Westminster Hall in term time: the courts of King’s Bench and Chancery are at the far end: booksellers, and barristers pretending to be busy.
Title page of John Cooke’s first publication.
A barrister begs parliament for an ‘angelical ordinance’ to relieve the poor.
Cromwell: warts, middle-age spread and all.
General Thomas Fairfax: the real ‘Black Tom’.
The army council, 1647, with Fairfax in command.
‘Freeborn John’ Lilburne at the Bar, quoting Coke’s Institutes.
Charles between the bars: as seen in 1648.
Charles in the dock: an idealised drawing by Royalist painter Edward Bower, from a courtroom sketch, probably on 22nd January: Charles clutches his speech notes but not his cane.
A contemporary engraving of the court scene – the most accurate representation.
Detail of above: note proximity of John Cooke (C) to Charles I (B).
Title page to Cooke’s King Charls his Case, 1649.
How the King’s execution really looked: above the black drapes, Charles speaks to Juxon, while the axe-man, with false beard and mask, waits.
Charles as blessed martyr and icon: front page of the samizat bestseller Eikon Basilike.
Crimes against humanity: how a Puritan tract depicted the 1641 atrocities committed by Irish Catholics against English protestants in Ireland.
Justice Cooke’s account of his near death experience in the great storm, January 1650. Thomas Brewster sold the work in London.
‘The ranters ranting’, the cult that takes Calvinism to its logical conclusion.
‘Take away that bauble’. Cromwell boots out the Rump parliament, April 1653.
Man of law and man of God: John Bradshawe and Hugh Peters, by Sir Peter Lely.
John Lambert, the republic’s lost leader.
Edmund Ludlow – the voice from the watchtower.
George Monck – a turncoat’s turncoat.
Charles II, who turned out to want more than ‘his leg of mutton and his whore’.
Lord Clarendon, aka Edward Hyde, mastermind of the Restoration.
Sir Orlando Bridgeman – ‘the King can do no wrong’.
The Sessions House in Old Bailey. This 1720 drawing shows the court rebuilt after the great fire, but with the open pen and the railing to which prisoners were brought to take their trial.
A contemporaneous illustration of the execution of two regicides – presumably Peters on the gibbet whilst Cooke’s body is chopped into four quarters.
Tyrannicides: the pantheon of republican martyrs (and Oliver Cromwell).
Notes on Sources
John Cooke’s writings survive among the Thomason tracts – an exhaustive collection of the pamphlet literature of the period – in the British Library, the Bodleian and elsewhere. The Vindication of the Professors and Profession of Law (1646) was reprinted in 1652, by which time Cooke was Cromwell’s chief justice in Munster and his reform proposals were highly relevant to the newly established Hale commission. The work provides a unique critical account of the law in practice and as practised in London at the time of the civil war. King Charles: His Case, intended, as its subtitle explains, ‘to have been delivered at the bar, if the King had pleaded to the charge, and put himself upon a fair trial’, was republished as an appendix to the second and subsequent editions of Edmund Ludlow’s Memoirs. Cooke’s earliest writing that survives – his letter to Strafford in 1641 – was transcribed by William Knowler and first published by Professor Firth: the original has disappeared, but there can be no doubt about its authenticity (neither royalists nor republicans could gain from depicting John Cooke as a Straffordian).
Cooke’s long resignation letter to Fleetwood, written in August 1655, survives in the Bodleian Library (RAWL.A.189) and was published in full by Edward MacLysaght in Irish Life in the Seventeenth Century (Cork University Press, 1950) as a commentary upon the legal system. Cooke’s letters to Henry Cromwell survive in Thurloe’s collection of state papers. Some doubt attends the attribution of Magna Charta, a broadsheet acquired by Thomason in December 1659 from a shop at Temple Bar. Its contents lend some support to Professor Prest’s DNB conjecture that its author ‘JC’ was in fact John Cooke. I am more confident of his authorship of A Sober Vindication, which was published anonymously early in 1600: it bears Cooke’s stylistic hallmarks and was printed by Giles Calvert, his former publisher. Ludlow (who must have known) tells us that Cooke wrote such a vindication but adds – perhaps for his own comfort – that his enemies never discovered Cooke’s authorship.
