The Tyrannicide Brief

by Geoffrey Robertson

  There is evidence that Frances in these first years bore a child – a son, who died in infancy.12 John coped with grief by throwing himself into his work, producing his major tract – Monarchy No Creature of God’s Making, published both in Waterford and by his old publishers in London. As well as his presidency of the Munster Court he undertook assize work in Connaught and provided various public services in a country where he was the best lawyer – almost the only one – available to the state. For example, he was given the massive task of examining all the laws of England to decide whether and to what extent Parliament should apply them to Ireland. This was an important job, given the influx of English families ‘planted’ on land in Ireland forfeited by traitors and royalists.

  Ireland was brought under Cromwellian heel by the end of 1650, when it became possible to exact retribution for the atrocities of 1641. These were crimes against humanity, even if the emphasis was on Protestant humanity, and to punish them was the first ‘righteous cause’ that Cromwell had given for the invasion: ‘We are come to ask an account for the innocent blood that has been shed . . .’ The extent of Protestant casualties in the Catholic insurrection had been exaggerated by the London papers, but not the nature of the injuries inflicted on the victims, often women and children, whose corpses were viciously mutilated, often by women and children.13 The adjectives ‘wild and barbarous’ had perjoratively been applied to the native Irish by Elizabethan settlers like Sir Henry Wallop14 who gave his surname to a form of smiting – ‘There is no way to daunt these people’, he averred, ‘but by the edge of the sword.’ But no other description could be applied to the behaviour of the insurrectionists, egged on by their priests, in 1641, when pregnant women had been impaled and children killed because ‘nits make lice’.

  For Cooke, these crimes were unforgivable: he ranked the 1641 atrocities with the Sicilian Vespers and the St Bartholomew Day massacres as the worst examples of mass-murder of innocents. He sat on a special ‘High Court of Justice’ which in three sittings is recorded to have convicted fifty-eight but acquitted thirty-nine – an acquittal rate (40 per cent) that is all the more surprising given the degree of English prejudice against defendants.15 A record has survived of one trial – of Lord Muskerry, alleged to have approved of killings of civilians by men under his command. The court accepted defence evidence that he was not present and had afterwards wished to punish the perpetrators. After his acquittal the defendant paid heart-felt tribute to the fairness of his judges, who had ‘leant to my favour rather than to my prejudice – in this court, on being sifted, I have come clear out of that blackness’.16 Cooke directed that the prosecution must prove a killing was by the defendant’s ‘hand or command’ and in the case of a commander like Muskerry, that he had actual knowledge of the crimes committed by his soldiers. In 1653 Cooke was appointed to chair a special tribunal to ensure that all the murder convictions fell within this limited definition.17 There are many recent examples of defendants who have been unjustly held liable as accessories to political killings because of their support for the killer’s cause:18 it is remarkable to find a Puritan judge, in 1653, narrowing the definition of the crime in order to acquit Catholics.

  In 1654 Justice Cooke was appointed both to the forfeited lands tribunal and to the tribunal to hear disputes arising out of the amnesty provisions of surrender agreements. He took on this extra work because he insisted that it be done by real judges, not ‘Godly laymen’. He did not insist that judges should have read their law at university, but he vigorously opposed the radicals’ idea that justice could be done by lay magistrates – a view the government supported in Ireland because it was cheap and anyway to attract real lawyers was difficult. ‘The greatest misery to an innocent man is the ignorance of his judge’ who, if untrained, would be ‘all conscience but no science’, and would not know what the rule of law required. In the preamble to Monarchy No Creature of God’s Making Cooke had set out the qualities necessary for a good judge: patience (to hear all that can be said on both sides), prudence (to give satisfaction to the parties, each of whom will honestly believe that they are in the right), justice which respects the cause and not the person (untrained ‘godly’ judges would naturally pity the poor and give judgment in their favour, irrespective of the merits of the case) and mercy to deal tenderly with poor defendants after their case has been lost. Cooke plagiarised the ringing phrases of Job 29 to provide his own credo:

