The Tyrannicide Brief

by Geoffrey Robertson

  18. Tristram Hunt, The English Civil War, above note 7, p163–4.

  19. S. R. Gardiner, History of the Great Civil War, (London, 1987), Vol. IV, p5.

  20. ibid, p30. Stories about Cromwell and Ireton disguising themselves as tipplers at the Blue Boar Inn at Holborn, waiting to intercept riders with the King’s letters sewn into their saddlebags, have the flavour of invention – correspondence from Carisbrooke to the Queen in Paris was not likely to have been routed via London.

  21. Gardiner, Constitutional Documents (above note 8), p335.

  Chapter 6: The Poor Man’s Case

  1. Cooke’s Poor Man’s Case, The Retrospective Review (November, 1853), p21.

  2. John Cooke, Unum necessarium; or The Poor Man’s Case, an expedient to make provision for all poor people in the Kingdom (London, 1648).

  3. The Poor Man’s Case, p42.

  4. ibid, p43.

  5. ibid, p44 & 65.

  6. ibid, p68.

  7. ibid, p64, 65.

  8. ibid, p66.

  9. ibid, p68: Cooke refers to his ‘dear father’s’ objections to the profession.

  10. Hugh Peters, A Word for the Army, 11th October, 1647.

  Chapter 7: Malignant Blood

  1. A Declaration of the Commons of England in Parliament assembled expressing their reasons and grounds for passing the late resolutions touching no further addresses or Application to be made to the King dated 11 February, printed 15 February, 1648 under the hand of Henry Elsing, clerk to Parliament. This very important document does not appear in Gardiner or Kenyon’s collections of constitutional papers of the period.

  2. S. R. Gardiner, History of the Great Civil War, (London, 1987), Vol IV, p119 – citing Allen’s Narrative, in The Somers’ Collection of Tracts, ed. Walter Scott (London, 1811). vi, 500.

  3. Gardiner, ibid, p191.

  4. Gardiner, ibid, p217.

  5. In a petition to Parliament on 18 October. See Perfect Occurances, 13–20 October, 1648.

  6. The Remonstrance was published in Perfect Occurances for 17–24 November. It was signed by John Rushworth as secretary of the Army Council and dated 18 November. It too is unaccountably omitted from Gardiner (Documents) and Kenyon, The Stuart Constitution 1603–1688 (Cambridge, 1966).

  7. Perfect Occurrances, 17–24 November, entry for 20 November.

  8. Perfect Occurances, 29 September – 6 October, entry for 2 October (Thomason E 5 26).

  9. Monthly Mercury, 8 November 1648.

  10. See Gardiner, History (above, note 2), p249–53.

  11. The situation in the first week of December was confused: Ireton and his Army colleagues and their Leveller allies, true to the principles of the Remonstrance, wanted the Long Parliament dissolved. But the Independent MPs with whom they met over the next few days urged a purge of Parliament, not a dissolution.

  12. Perfect Diurnall, 4–11 December. It notes that Major Rolph had written from Carisbrooke to inform Parliament of Fairfax’s order to take the King to Hurst: some officers had demurred, but most felt the General’s command had to be obeyed.

  13. Ludlow, Memoirs, (Edinburgh, Sands 1751), 1, p211–12.

  14. The Perfect Diurnall 4–11 December (entry for 6th December).

  Chapter 8: To Clutch the Swimming Hare

  1. Acquittals were rare, but not unknown: if they occurred, the jurors would be summoned by the Star Chamber to explain themselves. See John Bellamy, The Tudor Law of Treason, (London, 1979), p171.

  2. John Cooke, Monarchy No Creature of God’s Making (Waterford, 1651), p115.

  3. Recent unpersuasive attempts have been made to attribute a ‘neo-Romanist’ republicanism to some of the early parliamentarian leaders, based on their familiarity with Cicero and the Roman historians. They rely too much upon ‘neo-classical’ concepts in Harrington’s Oceana, but that was not published until 1656 and had no influence on men like Cooke or Peters or other leading Independents. The basic influences on the regicides were the common law, Magna Carta and the bible. ‘Neo-romanism’ as a factor in the English revolution is being given far too much credence (notwithstanding the presence of Roman law expert Isaac Dorislaus on the prosecution team at the trial) e.g. by Quentin Skinner, Classical Liberty, Renaissance Translation and the English Civil War, in Visions of Politics, Volume II: Renaissance Virtues (Cambridge University Press, 2002); Adam Tomkins Our Republican Constitution (Hart, Oxford, 2005), p52–56; Jonathan Scott, ‘What were the Commonwealth Principles?’ Historical Journal, Vol. 47, No 3 (Cambridge, 2004).

