The Tyrannicide Brief

by Geoffrey Robertson

  Bridgeman called for silence: it was now time to refute a case made with skill and moderation, and which had given the judges no excuse to accuse him of further treason. Cooke’s closing address had taken over an hour to deliver: the four speakers who followed were twice that length. Finch began with sarcasm: ‘If this defendant could not be convicted except by evidence that would render him speechless, then they would stay for a very long time.’ Cooke, he complained, had spoken like a lawyer, making the best arguments his case would bear – indeed, the prisoner was ‘a lawyer of great understanding and of good parts’ but ‘it is a great aggravation to his crime that he who knew the law so well should so much transgress it’. Finch had no answer to Cooke’s central argument that no malice could be implied from his acceptance of the brief, other than to pontificate that ‘no man can have a lawful calling to pursue the life of a king and the law implies malice’. Cooke’s defence was not insolent like the other defendants’ but it still amounted ‘with honesty and good manners, to justification of high treason’. His charge had been exhibited in the name of the people of England, but

  I hope you meet here to tell this nation and all the world that the people of England had no hand in that charge. Do but consider how this prisoner at the bar has hunted the life of the King. How he did fish out and examine evidence about whether the King set up his standard at Nottingham, whether he was at such a place and such a place. To what end is all this but with design of blood? Is it not plainly proved to you by witnesses how he did exhibit the charge, press it, aggravate it, desired it might be taken pro confesso, was afflicted with the delays – how angry he was when he was interrupted! What does he do at last when the thing had gone far? He speaks that which is the only truth I have yet heard from him, He must die and monarchy must die with him – from which event may the good Lord deliver us.

  It was clever rhetoric: by convicting Cooke, the jury as representatives of the people of England would disassociate themselves from any part in the killing of Charles I. If they acquitted Cooke, they would share in his treason. To emphasise this message the Duke of York’s own counsel, who represented the royal family, rose to make a final speech as well. He had no right to do so but this court was not going to stop him, and his intervention was prejudicial in the extreme to the prisoner. He warned the jury against Cooke’s ‘skill and cunning’, and told them in terms that ‘the charge, the pressing for judgment, the request for pro confesso – every step in this tragedy was treason’. As for his claim that ‘I acted as a counsellor for my fee’ – that was ‘the fee that Judas had, the thirty pieces of silver, that made him hang himself’. Now the jury must hang this Judas.

  This was dramatic advocacy, but it still did not meet Cooke’s defence – as Wadham Wyndham, the prosecution’s junior counsel (and its best lawyer) realised. Concerned that Finch’s bluster had failed to nail the defendant, he jumped to his feet. ‘The chief argument the prisoner shelters himself under is his profession – which gives a blast to all of us of the long robe.’ Wyndham himself had betrayed his profession by his cowardly apology to Cromwell for accepting George Cony’s brief, but he continued: ‘a counsellor carrying himself within the compass of his profession is not answerable but if he exceeds the bounds of his profession, then so far from sheltering him it amounts to an aggravation.’ What were the ‘bounds’ that Cooke had exceeded? Wyndham explained, correctly, that if a barrister advises how to kill a man, then he becomes accessory to the murder. Cooke, however, had been asked to advise how to end the impunity of a head of state responsible for mass-murder – although Wyndham did not think of it that way. Advising how to prosecute a king was simply beyond the imaginable bounds of any barrister’s duty. ‘Mr Cooke is as much a traitor as the man in the frock who did the execution.’

