The Tyrannicide Brief

by Geoffrey Robertson

  Harrison was not intimidated. In his opening remarks, he pointed out – almost proudly – that the execution was ‘not a thing done in a corner’. He asked the jury to remember something that Finch dared not mention: ‘You know what a contest has been in these nations for many years. Various members of the bench were formally as active . . .’ But the court cut him short. ‘This is not to the business,’ Bridgeman interrupted. The jury must not be reminded of the civil war, let alone of the fact that half the judges had then opposed the King. Harrison turned to the argument that he acted by order of Parliament, the highest court in the land, whose orders could not be questioned in this or any other court. The indictment alleged that the regicides had been ‘inspired by the devil’ to usurp the King’s authority, but ‘I say, this was done rather in fear of the Lord . . .’ At this, Bridgeman’s anger could no longer be contained and his mask of politeness slipped:

  ‘Away with him. Know where you are, Sir. You are in an assembly of Christians. Will you make God the author of your treasons and murders? Take heed where you are. Christians must not hear this!’

  Harrison asked again for counsel, to argue the legal point that the House of Commons was in January 1649 the de facto government and could establish a court to try the King. ‘This is a new treason for which he deserves to die,’ protested Finch. ‘The King is not accountable to any coercive power.’ Any argument to the contrary would itself be treasonable, and no barrister could be permitted to make it. The court agreed, and Finch called his evidence proving that Harrison had sat on the court and signed the death warrant and had forcibly taken the King from Hurst Castle to Windsor. At one meeting in the Painted Chamber he had urged Cooke to elaborate the charge – ‘Let us blacken him what we can’ were Harrison’s words, said crown witness James Nutley, then a young barrister assisting Cooke.

  The prosecutor closed with an attack on Pride’s Purge. This caused a shifting and shuffling among some of the commissioners: the prosecutor was telling their story, and although they were meant to be sitting as judges, they were going to have their say. Arthur Annesley interrupted first: ‘I do still more willingly speak to this business . . . I was one of that corrupt majority (as they called it) that were put out of the House . . . all those who had a mind for peace, who minded their duty and trust, were seized on by this gentleman [he pointed at Harrison] and his fellows.’ Denzil Holles waved his fist and raised his voice at the defendant. ‘You do very well know that this horrid, detestable act could never be perfected until you had broken the Parliament . . . so do not make Parliament the author of your black crimes . . . your plea is overruled.’

  The judges were turning into witnesses, and then into prosecutors. Even the professional judges descended into the arena, vilifying the defendant in front of the jury. Old Justice Malet muttered sadly: ‘Sir, what have you done? You have taken away him that was our father.’ Justice Hyde shouted: ‘Your plea is naught, illegal and ought not to be allowed.’ Sir William Wilde, the recorder passed over for the better-connected Baron Bridgeman, became impatient for a conviction: ‘I beseech you, my Lord, direct the jury for their verdict. This gentleman forgets their barbarity – they would not even hear their King.’ These comments were made in front of the jury, who were left in no doubt about the verdict the judges expected. To ram it home, Bridgeman stopped Harrison from asserting that the King had started the war, and turned to the jury:

  Methinks he should be sent to bedlam, till he comes to the gallows to render an account for this. This must not be suffered. It is a new impeachment of the King, to justify their treasons against his late majesty.

  The counsel for the Duke of York, in effect, for the royal family, stood up for the first time. There was a hush, as Sir Edward Turner addressed the crowded bench.

  My Lords, this man [he pointed to Harrison] has the plague all over him. It is a pity any should stand near him for he will infect them. Let us say to him, as they used to write over a house infected by plague, ‘The Lord have mercy upon him’ and so let the officer take him away.

