The Tyrannicide Brief

by Geoffrey Robertson

  In the stink of his cell on these drawn-out summer days, John Cooke gave increasing thought to the allegations that would be levelled against his fellow prisoners. Although the opportunity to talk together in the Tower was limited, they could pass messages through helpful warders and speak at brief meetings in the corridors, and it was to Justice Cooke they all turned for legal advice. They were not minded to go meekly to the slaughter, but they would need the assistance of counsel to face the pantheon of royalist lawyers and judges.

  The show trial opened, without their presence or even knowledge, on 9 October, when a grand jury was summoned to decide whether the prosecution evidence was sufficient to send them to trial. This ceremony took place at Hicks’ Hall in John Street, Islington, a large building donated for public use by a wealthy merchant. It was a down-market venue for the thirty-four noble commissioners summonsed to sit on the bench for ‘the trial of the pretended judges of his late sacred majesty’. Twenty-one grand jurors were sworn, all rock-solid royalists – nine of them were knights, having inherited the title or received it from Charles I, the man into whose murder they were sworn to enquire. Amongst them, ironically, was the dissolute poet Sir Charles Sedley, who was to make his own contribution to English criminal history three years later, when a drunken party on his Covent Garden balcony ended, according to a law report, by his ‘pulling down his breeches and excrementalising on the crowd below’. The King’s judges decided that they, and not the lax church courts, should punish any act that was ‘against public morality’ and fined Sedley, who left the court complaining that he was ‘the first man to pay for shitting’.12 His task as a grand juror was to listen to the law of treason expounded by the Lord Chief Baron, and then to confer in secret with the prosecutors in order to return a billa vera – a true bill – against those prisoners who appeared from the evidence to have breached that law.

  Bridgeman’s speech set out the legal basis for Stuart absolutism: the King could do no wrong. Moreover, as wearer of what Bridgeman called ‘the imperial crown’, Charles I was so untouchable that the mere thought of touching him – by putting his person under any force or constraint – was treason. That thought, i.e. that ‘imagining or compassing’, was proved by an ‘overt act’ sworn to by two witnesses or else (the Serjeants’ Inn twist) by two or more overt acts described by one witness each. Once treason was proved in this way, there was no defence at all, whether of necessity or duress or self-defence. Since the King was above the law, he could never be put on trial by any authority, so – this was fundamental to Bridgeman’s direction – it would be unlawful for the Commons and Lords to establish any court to try the King or to impeach or attaint him. It followed that it could not be lawful for the House of Commons – a purged House of Commons at that – to do it alone. Since the prisoners were proposing to argue that they had acted by order of the only authority in the country at the time, namely the House of Commons, Bridgeman’s speech rejected their defence before it was even raised. The flavour of his charge to the grand jury is captured in these excerpts:13

  Gentlemen,

  This commission is into a special occasion, the execrable murder of the blessed King who is now a saint in heaven, King Charles I . . . by the statute of Edward III (1351) it is made high treason to compass and imagine the death of the King . . . in the case of a king, his life is so precious that intent alone is treason. What is imagining or compassing? Truly, it is anything which shows what the imagination is. Words, in many cases, are evidence of the imagination – they are evidence of the heart.

  I must deliver you the plain and true law: that no authority, not the people collectively or by their representatives, have any coercive power over the King of England. The King is immediate from God and has no superior – he is our sovereign Lord, and sovereign means he is supreme . . . the imperial crown is not subject to any human tribunal or judicature whatsoever . . .

  The King can do no wrong: that is a rule of law, it is frequently found in our law books, Lord Coke’s and many others. If he can do no wrong, he cannot be punished for any wrong. The King has the infirmities and weaknesses of a man, but he cannot do any injury – he must do it by ministers, who if they do wrong, although by his command, are punishable. As to the person of the King, he is not to be touched: ‘Touch not mine anointed’. The King is immediately under God, accounting for his power to none but God.