  This was not much better than Turner or Finch: these prosecutors were having difficulty in pinning the crime of treason on their predecessor. All eyes turned to Orlando Bridgeman: could he deliver the coup de grâce? For the next hour and a half he unleashed a sustained and ferocious diatribe, telling the jury time and again that Cooke was guilty of high treason. There was no pretence of fairness: Bridgeman would allow no possibility of an acquittal and no possibility that the death sentence might be commuted. He purported to deal only with the evidence, but between the lines of his lengthy summation could be read the clearest belief of the King’s judges – and they were all there, nodding in agreement – that John Cooke had been the evil legal genius behind the King’s trial and was ‘up to his neck in this business’ much more than the evidence revealed. ‘It appears you were privy to this before the proclamation [of the King’s trial],’ Bridgeman let slip at one point, indicating the court’s suspicion – there was no testimony to support it – that Cooke had advised Cromwell long before his brief arrived on 10 January. Backhandedly, he saluted Cooke’s qualities – ‘Truly I do know myself, this gentleman to be a man of great parts in his profession.’ Although the lives of Cromwell’s legal grandees – Whitelocke, St John, Lenthall and the like – had all been spared, John Cooke was different: he was as clever as they, but of lowly birth, and he had a radicalism that could not be suffered, either in the legal profession or in the politics of the nation.

  Cooke’s radicalism derived from his passion for equal justice, a concept that men like Clarendon and Bridgeman could not comprehend. They tried to write him off as a religious fanatic – Bridgeman seized on the phrase Starkey attributed to him: ‘You will see strange things, and you must wait upon God’ as a means of explaining Cooke: ‘These words waiting on God – people use them nowadays when they would do some horrid impiety, which has been the sin of too many. It is canting language,’ he told the jury.10 But Cooke was not a fanatic: he was a radical lawyer who had taken the law’s promise of equal justice to its logical conclusion, by applying it to the most powerful in the land.

  Bridgeman began, continued and ended by directing the jury that every separate step that Cooke had taken as prosecutor of the King – preferring the charge, requesting justice, criticising the King’s delaying tactics, asking that the charge be taken pro confesso, and so on – was in each and every case an overt act which proved his guilt of treason. He scuppered Cooke’s defence by refusing to accept that the court was a court, the prosecutor a prosecutor or the King a defendant:

  If there were nothing else in this case, that a man in a paper should call the King ‘traitor, tyrant, murderer and implacable enemy’ as there his words are – he delivered this paper and it was read – if this be not an overt act of imagining and compassing the King’s death I do not know what an overt act is. [To Cooke] You positively demanded judgement against the blessed King . . . Mr Cooke, it is no excuse to say you hoped or believed they would not take away the King’s life.

  Bridgeman told the jury that Cooke’s defence was no defence at all. The other defendants were impudent or ignorant: that this prisoner was a learned lawyer made his offence much worse than theirs. If counsel speaks treason from the bar on his client’s instructions, he goes outside his professional duty. At the end of the day there could be no possible defence, simply because the King was unprosecutable: ‘No court whatsoever could have any power over a king in a coercive way, as to his person.’11 He drew the jury’s attention to Starkey’s evidence that Cooke had said of the King ‘He must die and monarchy must die with him’ and directed the jury to rely upon this as an overt act, although attested by only one witness – ‘One witness, if you believe him, is as good as twenty witnesses because other overt acts are proved by other witnesses.’12 The Lord Chief Baron was in no danger of correction from an appeal court, because there was no appeal. Every senior judge in the country was now on the bench of the Old Bailey, nodding as if by prearrangement with this jurisprudential ambush, plotted at Serjeants’ Inn. ‘If you have any more to say I will hear you, if not I must conclude to the jury [turning to them]: you hear the evidence is clear for compassing and imagining the death of the King.’

  John C
ooke had a little more to say, namely that if the judges were going to set aside all the acts and authorities of the Parliament ‘whereby I did truly and conscientiously act, and look upon us as so many men got together without authority . . . I humbly make bold to say I have not received satisfaction in my judgment’.13 Bridgeman was implacable – Cooke was now making his case worse by falling back on the authority of the Rump and complaining about the unfairness of the summing-up. ‘Acting by the colour of that pretended authority was, so far from any extenuation, an aggravation of the treason.’ Bridgeman repeated all the steps taken by Cooke as Solicitor-General, and said for the last time, shaking his head as judges do, ‘If these be not overt acts of compassing and imagining the death of the King I do not know what are.’14 He added for form’s sake ‘It must be left to you members of the jury’ but ‘I think you need not go from your bench.’