  The fact that King’s counsel was permitted to make malicious jokes about the ill-health of the defendants added another dimension of prejudice to the general viciousness that pervaded these proceedings. As an added terror, the hangman (carrying the rope and halter in his arms) stood in the well of the court opposite the prisoner, who was forced to make his defence while staring at the brawny arms and steely countenance of his executioner. Bridgeman, for all his artificial politeness, fully endorsed this behaviour, and even picked up Turner’s cruel point, telling Harrison: ‘The end of your speech is nothing, but to infect the people.’ Harrison replied with some dignity: ‘You are uncharitable in that. I have been kept six months a close prisoner and could not prepare myself for this trial with the help of counsel.’ But the court had suffered this defendant for over an hour, and it was time for Bridgeman to bring down the curtain.

  ‘Imagination alone is treason by law,’ he told the jury in a short summing-up. It was proved by overt acts, and Harrison had confessed to participation in the meetings of the High Court and to conducting the King from Hurst Castle, and such forcible constraint over the sovereign was treason. ‘The evidence is so clear and pregnant that I think you need not go out.’ The jury took the hint: without bothering to move from their seats they all nodded and their foreman – the royalist Sir Thomas Allen – loudly declared: ‘The prisoner is guilty.’ Finch jumped to his feet to ask that sentence be passed on Harrison immediately – an improper request, because the convicted prisoner was always entitled to at least a day’s grace so he or his counsel could prepare a motion ‘in arrest of judgement’ – asking that further consideration should be given to points of law which could vitiate the conviction. But Bridgeman had been rehearsing his dread sentence, directing the butchery of the body by hanging, drawing and quartering, and decided it should now ring out on Harrison.

  It was a sentence which Bridgeman would intone repeatedly over the next week. On Friday, juries convicted five former MPs, selected as unrepentant representatives of the Parliamentarians who had the impudence to judge their King.22 Adrian Scroop had served in various parliamentary capacities – sitting with Monck and Broghill as a commissioner for Scotland, for example. John Carew, of wealth and position in Cornwall, had served both the commonwealth and the protectorate as a member of the Council of State, as had Gregory Clement. Colonel John Jones had been a Welsh MP leading troops for Parliament in England and later Ireland where, as a commissioner since 1650, he had worked closely with John Cooke. His added attraction as a scapegoat was the fact that he was related to Oliver Cromwell. Thomas Scot, the London alderman and MP, had twice fled the country to avoid royalist revenge – on the first occasion his ship was seized by pirates who robbed him and put him ashore in Hampshire. His friends subscribed for his second sea passage on a vessel which made an unscheduled landfall on Spanish territory, where he was again seized. As good luck this time would have it, the governor had been the Spanish ambassador to England during the commonwealth and had admired Scot, whom he immediately set at liberty. But on hearing of Charles II’s proclamation and assuming that he could save his life by surrendering within forty days, Scot returned to England voluntarily, where he was imprisoned and now put on trial for his life. In this court, there was no chance that he would be three times lucky.

  The first juror to be ‘called to the book to be sworn’ in Scroop’s trial was none other than Sir Thomas Allen, the foreman of the jury which the previous day had convicted Harrison. Scroop made the obvious point – that those jurors who had already convicted a defendant should not be called again, but received Bridgeman’s acerbic response: ‘This is nothing to you.’ He ruled that Scroop’s attempt to explain his actions was an aggravation of his treason – a point seized upon by Lord Finch, who interjected. ‘You shelter yourself under a command of the House of Commons, but let me tell you and all the world, that if the House of Commons (let it have been never so complete) had given a
command, it had been a thing no ways justifiable.’ Finch’s own impeachment in 1642, for corruptly serving the King’s interest in the ship-money case, had been by overwhelming vote in both Houses, and it was a measure of the backsliding of the time that men like Denzil Holles, who had been among the first to accuse him then, could sit comfortably beside him now, condemning former comrades to death. Scroop faced down Holles and Montague and Annesley and all the other turn-coat judges. ‘If I have been misled, I am not the only one . . . I could say (although it does not become me to say) that [he looked at the bench] I see a great many faces that at this time were misled as well as myself.’ The fifteen judges who had fought for Parliament, most of them now wearing the ermine robes of their very recent peerages, stared back at him unflinchingly: hypocrisy was not yet an embarrassment to public men.