  Bridgeman was winding the clock back to the days of absolute monarchy, reversing all the constitutional gains of the last half-century.14 He placed medieval theology at the core of England’s constitution by his statement that the King was a sacred personage accountable to God alone. He misstated the law of treason, too, which had hitherto required proof of an overt act both tending and intended to overthrow the monarch and not of acts showing no more than hostile intent. (Spoken words, for example, had never been regarded as sufficient for a conviction of high treason: the rule was that ‘bare words may make a heretic, but not a traitor’.)15 But it would be idle for the defendants to object that Bridgeman was wrong in law: ‘In this case they are all guilty,’ he told the grand jury. ‘Their first consultation was treason.’ His closing direction was, quite literally, bloodcurdling:

  You are now to enquire of blood, of Royal blood, of sacred blood, blood like that of the saints . . . this blood cries for vengeance and it will not be appeased without a bloody sacrifice . . . Remember this: you are persons of honour and know the obligation of an oath. He that conceals or favours the guilt of blood, takes it upon himself. Willfully, knowingly, takes it upon himself.

  The grand jurors had been warned: if they refused to indict men so patently guilty of shedding the King’s blood they would themselves be guilty of treason. Bridgeman ended his charge with a fervent ‘God Save the King’ and the jury chorused ‘Amen’. Bridgeman had sent a chilling warning to all who had collaborated with Cromwell. As one of the government lawyers who had attended Hicks Hall reported back to Samuel Pepys, ‘In Sir Oliver (sic) Bridgeman’s charge, he did wholly rip up the injustice of law against the King from the beginning, and so it much reflects upon all the Long Parliament; that though the King hath pardoned them, yet they must hereby confess that the King does look upon them as traitors.’16 The jury were quickly convinced by the prosecutors to return a ‘true bill’,17 and the court adjourned until 9 a.m. the next day, when the prisoners would be arraigned at the Old Bailey.

  The defendants were all being held in solitary confinement in the Tower. At about 9 p.m., warders told them the news that the grand jury had sent them to trial for high treason, and that they would be required in the morning to plead to the indictment (which so far they had not seen). At 6 a.m., they were roused and herded into several large coaches, and driven under heavily armed escort to their new accommodation at Newgate Prison, adjacent to the ‘Sessions House’ in the Old Bailey. It was built of stone, but like most criminal courts of the period, the front was left open to the elements. Keeping them in the fresh air would reduce the risk that judges would catch their prison diseases. Prisoners stood there in a ‘pen’ waiting to be sent up the steps to the ‘bar’ – a railing across the body of the courtroom, facing the row of judges. At about 9 a.m. the prisoners were marshalled at Newgate and herded across the street to the pen, shuffling in their fetters and leg-irons. In court, the commissioners had already assembled, and some of the spectators who had jeered the prisoners as their coaches arrived at Newgate had taken their seats in the public gallery.

  There was a buzz of excited anticipation as the regicides were brought up, one at a time, to the bar of the court.18 Sir Hardress Waller was first: he had been one of the King’s judges but had supported Coote’s coup in Dublin, and the government believed he could be pressured into a plea of guilty – he had been told that this was the only way to save his large estate and possibly his life. Next was Thomas Harrison, demonised by royalists ever since he had brought the King on his last journey from Hurst Castle to Windsor. He was now seriously ill from a fever caug
ht in prison but was notoriously unrepentant. It was determined that an example should be made of him: his signature was on the King’s death warrant, so he could have no defence against the treason charge. Nor could the other unrepentant judges – Scroop, Clement, Scot, Carew and Jones – whose trials were slated to follow in quick succession. The purpose of selecting these regicides for the first easy cases was to settle the legal rulings and spread a little terror by executions before the more difficult trials – of Cooke and Peters and Axtell.

