The Tyrannicide Brief

by Geoffrey Robertson

  Cooke was inwardly dismayed by this ‘face of rigour’ that the law, unmitigated by equity, required him to show which still echoes in Ireland with the phrase ‘to hell with Connaught’. (This bitter legacy meant that the impression of radical republicanism that Cooke’s generation left on the white parchment could never be acknowledged. Wolfe Tone and others reinvented it – as Irish nationalism – in the eighteenth century.) His frustration was further exemplified by the case of the Duke of Ormond’s mother, Viscountess Thurles, who protected several English families in 1641 and had assisted English Protestants over the years since. Cooke found her ‘a very deserving person’, but unfortunately the good lady had chosen to live under enemy protection. The test of ‘constant good affection’ would bar her claim, so instead of ruling against her he reported the merits of her case to the council. Buck-passing to politicians was preferable, in Cooke’s mind, to twisting the law.12 He also served in this period as an assize judge for Cork and as recorder of Waterford, the town where he lived and worshipped.

  Worship, as ever, was much on his mind, in a province where Congregationalist ministers were still few in number and had to compete not only with shadowy priests but with proselytising Presbyterians, who established a weekly lecture at Cork in 1656 and intended to exclude all the ‘unordained’ Congregationalists. So in his charge to the City’s grand jury in August – an occasion for the senior judge to animadvert on the state of the nation – he urged ecumenical ‘unity and love between all honest and peaceable men’ and the rejection of ‘over bold’ preachers who ‘disown and vilify their brethren’. But next day, when he gate-crashed the lecture, he heard a zealous young Presbyterian excoriating ‘with many bitter expressions, those that differ from him in doctrinal discipline’. He wrote immediately to Henry Cromwell, who had become Lord Deputy in all but name after Fleetwood returned to England. Typically, Cooke did not ask for the lecture to be banned: his solomonic solution was that a Presbyterian lecturer alternate with a Congregationalist, ‘which will be a great encouragement to all Godly persons’.13

  For more than a year after his resignation from the Upper Bench, Cooke was still doing the state much service even though the state itself had changed dramatically since he had been its Solicitor-General. He was out of touch with the coming men in London, like Edward Montagu at the Admiralty, and with the ‘comeback’ men like Sir Anthony Ashley Cooper and Arthur Annesley, ‘secluded’ by Pride’s Purge but now powerful MPs in protectorate parliaments. Cooke was pleased when Matthew Hale was appointed to the bench – although a royalist who had defended the Duke of Hamilton,14 this legal genius had championed many of Cooke’s reform suggestions. He supported Cromwell’s decision to readmit the Jews, banished from the realm since 1290: their conversion to Christianity was mentioned in the Book of Revelations as a portent that the millennium – the thousand-year rule of the saints prior to the second coming of Christ – was near.15 Cooke’s loyalty to Cromwell never wavered: his friends Ludlow and Bradshawe had been carpeted for their antagonism to the protectorate, but Cooke had always set the law and God far above politics. So long as Oliver refused the throne and held out hope of godly government and law reform, Cooke was willing to serve him.

  By 1657, after three years of the protectorate, Cromwell was undeniably secure. Notwithstanding some frenetic plotting by the Sealed Knot, a royalist underground infiltrated by Thurloe, uprisings such as Penruddock’s in 1655 were pathetic affairs and juries did not hesitate to convict the ringleaders. There was little public sympathy at this stage for Charles II, although Cromwell lost some support when he installed major-generals to rule as ‘Lord Deputies’ in the counties. They were obeyed, but not gladly, as they closed down alehouses and cut down maypoles and tried to effect Cromwell’s ‘reformation of manners’ by prohibiting cock fights and bear-baiting and by arresting drunkards and bawds. But by cutting loose his old commonwealthsmen (he called them ‘Levellers who had found a finer name’16), by sounding and acting royal (‘We would keep up the nobility and the gentry’), by excluding more elected MPs than Colonel Pride (mostly for some disrespect to himself or to the army) and by distancing himself from Lambert, now his only credible successor, he was playing into the hands of the reactionaries and the closet royalists. When the second protectorate Parliament met in September 1656, Cromwell urged it to end abominations in criminal justice such as ‘to hang a man for six pence, threpence, I know not what; to hang for a trifle and pardon murder’. Protectorate MPs were conservative, and ignored his request that MPs intrude some humanity into the law: one of his Parliament’s first actions was to constitute itself a court and to sentence the Quaker James Naylor to the very similar torture of branding and whipping and tongue-boring with which Charles I had scandalised the godly by inflicting upon Prynne and Bastwick.

  John Cooke brought Frances back to England in early 1657. He was much in demand for tribunal work in Ireland, but his wife had developed a consumptive illness and his father, Isaac, was old and sick in Leicestershire. Moreover, Cooke wanted to see Cromwell – the Lord Protector who needed protection from the conservative lawyers and MPs who were now trying to make him king. Cromwell was first offered the crown by Speaker Lenthall at the end of March and he equivocated for several months – the great lawyers like Whitelocke and St John had urged him to accept. They had been advising him, ever since 1651, that any settlement must have ‘something of monarchy’ in it, and now they produced a ‘Humble Petition and Advice’ which would replace the ‘Instrument of Government’ by re-establishing an Upper House and some royal prerogatives. Most of his colleagues from 1649 – Bradshawe, Ludlow, Harrison and Marten – had fallen from his favour, but his faithful Solicitor-General visited, to remind him that monarchy was no creature of God’s making.