My account of the King’s trial draws upon standard sources: Gilbert Mabbott’s A Perfect Narrative (the most detailed contemporary report, republished in Volume IV of State Trials); the official transcript (sometimes inaccurately called Bradshawe’s Journal) that was presented to Parliament in December 1650 and is now in the Public Records office; the minutes taken by John Phelps of the Painted Chamber meetings, found (amongst extraneous royalist comment) in Nalson, A True Copy of the Journal of the High Court of Justice for the Trial of King Charles I (1648); John Rushworth’s version of the trial (edited by Roger Lockyer for the Folio Society, 1974) and various contemporary newsbooks. The commitment to open justice meant that these proceedings were comprehensively reported; the ‘CW’ at the end of Mabbott’s version probably stands, with initials reversed, for William Clark, the army stenographer who reported so vividly the Putney debates. Some of these transcriptions are fuller than others and differ in phraseology but not in substance: they have not been contested by royalists subsequently and indeed the official transcript was relied upon at the 1660 trials. The exchanges between Bradshawe, Cooke and the King given in this book come down to us virtually verbatim and the quotations – with grammatical and linguistic updating and editing – reflect these original texts. Uncertainties remain about the interjection by the masked ‘malignant lady’ rumoured to have been Lady Fairfax and as to whether Downes openly manifested his dissent as he later alleged, but they do not much matter: it is not disputed that there were two interjections from the gallery to which Axtell responded or that Downes and some judges were in favour of granting the King’s request to address a joint sitting.
The most important legal proceedings in English legal history have rarely been analysed. The irresponsible decision to entrust editorship of the Notable British Trials volume published in 1928 to the fanatical royalist J. G. Muddiman ensured that this important publication was perverse in scholarship and barely readable. The first seventy pages comprise a diatribe against Cromwell, dotted with tributes to the ‘saintly’ King and accounts of his travails at the hands of ill-bred tormentors. Muddiman’s account of the trial opens with an incredible story that a woman who shouted support for the King in Westminster Hall was ‘branded with hot irons on her shoulders and her head so her flesh smoked and her hair set on fire’ – under the gaze of thousands, none of whom ever mentioned this spectacular combustion. This incident, as Wedgwood shows in her Trial of Charles I (p. 236, note 27) was invented many years later by a woman prisoner in order to cadge money from a bishop. It is typical of the improbable allegations with which Muddiman litters his account. There was probably a political motive for his choice as editor: the Tory Lord Chancellor, Birkenhead, notes in his introduction that ‘the present volume definitely supersedes the account of the trial in State Trials . . . a whig compilation’. In 1990 the American Notable Trials library republished Muddiman, with a confused foreword by Alan Dershowitz. The work at least contains in its appendices the official report (the so-called Bradshawe’s Journal) and an accurate text of John Cooke’s ‘speech’, although Muddiman accepts as factual Wharton’s untrue libels on Cooke and makes the elementary mistake (on p. 66) of confusing him with another barrister of the same name, from Westminster not Leicester, who had been admitted to Gray’s Inn in 1594 – fourteen years before Cooke was born!
In 1964, C. V. Wedgwood published The Trial of Charles I – a readable (if discursive) boo
k that has become, for want of any rival, the classic account. It judiciously exposes some of Muddiman’s partisan errors but makes some elementary mistakes: ‘Cooke launched into the charge with evident enjoyment’, writes Dame Veronica (p. 129) – an enjoyment evident to nobody at the time, since Cooke did not read the charge. She upbraids him for writing to his wife ‘in this hortatory vein’ (p. 221) a letter that was written to someone else. This fine historian of the period lacks the legal insight to understand John Cooke.