  Scroop was convicted after Bridgeman had told the jury that they need not bother to retire. He was pulled down into the pen, to be replaced by John Carew. The first juror called – allegedly at random, but he had been the first called in every case – was Sir Thomas Allen. After Finch’s opening address, the audience began the death hum, but Carew fought bravely for the right to tell the truth about who started the war:

  ‘I desire to have time to speak about how it was begun or else how shall I be able to make my defence? I shall declare the grounds upon which the Parliament did proceed . . .’

  But the judges would not allow it: Carew could not be suffered even to mention that the King had made war on the Parliament. But some of them insisted on reliving their own roles in the old parliamentary caucuses: Arthur Annesley jumped in to condemn Carew for opposing him that notorious night in the Commons on 5 December 1648, when they debated whether the Treaty of Newport offered any grounds for peace. Carew made an objection, all the more effective for its understatement:

  ‘I am a stranger to many of these things you have offered, and this is strange. You give evidence, sitting as a judge.’

  Bridgeman should have silenced Annesley: instead, he launched into a pithy summation with the usual sting in its tail: ‘I think you need not stir from where you are, members of the jury, but I leave that to you.’ After a momentary consultation the ‘guilty’ verdict was delivered and Carew was hauled down to the pen, to be replaced by Thomas Scot. His trial was to be the highlight of the day and the crowd had already begun to whisper at the sight of the familiar face – and body now stooped with age – of William Lenthall, the Speaker who had once defied Charles I with a momentous claim to parliamentary privilege. Now, in an attempt to retrieve his fortune, Lenthall had come to court to destroy that very privilege. He was called as a prosecution witness to testify that the previous March, on the last day of the Long Parliament, Scot had told the House that he was proud of his part in the judging of Charles I – so proud, in fact, that he would wish it engraved on his tombstone.23

  SCOT: You speak of words that I have uttered in Parliament. I do humbly insist on this, that I am not to answer any allegation of this nature. It is a high breach of privilege.

  SOLICITOR GENERAL (FINCH): There is no privilege of Parliament for treason.

  BRIDGEMAN: I would have you understand that in case a man should commit an act of treason, be it in what place so ever, there is no hiding place or sanctuary for treason.

  Bridgeman ruled that MPs could be put to death for words spoken in the House of Commons; evidence of their ‘traitor’s heart’. There would be no privilege of free speech in Parliament until 1689, when his ruling was reversed by the Bill of Rights.

  Scot pleaded that by surrendering within forty days he had earned the pardon promised by the King’s proclamation. ‘Pardon’ was an ancient and legitimate plea, often advanced at criminal trials by defendants claiming to be beneficiaries: evidence was heard and the issue decided, as a matter of law, by the judges. But Bridgeman now played a trick on Scot, telling him that most regrettably he had raised this issue too late – it was a point of law which had to be taken before he pleaded, or not at all. This was a breathtaking ruling, for Bridgeman himself had refused to hear any argument – even a request for counsel – before these defendants had pleaded. He shut out a legitimate argument that should have saved the defendant’s life, covering the deceit with a promise to Scot and Scroop that the warrant for their execution should not issue ‘till consideration be had how far you are within the compass of that proclamation’. Bridgeman was a member of the cabal advising the King; he knew that both men had been marked down for execution, and that the promise of a pardon would in their cases be dishonoured. At the end of this long and doleful day, all five defendants were brought to the bar to hear their collective death sentence for the murder of ‘a prince whom we who had the honour personally to attend knew was of such unparalleled parts and virtue’.