  If I have seen any perish for want of clothing, or any poor without covering; if I have lifted my hand against the fatherless or made gold my hope; if I rejoiced because of my wealth or at the destruction of my enemies; if I have allowed strangers to lodge in the street; if I did not minister speedy justice to the poor for the love of justice and to the rich for a small fee when I sat in open court so that every man might see and hear the reasons for my proceedings; if I have judged by the merit of the person and not the justice of the cause; if I have more esteemed birth than virtue and prefered greatness to piety; if my enemy’s misery has been any pleasure to me; if I have thought myself better than my neighbours because I was richer; if I were ever overcome by threats, or corrupted by presents, to pervert judgement; if my constancy was ever shaken by a bribe; or if money had more power over my mind than reason; if I have not helped every man to his lands that had right to them without drawing tears to his eyes by tedious attendances . . . let my arm be broken by the hangman and heaven curse my lands; let the wheat which I sow reap but thistles . . .19

  It was a fine catechism for a judge of any age, and Justice Cooke strove in his own conduct on the bench to live up to it. There is no evidence that he did other than justice according to his lights and did it speedily (but not peremptorily), cheaply (by fixing lawyers’ fees) and fairly, given the legal rules and procedures with which he had to work. There is no doubt that he believed passionately in his work in Ireland – not only as God’s work, but because it would pave the way for reform in England.

  It is impossible at this remove to assess the quality of Cooke’s judicial decisions – most private papers of those who worked for the Cromwellian system in Ireland were hurriedly destroyed at the Restoration and all official records of this period perished in the fire in the Four Courts in Dublin in 1922. The poor who benefited from Justice Cooke’s rulings did not or could not write to express their thanks, although some surviving correspondence from the wealthy expresses a certain shock – if not outrage – at coming in front of a judge who was not biased in their favour. Lord Cork, greatest of the great landlords, was appalled that this new chief justice not only arranged for a barrister to assist an unrepresented defendant, but ‘when the case was pleaded he [Cooke] did argue more for him than any of his counsel’.20 His own well-paid barrister was so upset at finding a judge hostile to his noble client that ‘he vowed he would never more plead in that court’. Lord Cork unconsciously provides a rather heartening vignette of a judge determined to ensure that poor defendants received justice when they came before him, but Cooke was making dangerous enemies. Another was Cork’s cousin, Dean Michael Boyle, who claimed that Cooke would ‘temper the wind to the shorn lamb’, favouring the tenants that Boyle sued for debt.

  As well as presiding over the Munster court, Cooke was always first choice for special commissions or inquiries. For example, he chaired a tribunal to decide which of the Protestant clergy – who had almost to a man supported the King against Parliament – were fit to resume their ministry. Cooke had always been tolerant of differences between Protestants and obviously enjoyed the work of disputing with Prebyterian ministers: ‘I found much ingenuity in many of them and where they differ from us I take it to be on conscientious principle. I hope and daily pray that there might be better agreement between all honest and conscientious people who fear the Lord.’21 But John and Frances lamented sorely the absence of ‘godly ministers’ in Munster and did their best to encourage those congregationalist preachers they knew back home to ‘come over’. As late as 1652, the entire city
of Waterford had no minister for its congregation, and a letter survives from its ‘godly inhabitants’ to one potential pastor, urging him to take up the position to a place ‘which is likely to be a very comfortable English plantation in a short time’ and where the congregation would include his old friend, Chief Justice Cooke. For all Cooke’s pleasure at crossing intellectual swords with recusant ministers, he wanted to be led in worship by one of his own.22

  Cooke’s religious tolerance extended further than most English officials of his time: he was prepared to judge Catholics without discrimination so long as they did not ‘seduce the people’ or hold Mass publicly. In March 1650, Cromwell had issued his Declaration for the Undeceiving of Deluded and Seduced People, addressed to Catholic bishops who had urged their flocks to fight against him: ‘You, unprovoked, put the English to the most unheard of and most barbarous massacre (without respect of sex or age) that ever the sun beheld’, thundered Cromwell. Notwithstanding his determination to punish that crime, ‘I meddle not with any man’s conscience . . . as for the people, what thoughts they have in matters of religion in their own breasts, I cannot reach; but think it my duty, if they walk honestly and peaceably, not to cause them in the least to suffer for the same . . .’