The regicide trial quotations are taken from An Exact and Most Impartial Account of the Indictment Arraignment Trial and Judgement (According to Law) of Nine and Twenty Regicides, the Murtherers of His Late Sacred Majesty of Most Glorious Memory. It appeared on 31 October 1660, just a fortnight after Cooke’s execution: on 6 November Pepys ‘found good satisfaction in reading thereof’. According to Anthony Wood it was edited by Bridgeman from Heneage Finch’s notes, and this ‘official’ transcript was reproduced in State Trials and has never been questioned. However it is certainly not impartial and is demonstrably inexact. For example, in Cooke’s case Bridgeman deals with arguments made by the defendant that do not appear in his transcribed speeches, which must therefore have been edited; there are statements attributed to Bridgeman which read fairly but seem to have been inserted for presentational reasons, since they are either out of context or are promises upon which the court never delivers. However, the evidence and the detailed arguments are substantially reproduced. Although the account was hastily produced for the propaganda purpose of satisfying people like Pepys of the rightness of the proceedings, the bias of the court comes through loud and clear.
The Speeches and Prayers of the Regicides together with several occasional speeches and passages on their imprisonment was acquired by Thomason on 1 December 1660 and to a large extent republished by the editors of State Trials. While some of the prison dialogue is questionable, most later historians of the period, including Christopher Hill and C. V. Wedgwood, have seen no reason to doubt the general authenticity of the work. The scaffold speeches were heard by numerous witnesses (many of them hostile) and would undoubtedly have been declared as forgeries at the trials of Brewster and other publishers, had that bloodhound censor L’Estrange found any evidence (in respect to Cooke’s scaffold speech in particular) that they did not approximate to reality. Indeed, Justice Hyde’s condemnation of Cooke assumed that his ‘letter from the Tower’ and his gallows address as published by Brewster in the seditious volume were authentic.
J. G. Muddiman, horrified that these ‘horribly blasphemous lies’ had been accepted by editors of the State Trials and by entries in the Dictionary of National Biography, devoted many articles in Notes and Queries (19 April 1913 onwards) under the pseudonym of ‘J. B. Williams’, to alleging that they were forgeries. He overlooks the trial of Brewster, and rests his case upon the fact that Henry Muddiman, reporting for Mercurius Publicus, described Cooke as ‘penitent’ on the scaffold. But Henry Muddiman was the government licensor who refused to allow any report of Cooke’s speech to be published. His own brief news despatch contained only two details, namely that Cooke had ‘heartily prayed’ for Charles II and had asked that Peters might be reprieved for he was in no condition to die. Significantly, both details appear in Cooke’s scaffold speech, as published in The Speeches and Prayers. The reflection on Peters’s cowardice would certainly have been omitted if the publication were (as J. G. Muddiman contends) a forgery intended to whitewash all the regicides. Cooke’s forgiving remarks about Charles II (‘I say as to the King’s majesty I have not heard any hard thoughts concerning him: my prayers shall be for him that his throne might be upheld for truth and mercy’) were a prelude to his request that the King should spare the lives of Peters and the other regicides, and were not, in context, any sort of apology for his part in prosecuting Charles I. J. G. Muddiman argues that Cooke’s letter from the Tower is a forgery, on the grounds that anyone who has read Cooke’s ‘scurrilous and semi-literate pamphlets’ would realise that the letter was written by ‘a more highly educated man than Cooke’. Here, royalist venom gets the better of reason: Cooke was one of the most highly educated men of his time and the ‘letter to a friend’ is written in exactly the same style as the Vindication and his other pamphlets. It is, in fact, vintage Cooke – if it were a forgery (and why bother?) it would have purported to come from Newgate (from which prison letters were readily smuggled) rather than from the Tower.
J. G. Muddiman is a strange obsessional figure whose undoubted familiarity with the newsbook literature of the period gives his writings a certain interest, but his ignorance of the law and his morose hatred of Cromwell and Cooke make his own commentaries upon them unreliable. His fixation with refurbishing the reputation of his ancestor, Henry Muddiman, verges on the comical: he seems to have used the pseudonym ‘J. B. Williams’ whenever promoting Henry’s work, so that readers would not recognise his family connection. He makes a fetish of preferring accounts in news-sheets to trial transcripts, but this reliance on what Nalson called ‘the paper bullets of the press, scandalous and calumniating’ is the equivalent of writing the history of modern Britain using The Sun as the primary source. His attacks on John Cooke, in short articles in obscure historical magazines early in the twentieth century, are in their twisted way a tribute to the lawyer he sets out to diminish.