  4. Hosea, 8:4; 13, 9–10.

  5. Monarchy, above note 2, Preface. Although written two years later, Monarchy is an elaboration of the beliefs that Cooke, Peters and others held at the time of the trial.

  6. ibid, p20.

  7. ibid, p29.

  8. Ibid, p93.

  9. Ibid, p103.

  10. Ibid, p50.

  11. Drunken cavaliers were quarrelling in the Strand and threatening each other with pistols: see Perfect Occurrences 17–24 November, entry for 23 November.

  12. A Vindication of the Ministers of the Gospel, 27th January 1649, cited by Elliot Vernon, The Quarrel of the Covenant: The London Presbyterians and Regicides, in Jason Peacey (ed.) The Regicides and the Execution of Charles I (Basingstoke, 2001), p202.

  13. See Margo Todd, ‘Isaac Dorislaus’, Oxford Dictionary of National Biography (Oxford, 2004).

  14. See Ruth Spalding (ed.), The Diary of Bulstrode Whitelocke 1605–1675 (Oxford, 1990), entry for 19 December 1648.

  15. Cooke had been retained in a legal capacity by the Army. In Monarchy no Creature (above note 2) at p60 he refers to ‘the army whereby I was sometimes advocate, and count it honourable to be a member of an army fighting for Christ . . .’

  16. A Perfect Diurnall, 28 August – 4th September (E526) report for 31 August. Sir Thomas Herbert records their presence at Newport in his memoirs, reproduced in Roger Lockyer (ed.), The Trial of Charles I, (London, 1971), p42.

  17. Quoted in Robert Partridge, ‘O Horrable Murder’, The Trial, Execution and Burial of Charles I, (London, 1998), p49.

  18. See Lockyer, note 17 above, p61.

  19. Most commentators fail to notice that the meeting was at the Duke’s request. (See Perfect Occurrances 8–15 December – ‘Upon a letter from Duke Hamilton, Lieutenant General Cromwell is gone to Windsor and intends suddenly to return to Westminster.’ Cromwell’s main interest in meeting the Duke would have been to find out whether any Presbyterian MPs were complicit in ‘the engagement’ or supportive of the Scott’s invasion, although he might have suggested that the Duke pass on the offer of a ‘plea bargain’ – abdication in return for exile – to the King, who would shortly join the Duke at Windsor.

  20. Perfect Diurnall 11–18 December, entry for 16 December. Interestingly, the Rump, for all its closeness to the Army, seems to have had no inkling of the decision to bring the King to London. On 15th December it ordered that 3 falcons and loads of shot be sent to Hurst (obviously for Charles’ sport) together with large quantities of gin and a Union Jack to fly from the battlements to signify a King in residence – for what they must have supposed would be some time.

  21. ibid, 18–25 December, entry for 18 December.

  22. See G. Robertson and A. Nicol, Media Law (London, 2002), p401.

  23. John Bellamy, The Tudor Law of Treason (London, 1979), p234.

  24. M. H. Keen, The Laws of War in the Late Middle Ages, (London, 1965 repr 1993), p53.

  25. A common saying that reflected the law of war: see Pierino Belli, de rei militari et bello tractatus (1563), or A Treatise on Military Matters and Warfare (Vol. 2, Oxford 1936, translation by H. C. Nutting) Chapter II. 16 (‘Whether a captured general of the enemy should be spared’). Gentili, always more humane than other jurists of the time, reluctantly agreed that captured enemy leaders and even Kings could be killed if their survival would imperil the peace or if they were treacherous: ‘even Caesar thought it folly to spare men who had more than once figu
red as his opponents.’ De Jure Belli Libri Tres (1612 Hanau; Oxford 1933) translated by J C Rolfe, p385; 477–481; 525.

  26. Spalding, Diary, above note 14, at p226–7. Whitelocke, who could never bear to be away from the centre of power, returned to undertake judicial functions in early January.

  27. Bishop Burnet’s History of His Own Time, (Thomas Ward, 1724), p46.

  Chapter 9: The Hare, Clutched: Cooke’s Charge

  1. Journal of the House of Lords, X641, See S. R. Gardiner, The Great Civil War, (London, 1987 ed), p288.

  2. Perfect Diurnall of some passages in Parliament, 18–25 December, entry for 23 December.

  3. Perfect Diurnall, 25 December – 1 January, entry for 27 December.

  4. Rushworth, in Lockyer, The Trial of Charles I (London, Folio Society), p71.

  5. Bishop Burnet’s Life and Death of Sir Matthew Hale (1682), p13 erroneously claims that Hale ‘was not suffered to appear’. The King made no application to be represented by Hale, who advised him in private.