  As chief justice of the main province, Cooke had to make this promise of non-discrimination good; for example, when deciding cases between English and Irish, or in assessing evidence from Catholics. He admitted that this was one of his greatest difficulties, but over English objections he permitted Irish witnesses to swear on ‘Lady Psalters’ (books about the Virgin) or to take oaths ‘by St Patrick’ – and in this way he accepted that they were binding themselves to tell the truth. However, when the public gallery was full of Catholics he was unable to resist the temptation to lecture them condescendingly about

  the ridiculousness of their bread God in the transubstantiation . . . that priests and friars are cheats and thieves robbing poor deluded simple people; that their priests by their law are not to marry but by their custom do not live chaste; their pretended miracles are mere impostures, and the only miracle about the Catholic religion is that priests who must have no wives yet have many children; friars have no money yet the best wine-cellars . . .

  Cooke deluded himself that his sermonising was gratefully received (‘They, perceiving it is spoken in love, intentionally for their own good, are not angry’). But he would not have made many conversions.23

  The chief justice took on a prodigious case-load, in the belief that Ireland was a ‘white paper’ upon which he could impress a speedy system of cheap and incorruptible justice which would serve as an example for England. He would often lecture soldiers and settlers upon this favourite theme. But as John Percivale, a local landowner and occasional litigant in Cooke’s court, explained to an English cousin, there were different ways in which Ireland might be thought a tabula rasa:

  I cannot be so much your enemy as to wish you here. Such is the miserableness of this place, I can compare it to nothing but the first chaos, or as Justice Cooke called it, at the late meeting of the officers, a white paper. Indeed, poor Ireland has lost much blood and I cannot wonder it shall be pale-faced now, and it may be called paper in that it may be quickly set on fire with faction – but that ’tis white paper ready to have anything writ on it that the State shall think fit – that is denied by some.24

  None the less, Cooke continued to see Ireland through rose-tinted glasses, as the blank paper on which he was writing a new system of justice which would provide a lesson for London. At the end of 1650, his first year in Munster, he penned a petition to the House of Commons explaining how his reforms could change England’s appalling legal landscape, where ‘Satan laughed to see murderers escape through a mistake in the indictment; where poor illiterate men were hanged for stealing corn to feed a starving family; where men with estates or titles would laugh at their creditors and poor men be locked up for the rest of their lives for incurring debts they could never pay from prison’.25 He had taken his court (he sat with two ‘gownsmen’, i.e. barristers) on circuit around the province, bringing justice to the people rather than forcing them to come with their witnesses to Dublin. He had attacked corruption by drastically reducing the number of court officials, and had reduced legal fees (‘There is seldom more than 20 shillings spent in a cause by all parties’, he boasted, ‘unless it be in counsel’s fees’ – which he fixed at a low but reasonable level). He explained to Parliament that his court fused law and equity jurisdictions, thus preventing the interminable delays and tactical ploys experienced in London when cases brought in the wrong division were struck out and had to begin all over again. Because the judges were full-time, without the short ‘terms’ kept by English lawyers, cases were heard as soon as they were ready, rather than at a distant fixed date when indulged judges returned from their overlong vacations.

  Most importantly, in civil cases his court did not imprison debtors, but instead ordered them to pay the debt by instalments. It was this system that Cooke fervently recommended to Parliament: although the people in Munster were ‘extremely indigent, there not being scarce a tenth part of the money here that is in England, debts are I believe ten times better paid’ because he had abandoned the pernicious system of arresting men for debt (from which his own brother and brother-in-law had suffered). His work in Ireland could show the way: instead of throwing debtors into prison and reducing their wives and children to beggary, the debtor came to Cooke’s court and offered to pay by instalments: under judicial guidance a jury of his neighbours fixed the amount and the dates of payment, as they reckoned him to be able to meet.