  The jury, as always, took the hint. After a hurried consultation, they indicated they were agreed. The court ushers called for silence. Cooke was ordered to raise his right hand while the foreman was directed to ‘Look upon the prisoner at the bar: how say you? Is he guilty of treason in manner and form as he stands indicted or not guilty?’

  The foreman, Sir Jeremy Whitchcott, said: ‘Guilty’ and the judge said: ‘Look to him, Keeper’ as the warders grabbed the defendant and took him down to the pen. As the jury left their places, Sir Jeremy – a royalist barrister15 soon to be made Baron Whitchcott for services like this – was ushered to the seats reserved for prosecution witnesses, since he was to give evidence for the crown against the next defendant, Hugh Peters.16

  John Cooke was taken down to the pen at the back of the court, open to the chill autumn afternoon. He had lived by and for the law and now he would die by the law – as declared by judges who had changed it in order to convict him. There was no appeal: Bridgeman would deliver the death sentence later in the afternoon, as soon as Peters was convicted, although before it was pronounced Cooke would have one last brief opportunity to raise points of law. He had often inveighed against legal technicalities which set murderers free because of the misspelling of their names on court documents, and he had noticed that in the Act of Oblivion he had been referred to as ‘I Cooke’ – confused with the Christian name of his late father Isaac. His heavenly father having failed, could his natural father save him now? Or would he be a hypocrite to take the point? He had several hours to think about it, standing in the cold pen while Peters’s trial engaged the court.

  Poor Hugh Peters was not the man he once was. A manic depressive, this was, unsurprisingly, one of his days of deepest depression. He had been waiting in the pen since 7 a.m. for Cooke’s trial to conclude and now, in mid-afternoon, he was dragged into the spotlight. He was sick and confused and a throat infection made him barely audible. He challenged none of the jurors although four of them had sat on Cooke’s jury and the others had all by this stage been ‘blooded’ by having convicted at least one regicide. In his glory days as Cromwell’s chaplain, Peters had been a person of influence and respect. The prosecution witnesses told of his sermons in December 1648 and January 1649, on the text to bind their kings with chains, when he likened Charles I to Barabbas and urged that the choice was between his death or that of the soldiers who would die in a third civil war. These sermons counted as ‘overt acts’, although the prosecution suggested that there was something more sinister to the preacher: he had been ‘sent over’ by the Puritan clergy in Virginia, allegedly to promote ‘reformation’ in England, but they had secretly instructed him to foment a republican revolution.

  Peters’s voice was so hoarse that he had to be brought closer to the judges’ bench to make his denials. The prosecution had no evidence that Peters had ‘compassed’ the King’s death, until George Starkey returned to the witness box in order providentially to provide it, just as he had against Cooke. In December 1648, he claimed he was staying at his father’s house in Windsor where Henry Ireton was quartered and to which Peters frequently resorted and would say (conveniently, within young Starkey’s hearing) that the King was a tyrant and the office of monarchy was dangerous when it was not useless. On one occasion, when Starkey’s loyal father said a grace at mealtime with a special request that ‘God Save the King’, the cleric responded: ‘Old gentleman, your idol will not live long.’ After Starkey, there came evidence that Peters had congratulated Cooke at the close of the first day of the trial on a ‘most glorious beginning of the work’, and Sir Jeremy Whitchcott, who doubled both as a juror and as a prosecution witness, told his fellow jurors how Peters likened the High Court of Justice to that tribunal of the saints which would sit with the returned Jesus Christ in judgment on humankind when the world ended. In this tribunal, however, eloquence deserted Hugh Peters: his questions were feckless and his final speech almost incoherent, ending in pathos as he produced a sheet of testimonials from royalist lords whose lives or families he had saved. ‘We do not question you for what good you have done, but for the evil you have done,’ said Bridgeman coldly, waving them away.