  The prisoners trooped back to Newgate late on Friday night, to find that Thomas Harrison’s execution warrant had already been issued. He was taken down to the dungeon to prepare himself for the ordeal, crying out, ‘This is nothing to what Christ has undergone for me.’ The five newly convicted men had no doubt that their turn would shortly come: they reproached themselves for naivety in believing the King’s proclamation. Cooke listened to their accounts – he had heard the proceedings only imperfectly from the pen – and determined to take a different course. He would not disavow the regicide, but would not be caught out in ‘new treason’ by attempting to justify it. As he had lived by the law so he would hazard his life on its application to his case. He would respect the court, its procedures, and even its judges, and make a defence which would stand up to future scrutiny, at least among his own profession. The prosecution would have to prove he was ‘instrumental’ in the King’s execution, so he would take his stand on the principle that a barrister has a duty to accept any brief to appear in a court in which he is entitled to practise, without suffering for the cause of those who instruct him. With this professional principle for his shield, John Cooke stepped up to the bar of the Old Bailey, at 7 a.m. on the morning of Saturday 13 October.

  18

  The Trial of John Cooke

  TRIALS ARE NOT meant to begin with a joke and certainly not a joke by the defendant. ‘I desire to challenge none of my jurors, other to enquire about their profession,’ he said. ‘I do not want to meet with any butchers just yet.’ This reminder of the fate which a guilty verdict would bring amused the large audience – and annoyed Bridgeman, who later struck the remark from the official record.1 Most of the jurors had already convicted co-defendants in the previous trials, so Cooke asked ‘Because my life depends upon their indifferency, I beseech your lordship to demand of the sheriff whether any of them are pre-engaged [i.e. to the royalist cause]. I hope they are not and for that reason I have not challenged any.’ Bridgeman, who knew all about the vetting that had produced ultra-loyal jurors, dissembled politely: ‘Sir, the officer reads their names out of his papers. I suppose he does not pick and choose them. I would not have him, and I am sure he will not, do you any wrong in that particular.’

  Finch opened the case for the prosecution. The prisoner stood at the bar

  as a wicked instrument who with his own hand subscribed and exhibited a charge of high treason, a scandalous libel against our sovereign . . . he would not suffer his Majesty to speak in his defence, but said he spun out delays and asked that the charge might be taken as if he had confessed it – he pressed the court that judgement might be given against the King.

  To all this the defendant had an answer, but Finch ended with an unexpected allegation: that Cooke had once said: ‘The King must die and monarchy with him.’ ‘There in truth’, said the prosecutor, ‘was the treason and the cause of that fatal blow which fell upon the King.’

  Cooke was nonplussed, but had no time to dwell on this new allegation. The first witness was called – James Nutley, the law student who had been his pupil at the time of the King’s trial. Nutley had refreshed his memory from the transcript, and gave an accurate recitation of the course of th
e proceedings: the reading of Cooke’s charge by the clerk and the King’s responses; Cooke’s eventual request – pressed several times – that the charge be taken pro confesso. Nutley added that on 20 January he had been in the Painted Chamber and observed the charge being formally written on parchment by a scrivener named Price: Cooke was standing in the vicinity, presumably dictating it. The scroll was shown to Nutley and he identified Cooke’s signature. Finch asked: ‘What discourse have you had at any time with the prisoner at the bar concerning this impeachment?’ Nutley was a barrister and by now a seasoned crown witness, but either out of compassion for his old tutor or in order to minimise his own previous republican commitment, Nutley threw a life-line to the defendant:

  Truly my Lord, I knew the gentleman well. I was well acquainted with him and for the satisfaction of my own conscience (for I was very tender in the business and sorry he was engaged in it) I went to him and did desire him to desist. I had discourse with him, for I was then a young student in the Temple and had a little knowledge in the laws. I desired him to consider the dangerous consequences of such a proceeding. I did it with tears in my eyes, for I had a very good respect to the gentleman for his profession’s sake, being learned therein. Truly my Lord he did answer me thus. ‘I acknowledge it as a very base business, but they put it upon me. I cannot avoid it, you see, they put it upon me.’