  Cooke’s petition was received by the Council of State on Christmas Eve 1650. It was referred to the committee for Irish affairs, since there was no real resolve in the barrister-infested Commons to progress in England this great work for which so many who believed in the commonwealth had fought and expected. Cooke was shocked to find that law reform was more difficult than abolishing tyranny, and that lawyers would struggle as hard as bishops to protect their own interests.26 Parliament might slough his petition off to a committee, but he would continue to set examples in Munster.

  Cooke made the most determined attempt to cut through the miasma of technicalities that bedevilled lawsuits in England and Ireland, frequently resulting in actions which bumped along for twenty years or so on a roller-coaster of hazardous pleading. It was all too easy for a malicious plaintiff to harass an innocent defendant and for a bad debtor, by being first to sue, to have his creditor falsely arrested. Cooke’s own description of the legal system that he found in Ireland was of a morass of injustice, delay and oppression. He was particularly struck by the phenomenon of the absentee English landowner, and by the injustice that victims who wished to sue them must get leave, at great expense, to serve the writ on them in London: ‘it is no small mischief that men that have estates in Ireland may live in England and pay no debts.’27 Those accused for debt, even wrongly, were thrown into prison – ‘penniless, friendless and for the most part graceless’: if they died there without funds, the guards could have dice made of their bones, and sell the dice to pay for their keep.

  Although he was now a judge and well into his forties, John Cooke still had the passion of his pamphleteering days as a young barrister: he maintained his rage against the oppression of the poor by ‘old courts and tedious formalities’ and by a system in which court officials served the rich who paid them bribes. In this system, honest causes were won by a miracle (‘sometimes, a blind man may tread upon a hare and catch her’).28 Cooke inveighed against the enemies of reform – both the reactionary formalists who wanted to keep traditions for no better reason than that they were traditions and the realists who feared that any change would endanger property. He was keen to point out that cheap and speedy justice provided for the protection of property. It was the law’s obsession with form over substance that endangered property, and even life – as when murderers were set free because their names were
misspelled on indictments (this was a particular bug-bear of Cooke’s and must have been a not infrequent occurrence). The judges of England and Ireland had been at fault. ‘The love of fees has so blinded their eyes’29 that these judges, heedless of the public interest, had created and sold court offices like horses in Smithfield.

  They have appointed twenty or forty offices and places in the court, where the business might better be done by three or four honest clerks . . . Every case must run through so many officers’ hands, and everyone must pluck a fleece from the clients – until that be done, the judge could not allow a cause to end, for fear of displeasing his officers.30

  This indictment of the traditional courts in Ireland was written after five years’ experience. It was all too true of the courts in ‘our beloved England’ where ‘the sons of Zeruiah are very strong . . . stones in the building are not easily removed’. John Cooke had hoped to set an example in Munster, and was troubled by criticism. ‘Good precious men . . . tell me I argue for arbitrariness and that they would rather live in Turkey than to be left to the discretion of a judge.’ Cooke tried to explain that the vice of arbitrariness was really found in judges ignorant of law and learning, whose decisions turned on which party they liked (or which had bribed them): the arbitrary judge was he who ‘judges persons not causes’.31 Law was not a set of ‘lesbian rules, flexible upon any importunity’ but ‘an exercise of inflexible rectitude to help every man to his right . . . that no honest causes shall suffer for want of good management’. This was Cooke’s credo as a judge, strictly applying the law whomsoever benefited, but ensuring that the poor had counsel in difficult cases and intervening on their side when he deemed it necessary for justice. Doing justice had become an uncompromising passion, and in 1654 he had given up the mastership of St Cross to concentrate full-time on Irish lawgiving. His resignation the following year would come from the depths of a despairing heart.