  6. S. R. Gardiner, History (note 1 above), p288–9.

  7. Journal of the High Court of Justice, as attested by Phelps, published by J. Nalson on January 4th, 1683. See Muddiman, The Trial of Charles I, Appendix A, p193.

  8. Rushworth, in Lockyer, Trial, (note 4 above), p76–7.

  9. C. V. Wedgwood, The Trial of Charles I, (London, 1964), p102.

  10. Lucy Hutchinson, Memoirs of the Life of Colonel Hutchinson, (Phoenix, 1995), p235. She points out that the King’s trial was urged in petitions presented by the regiments of the very men – especially Fairfax and Ingoldsby – who come the Restoration were to pretend most strenuously that they had opposed the trial.

  11. Perfect Occurrances, 22–30 December, report 27 December.

  12. According to a report in Perfect Occurrances for 3rd January, possible prosecuting counsel were discussed as early as that date.

  13. Lucy Hutchison, above note 10, p234.

  14. John Cooke, King Charles: His Case, published in Muddiman, Notable British Trials, Trial of Charles I (London, 1928), p258.

  15. ibid, p257.

  16. Historians assume too readily that the lawyers rather than the politicians were responsible for the length of the first draft charge. Cooke asserted at his own trial that ‘it will appear, I hope, that some would have had a very voluminous and long charge, but I was utterly against it’. (An Exact and Most Impartial Accompt, p119.) Had his prosecutors found any evidence to the contrary (and they had witnesses – e.g. Nutley – to the painted chamber proceedings) they would have called them to testify against Cooke. Nutley instead pointed the finger at Harrison as the source of the pre-war allegations (‘let us blacken him what we can’). Cooke made clear that this additional material – about Charles conniving at parricide, the Irish atrocities, Eliot’s death, the loss of La Rochelle, etc – was irrelevant to his charge of treason and tyranny. See the preface to King Charles: His Case. Sean Kelsey’s valuable demonstration that the outcome of the trial was not pre-ordained does not gain from his strange notion that the MPs took over Cooke’s charge and watered it down so the King would have a better chance of acquittal. (See below, note 28 to Chapter 10) On the contrary, the final narrow charge was much more devastating for the defendant than the original blunderbuss indictment.

  17. R v Charles I, 4 State Trials, p1070–1072. The procedural decisions related on p142–4 are found in the short minutes taken by Phelps at all meetings of the Court.

  Chapter 10: The King’s Trial

  1. This story has been routinely accepted by historians to embroider their accounts of the trial, although it is derived from a highly dubious source – a very partisan prosecution witness at the regicide trials eleven years later. It was told then to implicate Marten by the spy Purback Temple, who claimed to have bribed the custodians of the Painted Chamber to let him hide in the recess behind the tapestry. From which hiding place, of course, he could not have seen the ruddy-complexioned Cromwell blanch. And the answer attributed as a stroke of genius to Marten was very similar to the formula that the court had already agreed the previous day (as Phelps’ minutes confirm), namely that Cooke would present the charge ‘in the name and on the behalf of the people of England’.

  2. They resolved that if the King ‘in language or carriage towards the court be insolent, outrageous or contemptuous’ the Lord President should decide whether to ignore or admonish him, or order him to be taken away or else adjourn the court.

  3. Richard II, Act 4, Scene 1. See Charles Carlton, Charles I – The Personal Monarch, (London, 1995), p336.

  4. 4 State Trials, p1078–9.

  5. ibid, p995.

  6. The Moderate. No 28, 16–23 January 1649 (p228), Sir Thomas Herbert, in his self-serving (and hence Charles-serving) memoirs claims that he scrabbled around for the silver tip, but he was on the other side of the King and could not reach it. (Herbert, Memoirs (3rd edition, 1815), p165.

  7. 4 State Trials, p995 and see p1073.

  8. Ibid, p995–7 and p1073–6.

  9. Ibid, p1074.

  10. Ibid, p1075.

  11. Ibid, p1076.

  12. See Testimony of Thomas Richardson, R v Peters in 1660, (‘An Exact Account . . .’), (London, 1660), p162.

  13. Sir Philip Warwick, Memoirs of the Reign of King Charles I (London, 1701), p380. The ubiquitous Peters seems to have had the run of St James’s Palace while the King was there.

  14. J. G. Muddiman, (ed.) Notable British Trials, Trial of Charles I (London, 1928), p98.

  15. Testimony of James Nutley, R v Cooke(1660), An Exact and Most Impartial Accompt . . ., p107.

  16. ibid, Regicide Trial, R v Peters, Testimony of Mr Chase, p167–8.