  Historians offer different reasons why Cromwell eventually refused the crown – the opposition of his officers; a true sense of humility; or even to win a poet’s praise:

  He seems a king by long succession born,

  And yet the same to be a king does scorn.17

  It is more likely that he was persuaded to keep the republican faith by John Cooke’s heady brew of God’s word and ‘right reason’. ‘Whether they be good or bad’, Cooke had argued, ‘kings are the people’s idols, creatures of their own making.’18 They were sought after by irrational people, in ‘nations delighting rather in servitude than freedom’.19 Cooke had demonstrated, in an argument lodged in Cromwell’s soul, that God had never approved the office, but suffered it so the people could be punished for their sins when kings gave way to the temptation to become tyrants. ‘Hereditary kingdoms have no footsteps in scripture’ any more than do Popes. Machiavelli’s Prince, that exemplar of absolute monarchs, would keep no promises if they turned to his disadvantage.20 That was the sort of man Cromwell would become if he took the crown, and his acceptance would be a sign that he was not one of the elect. Unlike his republican comrades, Cooke supported a ‘Lord Protector’ who served as what would today be described as President, restrainable by Parliament and accountable to the law. God approved rational and just governments – what Cooke termed an ‘elective aristocracy’. It was rational for the wise to govern the ignorant – it was absurd to have a system where the hereditary head of state might be a child or an idiot. But he warned that the trappings of monarchy were vainglory: ‘Reason abhors it and God approves it not.’ This was the basis upon which they had sent Charles I to the scaffold: Cromwell dared not deny it by metamorphosing into Oliver I, father of Richard IV.

  Cromwell did not refuse the crown because of army opposition or political caution, much less from genuine humility. He refused it because he feared for his afterlife and he was persuaded that for Puritans there could only be one King, now and for ever. Earthly crowns are not worn by saints, Cooke warned, and if a seeming saint covets such adornment, then maybe he is not a saint after all. Cromwell announced that he would serve the state ‘not as a king but as a constable’. He would not follow the Stuart kings, for �
�God has seemed providentially not only to strike at the family but at the name’.21 Fine words – but his office of constable was defined by a revised ‘Humble Petition’ which gave him an Upper House, most of the attributes of kingship and, fatally, the right to nominate his successor. About this time (June 1657), he fell out with John Lambert who refused to take an oath to support this new constitution. He was a force for free thought, having supported James Naylor against the tide of intolerance, and was the only leader who might have been capable of keeping the army, the parliament and the people in some form of equilibrium.

  Cooke’s advice to Cromwell about Irish justice was equally uncompromising. He wrote to Henry Cromwell in December 1657 congratulating him on his recent accession to the lord deputyship (‘May the Irish harp be kept in good tune’) explaining that he had been in London in attendance on the Lord Protector over the last few months. He delicately mentioned that they had discussed ‘the reviving of a presidency court for Munster, to have law and equity, as formerly’. This had become an obsession, and the Protector seems to have indulged him in it, whilst insisting that the final decision would rest with Henry and the council in Dublin. Cooke promised to return to Ireland (as he had apparently been urged – he says ‘commanded’ – by the Protector) in March 1658 and to attend upon Henry then, although not in any public capacity ‘for I dare not for all the world divide between law and equity’. The young lord deputy would not have understood this passion for fusion, but Cooke was one of the few good judges prepared to work in Ireland, and his price for that service was a court that combined both jurisdictions. It was a strange issue on which to take such an uncompromising stand – the merits of combining of law and equity being a subject for a debate between lawyers lasting for centuries but of no interest and indeed of no comprehension to anyone else. (Fusion eventually happened in England, in 1873, with the advantages that Cooke claimed; in New South Wales, incredibly, it did not happen until 1970). Cooke did not return to Ireland the following March, as he had promised both Cromwells, but for an altogether more understandable reason.

  The year 1658 was a black one for him, as it was to prove for them. First, his beloved father Isaac died and then the tuberculosis consuming Frances became much worse. She could not travel, and John would not leave her – he nursed her until her death.22 This was the year he did spend ‘with my dear relations . . . in prayers and tears which are the Christian’s best weapons’ – and they must have been his, in coping with the loss of the two great human loves of his life – the father who had shared his chamber and his aspirations, and the wife with whom he had weathered the storm.