Westminster Hall, by Hollar. The head of John Cooke was placed on a pole above the door, (left): Pepys saw it from the opposite side of the courtyard
Notes
Chapter 1: A Man of the Middling Sort
1.Isaac and Elizabeth Cooke lived at Sketchley, a hamlet of Burbage, where the minister, Anthony Grey, was an aristocratic Anglican. See Nichols, John, The History and Antiquities of the County of Leicestershire (Wakefield, 1970), Vol IV, p468.
2.J Craigie (ed), The Basilikon Doron of King James VI, (Edinburgh, 1944), I p81.
3.Speech to judges in Star Chamber, (1616) C.H. McIlwain (ed) Political Works of James I, (Cambridge, 1918) p327.
4.The True Law of Free Monarchies, written by James in 1598 when he was King of Scotland.
5.Especially as he tells it: see Coke, Reports, 1600–1659, 12.41. The most commonly quoted version of the encounter is given in John, Lord Campbell, Lives of the Chief Justices 2nd Ed, (Oxford 1858), p272.
6.See Austin Woolrych, Britain in Revolution, 1625–1660, (Oxford, 2002), p20. In Calvin’s case (1608) all the judges – including Coke and Bacon – accepted that the King’s authority came from God.
7.Coke ‘gave Englishmen an historical myth of the English constitution, parallel to Foxe’s myth of the English religion . . .’ He did not reinvent Magna Carta, but ‘made it the possession of every propertied Englishman’: Christopher Hill, Intellectual Origins of the English Revolution Revisited, (Oxford, revised 1997), p228–30. Note that Coke’s advice ‘to the grave and learned writers of histories is that they meddle not . . . with the laws of this realm, before they confer with some learned in that profession.’ (p201)
8.Nichols, above note 1, p486, gives the pedigree of Cooke of Sketchley, from the ‘Visitation’ – a census taken by the King’s officials – in 1619. Unfathomably, John Cooke is given an alias – ‘Brodfield’ – which originates with Abraham’s father and attaches to the first-born son thereafter – Abraham, Isaac and John.
9.See David Underdown, Rebel Riot and Rebellion: Popular Politics and Culture in England, 1603–1660, (Oxford, 1985), p10.
10.C. S. L Davies and Jane Garnett, Wadham College (Oxford, 1994) p20.
11.Walter Ralegh, History of the World, 1736 ed, Preface XV.
12.John Cooke, Unum necessarium or The Poor Man’s Case, an expedient to make provision for all poor people in the Kingdom (London, 1648), p44.
13.See Glen Burgess, Absolute Monarchy and the Stuart Constitution (Yale, 1996), p5
14.John Cooke, The Vindication of the Professors and Profession of the Law (London, 1646) p94.
15.ibid, p56.
16.ibid, p13.
17.Sibbes, The Sword of the Wicked, cited (note 68) by Mark E. Dever, ‘Moderation and Deprivation: A Reappraisal of Richard Sibbes’, Journal of Ecclesiastical History, Vol. 43 No3 July 1992.
18.Noel Henning Mayfield, Puritans and Regicides, (London, 1988), p57.
19.The Five Knights Case is reported at (1627) 3 State Trials, 1.
20.The controversy continues in academic circles. Compare J.A. Guy, ‘The Origins of the Petition of Right Reconsidered’, in 25 Historical Journal 2, (1982), p289, with Mark Kishlansky, ‘Tyrrany Denied: Charles I, Attorney General Heath, and the Five Knights’ Case 42 Historical Journal 1 (1999), p53. The judges’ excuse to parliament was disingenuous: their ruling upheld the King’s absolute right to detain ‘by special command’ for any reason, and for a period which might not have been indefinite but which they had declined to limit. See James Hart, The Rule of Law 1603–60, (Harlow, 2003), p126.
21.Conrad Russell, Parliaments and English Politics 1621–29, (Oxford, 1979), p352.
22.Wilfrid R. Prest, The Rise of the Barristers (Oxford, 1986) p270.
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