  17. 4 State Trials, p1079–80.

  18. Perfect Occurrances, 5–12 January, entry for 10 January. Prynne had been committed to prison for contempt of Parliament. Whitelocke was back on the Bench, which granted the habeus corpus after he had conferred with the Commons. See Spalding, Diary (above), p228.

  19. Thus Fairfax was urged by Colonel White, one of his senior officers, to court-martial the King rather than to put him on trial: See S R Gardiner, History of the Great Civil War, (London, Windrush, 1987), Vol. IV, p302.

  20. Regicide Trial, p111, evidence of Joseph Herne.

  21. 4 State Trials, p1081–2.

  22. Ibid, p1082–3.

  23. Ibid, p1084.

  24. Regicides’ Trial, Herne, p112.

  25. John Cooke, King Charles, His Case in Muddiman, p235.

  26. Ibid, p250.

  27. State Trials, p1096.

  28. Ibid, p1093.

  29. Ibid, p1098.

  30. Ibid, p1098–9.

  31. See Muddiman, Trial, p211. Muddiman erroneously labels these minutes, taken by Phelps, as ‘Bradshawe’s Journal’.

  32. Sean Kelsey, for example, thinks that ‘somebody was playing for time’ because ‘the colourful wartime recollections of a handful of non-entities . . . constituted extremely weak evidence indeed.’ On the contrary, the evidence of common soldiers, from both sides, proved beyond doubt that the King bore command responsibility for the sufferings of ordinary people in the wars. The incriminating documents Cooke tendered for examination – the King’s intercepted messages – provided the best evidence of his guilt. Kelsey’s notion that ‘Parliamentary commanders and leading civilian politicians could have easily provided far better evidence’ is also mistaken: what better cue for royalists to cry ‘victor’s justice’ had the likes of Cromwell or Haselrig testified against Charles? See Kelsey, ‘Politics and Procedure in the Trial of Charles I’, Law and History Review, Spring 2004, Vol. 22 No.1, p19–21.

  33. 4 State Trials, p1099–1113. The public turned up as usual at Westminster Hall, so Dendy and the usher were sent to tell them to depart – the Court was sitting in private in the painted chamber: Perfect Occurrances, 18–25 January, entry for 24 January.

  34. Muddiman, Trial, p214. Holder’s successful plea against self-incrimination was
on Thursday, 25 January.

  35. ibid, p1108, Testimony of John Vinson.

  36. ibid, Testimony of Will Cuthbert.

  37. ibid, Samuel Lawson, p1105–6.

  38. ibid, Humphrey Browne, p1107.

  39. Ibid, Richard Price (the scrivenor who engrossed Cooke’s charge, and who had met the King in 1643 as an emissary on behalf of the Independents).

  40. ibid, Henry Gooch, p1111.

  41. Ibid, p1113.

  42. Regicides’ Trial, Starkey Testimony, p116–7. Starkey at first put this evening meeting after the second or third trial session but then thought it rather ‘in the interim of time before the sentence, for there was an adjournment for a day or two’. This would sensibly date it (if it took place at all, which Cooke denied) on either the Thursday or the Friday night.

  Chapter 11: Farewell Sovereignty

  1. Whitelocke, Memorials of the English Affairs from the Beginning of the Reign of Charles I to the Happy Restoration of Charles II, (London, 1682), Vol. II, p507.

  2. 4 State Trials, p1115–6.

  3. The following exchanges are from 4 State Trials, p1122–4.

  4. See Regicide Trial, (‘An Exact and Most Impartial Accompt . . .’), London, 1660, Axtell’s trial, p189–92. Royalist legend attributes both interjections to Lady Fairfax, although if she was involved it is likely only to have been on the first day, when her husband’s name was called.

  5. Under the agreed court rules, Downes was entitled to secure an adjournment, without self-indulgent flourishes, simply by asking for one. Had he done so publicly there was no reason why the reports would not have indicated the fact. The only report which records his interjection is that of Nalson, a royalist whose version was not published until 1684. (See 4 State Trials, p1125).

  6. Whitelocke, Memorials of English Affairs, above note 1, p509.

  7. A true and humble representation of John Downes Esquire touching the death of the late King, so far as he may be concerned therein, 1660. Downes was a businessman-MP who played very little part in the Long Parliament, but made a fortune by buying and reselling royalist estates. His ‘peevishness’ had been displayed earlier in the month when he had accused another member of the court, the theologian John Fry (forebear of author/actor Stephen Fry), of blasphemy, forcing Fry’s withdrawal from the trial and his suspension from Parliament until he cleared his name.