  Whilst in mourning in Leicestershire, Cooke would have heard the news from London of the death of Robert Blake, his contemporary from student days at Wadham, the great admiral who had vanquished first the Dutch and then the Spanish fleet. He would have heard about the new Parliament, opened by prayers from Hugh Peters but with a new Upper House full of the great lawyers – now dubbed ‘Lords’ – who opposed reform.23 He would have been furious to read the tract Killing No Murder which urged Cromwell’s assassination, with deliberate echoes of Cooke’s argument against tyranny in King Charles: His Case. Members of the Sealed Knot were put on trial in June 1658 for making preparations to assist invasion by the King’s forces. Cromwell distrusted juries after his experience with Lilburne, so he established another High Court of Justice under the presidency of John Lisle (now a Chancery judge), who had assisted Bradshawe at the King’s trial. One conspirator – John Mordaunt – was acquitted, on Lisle’s casting vote.24 The evidence established that he was probably guilty, but probability, as Lisle pointed out, was no longer sufficient. The evidence against the other two was overwhelming, but although both were commoners, they were permitted to enjoy (for want of a better word) an easy and speedy death by beheading. For all that it may be odd to modern ears to find dignity in a death sentence, the horror and the lengthy and excruciating pain of hanging, drawing and quartering made the axe-man a merciful alternative.

  John Cooke and his family, like everyone else in Leicestershire, cowered in cellars or under beds when the country was hit on 3 September – which had always been Cromwell’s lucky day – with a storm of unbelievable ferocity. Andrew Marvell, who had moved on from the Fairfaxes to become assistant to Milton, the Latin (i.e. Foreign) Secretary to the Council of State, describes its fearful progress:

  First the great Thunder was shot off, and sent

  The signal from the starry battlement:

  The winds receive it, and its force outdo,

  As practising how they could thunder too:

  Out of the binder’s hand the sheaves they tore,

  And thrash’d the harvest in the airy floor;

  Or of huge trees, whose growth with his did rise,

  The deep foundations open’d to the skies.

  Then heavy showers the winged tempests lead

  And pour the deluge o’er the chaos’ head.25

  By the time the storm subsided, the Lord Protector was dead. For Marvell, who would guide the steps of the blind Milton at Cromwell’s funeral, it had been the tumult of the universe as his wasting spirit left the earth for heaven. A darker rumour, that the storm had been Satan returning to claim his soul, was credited by too many for his successor’s comfort. Like the hereditary monarch he had refused all entreaties to become, Cromwell had appointed his elder son to succeed him.

  Part III

  Restoration

  15

  Tumbledown Dick

  PRIMOGENITURE – SUCCESSION OF the eldest son, the key to security of large family estates – was a principle the English did not question. The traditional expression of joy by bonfires and bell-ringing, on Richard Cromwell’s proclamation as Protector, was genuine enough. Charles, the alternative heir, ill-naturedly bided his time, not yet occupying the thoughts of any significant number of his countrymen. The conspiratorial web spun by the venomless spiders of the ‘Sealed Knot’ had by 1658 been thoroughly infiltrated by Thurloe, Cromwell’s cabinet secretary. Thurloe proved the ablest of public servants, combining administrative nous with a spymaster’s cunning. His task was to protect the protectorate, to hold the country together and demonstrate that the form of government instituted in 1654 was not just the personal fiefdom of one mighty individual, but a system that worked even when inherited by a pleasant nonentity.

  It was not the royalists from whom Richard would need protection, but the republicans, who took fresh heart from the death of the man they saw as having betrayed their revolution. Sir Henry Vane had already used the phrase ‘the Good Old Cause’ to provide a slogan for Haselrig and Scot and Ludlow and Bradshawe and Marten and all the restless, resurgent Rumpers, the ‘Class of 49’. The slogan had a resonance among many middle-ranking army officers, who could not forget why they had fought the civil war, and whose power base was in London, commanded by Richard’s brother-in-law Fleetwood and his uncle Desborough. Richard might be their relation by marriage, but so far as these army grandees were concerned he was not ‘one of us’ – he had never commanded a regiment. General Lambert had been cashiered by Cromwell for insubordination, but this architect of the victory at Dunbar and draftsman of the Instrument of Government had a touch of brilliance that outshone other candidates for leadership. But which way would Lambert jump? Not to the royalists, who had made repeated overtures, even offering Charles II’s hand in marriage with his daughter, Mary. Only time would tell, and in the meantime Thurloe had to make do with Richard, already lampooned on the streets as ‘Tumbledown Dick’.

  Thurloe also had to run the country – the ‘three nations’ that had not yet called themselves Great Britain. Scotland, at least, seemed pacified and unproblematic, under the competent heel of General Monck. This experienced soldier, first and instinctively a royalist, represented the kind of man that Cromwell ended up by cultivating and advancing, both in the army and the law: solid, self-seeking conservatives who were very good at their jobs, but fearful of innova
tion and reform. They were, however, loyal to the establishment of which they were part – so long as it was likely to stay established. Ireland was, as ever, more problematic, although young Henry Cromwell was showing political ability, unlike his elder brother. Ireland’s perennial problem was its lack of indigenous legal and administrative talent. ‘It is a most difficult thing to get any person of quality to go from hence to Ireland . . .’, lamented Thurloe in a letter to Henry in January 1659.1 The immediate problem was the Upper Bench: Chief Justice Pepys (uncle of the diarist) had just died and there was already a vacancy for another judge. The only obvious candidate had resigned as a matter of conscience back in 1655. But John Cooke had been talking to Richard Cromwell, and his mind had changed.