The Tyrannicide Brief

by Geoffrey Robertson

  And public entertainment was back. It was the age of miracles, when fetes and fairs and freaks and festivities were suddenly all the rage, as John Evelyn describes:

  I saw in Southwark, at St Margaret’s fair, monkeys and apes dance, and do other feats of activity, on the high rope; they were gallantly clad à la mode, went upright, saluted the company, bowing and pulling off their hats, they saluted one another with as good a grace as if instructed by a dancing master; they turned heels over head with a basket having eggs in it, without breaking any; also, with lighted candles in their hands, and on their heads, without extinguishing them, and with vessels of water without spilling a drop. I also saw an Italian wench dance, and perform all the tricks on the high rope, to admiration: all the court went to see her. Likewise, here was a man who took up a piece of iron cannon of about 400 lb [pounds] weight with the hair of his head only.32

  Charles spent his first regal summer feasting, hunting and ennobling. His appetite was prodigious, as was his lust (somewhat contained in these early days, as he tried to live up to the propaganda about his chastity). His memory was good: Bishop Juxon was made Archbishop of Canterbury; John Gauden, Cooke’s Wadham contemporary who had ghost-written The King’s Book, was made Bishop of Exeter. ‘At this time the bishops begin to be very high and in great power’, John Rugg notes with alarm. Rugg, a Covent Garden barber, was reassured to hear that ‘his majesty and many of the nobility were at the bull and bear-baiting in the tiltyard, as it seems an ancient custom in times of peace in England, in the King’s peace’.33 The ceremony that really proved the Stuarts were back was that of ‘touching for the King’s evil’ which Charles II immediately revived.34 It was a ritual mix of custom and superstition, in which the King touched the scrofulatic necks of those who recognised him as ‘the true light that came into the world’, and who received a gold coin – an angel – for reporting an immediate detumescence in their glands.35 It was the apotheosis of kingship, making a magic that Parliament had abominated and abolished back in the 1640s. It was a time of wonder and splendour for the new aristocracy and a moment of marvel and miracle for the poor. As for the poor champions of the people’s cause in the Tower of London, John Cooke’s letter to a friend (probably Ludlow) shows him making the best of his bad luck.

  ‘Let never any Christian fear a prison’ is his jaunty beginning, ‘it being the only place where (wanting other books) a man may best study the book of knowledge of himself, having a long vacation from all business.’ Hard as it was not to feel the unfairness of his persecution, he now understood that he was in a state of grace, with ‘a sweet certificate from heaven for the pardon of sin’.36 Grace enabled him to face death: ‘What need you care, if they say Behold the head of a traitor when your better part is in heaven?’ Martin Luther regretted, as he lay dying in his bed, that he had not actually suffered torture or prison for Christ’s cause – all the more reason for Cooke to rejoice that he, ‘one of the meanest lawyers in Westminster Hall’, had been chosen as a sacrifice. He refused to contemplate escape: ‘it is accounted shameful to soldiers to run from their colours but it is more odious for advocates to prevaricate and betray the client’s cause.’

  Cooke conceded: ‘I am reasoning myself against sense into a willingness to die.’ He could find a few rational reasons: ‘The axe or the halter [the rope around the neck on the scaffold] will be less pain than the pangs of childbirth’ – which was true enough in 1660. There was likely to be a flood of persecution and ‘it is a mercy to be taken away from the evil to come’. Moreover, at fifty-two he was old anyway: ‘I can expect to do little more for God. I am three parts dead (seventy being divided into four), the shades of evening are upon me and aches and pains are inseparable companions.’ But these reasons were insufficient to overcome death’s terror: he owned to frequent ‘fainting fits and despondencies; the spirit blows where it likes’. At these times he needed the cheer of Harrison and the prayers of his friends, and to believe that he was of the elect. ‘We shall judge our judges’, he exulted. Cooke would not judge kindly the ‘men of Keilah’, led by Charles Coote, who delivered him up ‘for the Parliament to sacrifice us’, or the Presbyterian MPs ‘for whose privileges we ventured our all and who cannot condemn us without giving judgment against themselves’. Unlike these hypocrites, he would keep the faith: ‘The cause for which I am in bonds is as good as ever it was . . . being for truth, holiness and righteousness for our liberties as men and as Christians.’37 Cooke had at this stage not heard any plan for his trial, although he understood that ‘they’ – Hyde and the cabal presently around the King – regarded him as the worst of the surviving regicides because he had been the evil genius behind the prosecution. But he would not beg for his life:

  Let us not entertain damps of despondencies. My rejoicing is in a good God, a good Cause, a good Conscience . . . men’s law at Westminster will be adjudged treason in heaven . . . We are not traitors or murderers or fanatics but true Christians and good Commonwealthsmen, fixed and constant in the principles of sanctity, truth, justice and mercy, which the Parliament and army declared and engaged for, and to that noble principle of preferring the universality before particularity. We fought for the public good and would have enfranchised the people and secured the welfare of the whole groaning creation, if the nation had not more delighted in servitude than in freedom.38

  17

  ‘They All Seem Dismayed . . .’

  THE ACT OF Oblivion identified the men liable to lose their lives for involvement in the trial of Charles I. A few had already fled to the Puritan colonies of Virginia and Massachusetts while others had found asylum in the republic of Geneva or the Low Countries. But nineteen had surrendered on the promise of the King’s proclamation of 6 June while some major targets – notably Cooke and Harrison – were already in custody. The sight of Cooke and the other prisoners from Ireland being taken to the Tower on 18 June began a hue and cry for Hugh Peters, who was excepted from the Act that very day but hidden by a Quaker family in Southwark: he was eventually apprehended, hiding under their bed. That made twenty-nine regicides available for trial.

  The cavaliers wanted revenge, and execution after a trial process would serve that purpose well. But the architects of the Restoration – Hyde and the landed nobility – required a spectacle that would protect their own posterity, both by eliminating dangerous republicans and by deterring any future leaders from challenging the settled prerogatives of the King and his courtiers. Their talk about the trial as a just reckoning for the ‘horrific’ murder of his ‘sacred’ majesty, was a way of selling it to a public made credulous by Cromwell’s encouragement to think in terms of providence, and hence more easily persuaded that the Restoration was a signal that God was, after all, on the side of monarchy. For an entire class that would henceforth derive its power and its perquisites from the restored King, this ‘trial’ was the opportunity to entrench monarchy in the common law of England, by having all judges declare that any serious act of opposition was a capital felony without prospect of defence.

  To lower the law so that the King would always be above it, reliance was placed upon a new set of judges. Despite Cromwell’s admirable dispassion in judicial appointments – he did not hesitate to promote fine lawyers like Matthew Hale, despite their royalist sympathies – the protectorate bench was not trusted by the new regime. The King could hardly wait to create Orlando Bridgeman his first new peer, as chief baron of the Exchequer, in effect the nation’s chief justice. He had practised mainly in property law, where his ability at protecting great estates was such that even now he is hailed as ‘the father of modern conveyancers’.1 His loyalty to Charles – father and son – had been unswerving, as befitted the son of a bishop. Knighted by Charles I for supporting Strafford, he had defended Laud, served the King at Oxford and led his legal team at Newport. Despite his ‘malignant’ tendency he was permitted to practise during the interregnum: although some restrictions were placed on his court appearances they did not stop him from m
aking a large fortune, or from spying for Hyde.2

  Bridgeman was relied upon to provide intellectual leadership since the other Restoration judges were placemen, with the exception of Matthew Hale (who kept his place, although he was so embarrassed at the regicide proceedings that he said not a word in their entire course). Sir Robert Foster was a fanatical royalist who had defended ship money and had hastened to Oxford in 1642 to serve the King. Sir Thomas Malet, old and garrulous, had been Solicitor-General to the Queen and his son had been killed fighting as a cavalier. Sir Robert Hyde, cousin to Edward, had also joined the King at Oxford and sheltered Charles II on his flight from Worcester: his loyalty was clear and his Restoration reward, a knighthood and judgeship, was automatic. Thomas Twisden was a staunch loyalist who in 1656 had acted, with the prosecution junior William Wyndham, for a merchant, George Cony, who instructed them to challenge the legality of a protectorate customs duty as incompatible with Magna Carta. Cromwell was furious – ‘Your magna farta cannot control actions taken for the safety of the Commonwealth’ – and had them committed to the Tower, whereupon they secured their release by abandoning their clients and apologising profusely for accepting their brief. They were criticised for unprofessional conduct: even Hackney cabmen, the new competitors with Thames boatmen, acknowledged a duty to accept all paying customers.3