  Peters in his life, as in his death, alternated courage with cowardice: on this, his own day of human judgment, he seemed incapable of inciting anyone to do anything. As the evening drew on he merely shrugged as witnesses recounted how from the pulpit he had vilified the late and blessed King. Only one allegation stirred him to angry and convincing denial – that of an army porter who suggested that Peters might have been the hangman’s disguised assistant. The judges were genuinely interested in solving the riddle of the executioner’s identity and permitted the defendant to call Cornelius Glover, his former servant now working for the post-office. Glover swore that on the day of the King’s trial Peters was ‘melancholy sick, as he used to be’ and remained in bed. The prosecution could not contradict Glover, now a confirmed royalist, and backed away from the allegation that Peters was involved on the scaffold – he was, after all, involved in almost everything else, as preacher, inciter, religious adviser and general busybody. Finch summed up all the occasions on which Peters had been seen consulting or heard praying for the King’s trial and execution, then verbally twisted the knife that was soon to gut the prisoner.

  What man could more contrive the death of the King than this miserable priest? The honour of the pulpit is to be vindicated and the death of this man will preach better than his life did. It may be a means to convert many a miserable person whom the preaching of this person has seduced, for many have come here and said they did it in the fear of the Lord and now you see who taught them. I hope you will make an example of this carnal prophet.

  A ‘miserable priest’ he certainly was, but a ‘carnal prophet’? This unkindest cut of all referred to a rumour amongst the faithful that he had been unfaithful to his wife, a rumour that Peters was most anxious to deny in his last days on earth. The jury instantly agreed on their verdict of ‘guilty’. The hour was very late, daylight had disappeared from the open wall and the overhead skylight, and rows of candles illuminated the judges’ bench and the clerk’s table. Judges in this period would frequently sit until midnight to conclude a case and there was one further formality: to pronounce the sentence of death on both men who had been convicted this day. So John Cooke was brought up from the pen, to stand alongside Peters and receive his sentence. The clerk intoned the familiar preamble:

  ‘John Cooke, hold up your hand. Do you have anything to say as to why the court should not pronounce judgment for you to die according to law?’

  Cooke took a deep breath and made the very objection that he had so often criticised other judges for upholding – the individual excepted out of the Act of Oblivion was ‘I Cooke’ and not John Cooke. Bridgeman brushed the point aside. So he tried another technicality – the overt acts for which he had been convicted had not been particularised. This had been a serious defect in the indictment against all the regicides, but the judge and prosecutors had resolved at their meetings in Serjeants’ Inn that the rule requiring particulars – an elemental protection
for the defendant against being taken by surprise – would not apply. ‘This cannot help you,’ snapped Bridgeman, anxious to finish. Cooke repeated his point that he had acted professionally, but Bridgeman’s patience was now at an end. ‘The profession of a lawyer will not excuse treason – this has been overruled and is overruled again.’ Cooke was at the end of his tether – he began to stutter out a final point – that the House of Commons had de facto authority – but Bridgeman shook his head. ‘This is all passed and overruled.’ ‘Then I have no more’ were John Cooke’s final words in a court of law. All that was left was the sentence. The Lord Chief Baron peered down through the gloom at the two men he was to eviscerate:

  I shall not need to tell you what it is to die. You are men of liberal education. You have had time, a great deal of time, to think of it and therefore I shall spare my labour of telling you about that eternity you are to enter. You know very well it is the law of this nation that no one House or even both Houses of Parliament have any coercive power over the King, much less to put him to death, and you know that the imprisoning of the King is treason. You know, both of you, this undoubted truth – the rule of law is that the King can do no wrong in the estimation of the law . . .

  He then intoned the death sentence:

  You shall be drawn upon a hurdle to the place of execution and there you shall be hung by the neck and being alive shall be cut down, and your privy members to be cut off, your entrails to be taken out of your body and (you living) the same to be burnt before your eyes, and your head to be cut off, your body to be divided into four quarters and your head and quarters to be disposed of at the pleasure of the King’s Majesty. The Lord have mercy upon your souls.