  John Cooke advised his fellow prisoners that they had a right to counsel to argue any point of law arising on their trial: they should explain that they had been in solitary confinement and had not yet seen the indictment. They would need counsel to argue that the court had no jurisdiction to try them because in 1649 they had acted under a commission from Parliament, and Parliament’s orders could not be questioned or invalidated in a court of law. This was the defence Cooke had devised for all of the regicides; it was self-evidently a point of law which entitled the prisoners to counsel. But the court had other ideas. In an opening scene that begs comparison with the patience displayed by Bradshawe at the opening of the King’s trial, Bridgeman bullied Sir Hardress Waller into a plea of guilty. In 1649, when the King had refused to plead, he was given five days to make up his mind. Waller was given less than five minutes:19

  CLERK OF THE COURT: How say you, Sir Hardress Waller? Are you guilty of that treason whereof you stand indicted, or not guilty?

  WALLER: My Lords, I dare not say ‘not guilty’ but since in this business we have no counsel and no advice and are not able to speak as to matters of law . . .

  BRIDGEMAN: I am loathe to interrupt you but this is the course. You have heard the indictment read and the course is you must plead guilty or not guilty. There is no medium. That is the law. Are you guilty? Or not guilty?

  WALLER: I may confess myself guilty of some particulars in that indictment but not of all otherwise I shall wound my conscience.

  BRIDGEMAN: No man standing at the bar in the condition you are, must make any other answer to the indictment than ‘guilty’ or ‘not guilty’. It is the common case of all men. Either guilty or not guilty.

  WALLER: My Lord, I do desire some time to consider it for it comes as a great surprise.

  BRIDGEMAN: You have had enough time to consider it. You must follow the directions of the court. Are you guilty or not guilty? You must not thus discourse about being surprised for such discourse is contrary to proceedings of this nature.

  Bridgeman then invoked the pro confesso rule – plead or be deemed guilty – to pressure a plea from this confused defendant:

  BRIDGEMAN: There are but three things to be considered. Either you must say guilty, which is a confession and there remains nothing further but judgment. If you say not guilty, then you shall be heard. Judgment will pass if you stand mute which is as if you had confessed.

  WALLER: In as much as I have said I dare not say ‘not guilty’ I must therefore say ‘guilty’.

  The next prisoner, Thomas Harrison, was made of sterner stuff:

  HARRISON: My Lord, I have been kept a close prisoner for nearly three months so that nobody might have access to me. Do you now call on me to give a legal answer, not knowing of my trial till 9 p.m. last night, and brought away from the Tower to this place at 6 o’clock this morning?

  BRIDGEMAN: You must give your exact answer, guilty or not guilty. You cannot say it is sudden or unprovided. You spend our time in vain. You trouble the court.

  HARRISON: I desire to be advised about the law. This is a special case.

  At this point, Finch the Solicitor-General made a sarcastic intervention which drew laughter from the crowd. ‘I beseech your Lordship to make him plead. Perhaps he knows his case so well that he thinks it would be as cheap to defy the court as to submit to it.’ It was a cheap shot, the first of many that Finch would level at men he was dispatching to the gallows. In groups of three or four they were put up from the pen, and allowed to say nothing but ‘guilty’ or ‘not guilty’. After Waller, only Major General George Fleetwood (cousin to Charles Fleetwood) pleaded ‘guilty’. John Cooke was prisoner number 25. His arraignment went brusquely:

  CLERK: John Cooke, hold up your hand. How say you? Are you guilty of the treason whereof you stand indicted or not guilty?

  COOKE: I humbly conceive that this is now time to move for counsel to argue a matter of law.

  BRIDGEMAN: You know too well the manner of the court. Are you guilty or not guilty?

  COOKE: Not guilty.

  The pleas were all taken within the hour, although there was some resistance from Henry Marten, who objected that his name was not in the indictment:

  BRIDGEMAN: How is his name written?

  CLERK: It is Henry Martin.

  MARTEN: Henry Martin? My name is not so. It is Harry Marten.

  BRIDGEMAN: The difference of the sound is very little. You are known by the name of Martin.