  With judges of this ilk, the result of the regicide trial was a foregone conclusion, especially since they were to sit with a number of non-judicial commissioners who were scions of the new establishment. These included the all-powerful Lord Chancellor (Hyde, now elevated as Earl of Clarendon), Monck (now Duke of Albemarle), Manchester and Montague (now Earl of Sandwich) together with other Presbyterian grandees who were soon to be ennobled – Denzil Holles, Ashley Cooper, Arthur Annesley, Harbottle Grimstone and several of the King’s Secretaries of State. This extraordinary cast from the past included the Duke of Ormond and Lord Finch – the architect of the ship-money verdict. Other than the cowed Matthew Hale, there was not a man of principle or jurist of independence among the thirty-four commissioners. Fifteen of them were Presbyterian turncoats who had fought against both Charles I and Charles II, and were now more anxious than anyone to offer up the defendants in expiation. There was only one problem: royalist propaganda against Cromwell’s ‘High Courts of Injustice’ had been sustained and feverish, and it was an article of faith among royalists that their like would not be seen in England again. Thanks to Lilburne, the only tribunal trusted to deliver a popular verdict was a jury: the regime had now to devise a means of controlling this body and incorporating it into the trial of men proclaimed by Act of Parliament to be ‘deeply guilty of that most detestable and bloody treason’.

  The solution was to summon only jurors who had been carefully vetted for loyalty. This required co-operation from the sheriff, but the office was occupied by William Love, a man of integrity with independent religious sympathies (he was later expelled from the cavalier Parliament for criticising the Book of Common Prayer). So there was some delay, until elections for new sheriffs in September brought in more pliable officials.4 The art of jury-packing, subsequently honed by Tory sheriffs, was not, of course, publicised – but ten years later the Mayor of London, Samuel Starling, gave the game away. He had sat as a judge at the trial of two Quakers, William Penn and William Mead, whose jury refused to convict despite his threats (‘You factious fellow,’ Starling screamed at one juror, ‘I will cut off your nose’). When criticised for this conduct, he responded incautiously by boasting how in 1660 he had been ‘esteemed for his loyalty a fit person to be of the jury upon the King’s judges and had passed upon no less than 18 of those assassinating traitors’. It turns out that Starling, a barrister, had been selected for the jury panel to try the regicides because of his previous refusal to take the oath of fidelity to the Commonwealth, thus disabling himself from practising.5 It may be assumed that other jurors had made similar sacrifices for their royalist beliefs before being esteemed sufficiently loyal to vindicate those beliefs by convicting all the defendants. It is a tribute to the assiduity of the new sheriff and his officers that only once in all the trials did the jurors even bother to retire before delivering ‘guilty’ verdicts.

  The regicide trial required careful legal choreography: having rigged the jury, the regime now had to rig the law. Throughout September and early October, Orlando Bridgeman presided over meetings between the professional judges – notably Foster, Hyde and Malet – and the prosecutors, which took place at Serjeants’ Inn just off Fleet Street. The prosecutors were the Attorney-General, Sir Geoffrey Palmer (a member of the King’s legal team at Newport), Sir Heneage Finch and William Wyndham. They were joined by John Kelying, instructed as special counsel for the King, and Sir Edward Turner for the Duke of York, both appearing on behalf of relatives of the victim, something never permitted in English criminal trials before or since. These secret meetings at Serjeants’ Inn were improper, even in 1660. In 1649, Cooke and Dorislaus had openly attended minuted meetings of the King’s judges and advised them on procedure, but had not sought to have them alter the law behind the defendant’s back. A few months later, Lilburne’s complaint that his prosecutors must not be ‘hugger-mugger’ with his judges had been conceded. The Serjeants’ Inn meetings were only revealed years later when Kelying, by then promoted to chief justice, thought that posterity might be interested in his notes of the decisions that were taken about the law. Those decisions were quite sufficient to make the issue of guilt and innocence a formality, because they did not permit of innocence.

