Cromwell and his army of invasion?

  There is no doubt that he was now surrounded by lawyers who were much better connected and more conservative (for example, Edward Prideaux, the new Attorney-General) who with other cautious lawyers had been readmitted to the Commons once they had disavowed their December vote for continuing the Newport Treaty negotiations (an easy enough affirmation, once the King was no longer in a position to treat). These grandees distrusted Cooke, both for his low birth and for his past record of pamphleteering against their professional privileges, and Cooke must have sensed their opposition to his hopes for law reform. It is noteworthy that in midyear William Steele, who had failed the revolution at its most difficult moment, was made Recorder of London, and John Aske, Cooke’s junior counsel, was elevated to the rank of Sergeant and then made a judge.41 Cooke was passed over, either because he was considered too radical or at his own request. Remaining as Solicitor-General would mean accepting instructions to prosecute men like his old client Lilburne, with whom he had some sympathy. Then there was the question of security. Despite his public insouciance, the assassination of Isaac Dorislaus had been worrying enough for him to acquire a pistol to protect his wife and servants. His safety, and that of his family, would best be secured by the army, a large contingent of which was embarking for Ireland – a country he knew well from his days with Strafford.

  There was a more important reason. Reassurance that he remained in a state of grace would come from an ability to act like a saint, and what could be more saintly than turning his back on London vainglory, and embarking on an expedition, as a missionary both for God and for justice, to a country full of heathen Catholics and rebellious royalists? The prospect for doing ‘God’s work’ in Ireland was impressed upon him by Henry Ireton and then by Cromwell himself, who wanted a reliable judge to hand out retribution for the 1641 atrocities and then to reinvigorate the court system. Ireland was not an attractive prospect, but John Cooke was not a personally ambitious man and his law reform projects were being stalled by the conservatives. It occurred to Cooke that these reforms would have to be proved in practice before they would be countenanced in England, and ‘West England’ (as Ireland was optimistically called) might be the place where that proof could be demonstrated:

  The lodestone that drew me over into Ireland was the great encouragement that I had from Cromwell and Ireton and many honourable persons in the army, who were pleased to say that Ireland was like a White Paper, apt to receive any goo
d impression. Because the Lord had superseded the old courts here, it was hoped (by divine assistance) that such an expedient for a speedy and sure justice might have been settled; that though Ireland be but the younger sister yet England might have been learner and gainer by her.42

  At some point in the summer of 1649, the Solicitor-General decided to abandon all ambitions for political or judicial office in England and to join Cromwell’s crusade to pacify and reconstruct Ireland. He spent some time in Winchester in September, signing leases and sorting out business at St Cross. Then, to the dismay of his wife’s friends, he took Frances across the sea to Munster.

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  Impressions on White Paper

  IN THE FIRST months of the commonwealth, Ireland presented the gravest danger. The Duke of Ormond, himself a Protestant, commanded a substantial army comprising royalists, old English Catholics and native Irish Catholics, in alliance with an Ulster Catholic army led by O’Neil; they were joined by the most brutal of the parliamentary commanders, the Earl of Inchiquin, who defected when the King was put on trial. That left a parliamentary force in Dublin commanded by Michael Jones and another army under Sir Charles Coote in Connaught. The civil war years had seen these and other forces in varying alliances engaged in numerous battles, often marked by utter disregard for the rules of warfare – captured towns were frequently plundered, with non-combatants (women, children and old men) ‘put to the sword’. Ormonde was commanded directly by Charles II, and Rupert’s navy was based at Kinsale. The Council of State believed that waxing royalist power would mean an attack on of England from Ireland, unless England acted first. In March 1649, it had asked Cromwell to lead an invasion.

  Cromwell hesitated for several weeks whilst he ‘waited on God’. Like Fairfax, he was well aware of the danger from the combination of ‘the Papists and the King’s party’ which might root out the Puritan settlements as violently as in 1641, when thousands of English Protestants had been massacred, and then use the country as a springboard for another war in England. Cromwell explained his eventual decision in terms that every Englishman of the era could understand: ‘I had rather be overrun with a cavalierish interest than a Scots interest; I had rather be overrun with a Scotch interest than an Irish interest . . . for all the world knows of their barbarism.’1 It was retribution for this barbarism that Cromwell believed was God’s purpose: the atrocities of 1641 had never been requited and the conquest of Ireland would be the surest way to end impunity and bring the country to Protestant-led civilisation. After Leveller-inspired rebellion had been put down severely by Fairfax at Burford, Cromwell’s agreement to lead the campaign gave the soldiers some reassurance. To avoid any suggestion of unfairness the choice of regiments to accompany him was made in a most unusual way: by a child, drawing the names of their colonels from a hat. The first name to be drawn was of Henry Ireton. Hence another of history’s hypotheticals: what if the child’s trembling hand had not drawn (and to a lamentably early death) the name of the only man after Cromwell capable of leading the Republic?