  MARTEN: I humbly submit that all penal statutes ought to be understood literally.

  Cooke had suggested that Marten take the point – it had been one of his repeated complaints that guilty prisoners were let off on exactly such technicalities. This time, however, Bridgeman ordered that the trial proceed because the two names sounded the same. He made no effort to stop the crowd roaring abuse when Hugh Peters – the most hated of the defendants – was hauled up from the pen to make his plea. When he failed to give the correct answer to the clerk’s formal question ‘How would you be tried?’ (he said ‘By the word of God’ instead of ‘By God and the country’) the audience fell about with laughter. Most of the prisoners were old, and now sick from jail fever: they seemed cowed and bewildered by the power that had gripped them so suddenly and put them back in the public spotlight for a few moments.

  The last defendant hauled up from the pen was Daniel Axtell, the soldier who had commanded the guard at the King’s trial but had never served in any decision-making capacity and should never have been included in the indictment. Others had meekly accepted the court’s improper refusal to allow them counsel before they were forced to plead, but Axtell showed something of the spirit of the late John Lilburne: ‘I desire to have the freedom of an Englishman, which is my right by law and inheritance. I have a point of law to offer . . . and I pray that counsel be assigned me.’ The point of law was significant, but Bridgeman incanted: ‘No man can justify treason. If the matter be justifiable, it is not treason. If treason, it is not justifiable.’ This was the catch-22 upon which lawyers were denied to all the prisoners: they were ordered to plead immediately, either guilty or not guilty, else they would be deemed to have confessed. Samuel Pepys at dinner that evening heard the talk of the town: the regicides had made their first public appearance and ‘they all seemed to be dismayed and would all be condemned without question’.20

  The shared dismay of the morning turned to a resigned camaraderie amongst the prisoners by the evening. In the Tower they had been in solitary confinement but in Newgate, although hobbling in chains, they could mingle and plan and pray together; they could meet their families and talk to ordinary prisoners. In the heightened atmosphere, spiritual fervour was intense, although Cooke was not unmindful of the consequences for his property: unlike Harrison, who cheerfully told his wife that he only had a Bible to leave her, Cooke had a smallholding in Ireland and he fretted lest it ‘be taken away from my poor wife and child’. He told friends that his greatest desire was that his baby daughter, Freelove, should have a Puritan upbringing. Those who paid their way into the visiting yard at Newgate found him full of Christian cheer: ‘little do my enemies think what a friendly service they do me, to hasten me to my father’s kingdom.’ Cynicism came from the ordinary prisoners, most of whom were robbers. They were unimpressed by Cooke’s piety, pointing out that Jesuit priests had gone to their execution just as cheerfully. They knew he was a judge, and they attacked him for punishing robbers. (In prison, law enforcers are invariably abused by o
rdinary felons.) ‘I have relieved many of you so far as by law I could, because the worst of men should have justice,’ replied Cooke in his own defence. ‘I dare not wrong any man for I know I shall meet them at the bar on the Day of Judgment.’

  At 7 a.m. on Thursday 11 October, Thomas Harrison went on trial.21 He knew some of the jurymen all too well, and challenged those he knew were biased: soon he had exhausted his thirty-five challenges. Solicitor-General Finch opened the prosecution case by explaining to the jury that the law against treason was based on the theory that kings were ‘God’s vice-regents on earth . . . their subjects stand accountable to them for the very thoughts of their hearts – and it’s the thought of the heart which makes the treason; the overt act is but the evidence of it’. Finch gave the jury a potted royalist history of the process by which ‘this blessed King, this glorious saint’ was tried and condemned – ‘I had almost said, crucified’. At the very news of the execution ‘many poor subjects at home and some Protestants in foreign nations, fell down dead’. As the prosecutor finished the audience began to hum – a rising wall of sound to presage the defendant’s death. But Bridgeman would not allow melodrama. ‘Gentlemen, this humming is not at all becoming . . . it is more fitting for a stage play than for a court of justice.’