  At these meetings, the judges helped the prosecutors to frame the indictment so that it would survive any defence argument. They advised against charging the defendants with murdering the King, because this would create difficulties for convicting those who had not sat as judges, especially the prosecuting counsel (Cooke), the guards (Axtell and Hacker) and the hated preacher, Hugh Peters. Instead, the charge should be for treason by ‘compassing and imagining’ the King’s death, which meant no more than doing or saying something that might conduce to it.6 But treason was a mindset that had to be proved by a course of conduct, i.e. by an ‘overt act’, and in law such an act had to be proved by sworn testimony from two witnesses. So they decided, without hearing argument, to abolish this ancient rule that served as the only safeguard for defendants at treason trials. Since the judges dared not openly abolish a long-standing rule of law, they determined instead to pretend that the ‘two witnesses’ rule remained, but that it was satisfied if one witness testified to one overt act and another witness testified to another overt act. This was intellectually dishonest, because the historic purpose of the ‘two witnesses’ rule was to require corroboration before any single overt act could amount to treason.

  It was further decided that the rules of evidence should be discarded in order to ensure that all defendants were convicted. For example, it had always been a strict rule of criminal procedure that ‘particulars’ of any conduct alleged to amount to the crime should be given in the indictment – so that defendants could not be taken by surprise by sudden accusations. In this case, however, the judges resolved to admit any prosecution evidence of any act ‘which tends to the compassing of the King’s death’ irrespective of whether it was charged or even mentioned in the indictment. The judges, in other words, were promising the prosecutors, before the trials, to abandon the rule which permitted the admission only of relevant evidence, and to permit them to throw at the defendants whatever mud came into their hands – a decision that had to be reversed by Parliament after the demise of James II.7

  The judges and prosecutors were particularly concerned about the ability of the new sheriff to ‘vet’ for loyalty all the jurors who might be required, since each defendant by ancient right was entitled to challenge up to thirty-five. If there had to be separate trials for twenty-nine defendants, that would mean vetting hundreds of jurors and would make the exercise impractical. So another departure from law was authorised, namely that
only one panel – of eighty-six vetted jurors – would be summoned, and that it should not be an objection to any juror at a later trial that he had already convicted another defendant on the same indictment, however similar the facts. This ploy was unscrupulous and unlawful: men charged on the same indictment who are tried separately must always be allowed a dozen fresh jurors, otherwise the prejudice is impossible to combat: the jurors who have already convicted are no longer ‘good men and true’. But the King’s judges were taking no chances.8

  At the Old Bailey, the recorder of London would normally be expected to address the grand jury, preside over the trial and deliver the sentencing homilies. But the recorder, Sir William Wilde, was not exactly ‘one of us’. Although a royalist, he was the son of a vintner (birth now mattered a great deal) and was not as bright as Bridgeman the bishop’s son nor as unscrupulous in his dedication to the cause. So Lord Chancellor Clarendon (Edward Hyde) insisted that Bridgeman preside. The judges decided that the indictment must end with Latin phrases beloved by lawyers down the centuries: the Cromwellian reform which abolished legal Latin would be reversed.9 All defendants who had not yet been apprehended were to be ‘attainted by outlawry’ – a medieval procedure which made it a capital offence not to turn up for trial. (The three regicides captured in Holland in 1662 were in consequence executed without a trial.)

  John Cooke knew nothing of these manoeuvres, although from the fact that other regicides were brought to join Harrison and himself in the Tower he deduced that his hour of trial was nigh. He was still smarting from the unlawfulness of his arrest and was thrown into occasional despondency at the awfulness of the death that awaited him – he had no doubts that the cavaliers would revive ‘drawing and quartering’. But in communications to Mary he was anxious to appear cheerful. ‘Tell Sister Jones’, he wrote with reference to an exceptionally pious member of their congregation, ‘that she but keeps two or three Sabbaths in one week: but in prison, every day is a Sabbath. I smile to think they cannot stop me from preaching – I preach every day to myself.’ He urged the ‘soul-melting consideration’ that they might attain heaven, ‘. . . a sinless, sorrowless, temptationless, oppression-less, sickless, timeless and endless estate . . . I leave you and our dear child in the arms of He who sits in heaven on the right hand of the Father: we need not fear what man can do unto us.’10 Mary was still lodging at the London home of their friend Edmund Ludlow, the stout parliamentarian whose fate Cooke rightly saw as a barometer for his own. When he heard that Ludlow was back at home after giving sureties to the Speaker of the House that he would attend if summoned, he felt reassured. When he heard that Ludlow had fled, he knew his own fate was sealed. If they had come for Ludlow, then they would come for Cooke.11