The Tyrannicide Brief

by Geoffrey Robertson

  8. Downes said at his trial that he raised a further point, encouraged to do so by Peters and by ‘private whispers’ from another he declined to name but gave sufficient clues to identify as Cooke. Downes described this person as ‘one of them that is gone and hath received his sentence and doom’. Downes was tried on 16 October 1660, the day that Cooke was executed. See Regicide Trial, p261–2.

  9. Regicide Trial, p244.

  10. ibid, p269.

  11. Lucy Hutchinson, Memoirs of the Life of Colonel Hutchinson (Phoenix, 1995), p234.

  12. Muddiman, ed., Notable British Trials (London, 1928), p235.

  13. Richard II, Act III, Scene III, Lines 87–89. The Bishop of Carlisle, later in the play, predicts that ‘children yet unborn shall feel the day as sharp to them as thorn’, Act IV, Scene I, Lines 322–3.

  14. 4 State Trials, p1008–16.

  15. See Genesis 9, Verse 35.

  16. 4 State Trials, p1017 and 1128.

  17. ibid, p1128.

  18. ‘Bradshawe’s refusal to allow the King to speak after his conviction was the final suggestion of a show trial’ say Kishlansky and Morrill in their entry for Charles I in the Dictionary of National Biography (Oxford, 2004). On the contrary, it was customary criminal procedure at the time.

  19. Amongst the commissioners recorded at this meeting was John Downes – which casts doubt on his post-restoration claim that he spent this time weeping in the speaker’s office. Downes signed the death warrant on the following Monday.

  20. See King Charles: His Case, in Muddiman, Notable British Trials (London, 1928), p235.

  21. Rushworth in Roger Lockyer (ed.), The Trial of Charles I (London, Folio Society, 1974), p133–4.

  22. See Muddiman, above note 12, or 4 State Trials, p1018–22.

  23. State Trials, p1025.

  24. Ibid, p1032.

  25. See Theodore Meron, War Crimes Law Comes of Age, (Oxford, 1998), p8–9.

  26. A Gentili, De Jure Belli Libri Tres (1612) Carnegie edition translated, J C Rolfe, 1933, p74. See Meron (above), p128.

  27. See Cooke, King Charles: His Case, in Muddiman, p248.

  28. The argument is developed by D. Allan Orr, Treason and the State, (Cambridge, 2002), p52.

  29. A Gentili, De Jure Belli Libri Tres (1612), Carnegie edition translated, J. C. Rolfe, 1933, p122.

  30. The Trial of Charles I, ed Lockyer (above note 21), p122.

  31. She was the wife of Sir William Wheeler. See Lockyer, op cit.

  32. Regicide Trial, evidence of Ewer (p247).

  33. C. V. Wedgwood, Trial, p195.

  34. The axe-man was probably Richard Brandon, the common hangman who had disposed of Strafford and Laud and could be expected – it was his professional duty – to perform the execution without a hitch. There is no doubt that he was brought with his instruments to Whitehall that morning by a troop of soldiers despatched by Axtell, and the sheer professionalism of his performance – the executioner knew to tuck the hair inside the victim’s cap and to bend for forgiveness – indicated a man born to this grisly trade, which Brandon had inherited from his father. Although his published ‘confessions’ are inauthentic, there is some evidence that he accepted £30 in half-crowns for the job and that the King gave him an orange laced with cloves that he sold in Rosemary Lane, where he lived, for 10 shillings. See Thomason Tracts (British Library) E561 (12 + 14). It is very likely that his disguised assistant was a soldier, trusted by the army to take Brandon’s place if the hangman quailed at the last moment. William Hulet, from Colonel Hewson’s regiment, is the likeliest candidate: he was convicted at the regicides’ trial of beheading the King, but subsequently pardoned: see Chapter 19.

  35. The description of the King’s last moments is taken from the account by John Rushworth in Lockyer (above note 21).

  36. The ‘universal groan’ was an early essential of royalist mythmaking, although it begins as a metaphorical lament at the funeral not the execution. Thus in March 1649, the Bishop of Chichester published ‘A Deep Groan Fetch’d at the Funeral of that Incomparable and Glorious Monarch Charles I.’

  Chapter 12: ‘Stone Dead Hath No Fellow’

  1. J G Muddiman, The Trial of Charles I, Notable British Trials, (London 1928), p167.

  2. Mercurius Elencticus 7 February 1649. Given Wharton’s capacity for invention, the quote is probably apocryphal.

  3. Purbeck Temple had the facility of being everywhere the prosecution in October 1660 needed him to be in January 1649 – it was he who claimed to have hidden behind the tapestry in the Painted Chamber and later to have heard the interjections of Lady Fairfax. Royalists bridle (still) at the suggestion that Jane was the King’s mistress: they claim that their intimate embraces at Carisbrooke were to disguise the smuggling of letters.

  4. Lockyer (ed.), Trial of Charles I, (Folio Society, London, 1974), p142–3. For the same reason, the ashes of the Nazi leaders were, after Nuremberg, strewn over a fast-flowing river so that no shrine would be available for future mourners.

  5. Whitelocke, Memorials, p540.

  6. Sir Charles Lucas, A Penitential Ode for the Death of King Charles, see Andrew Lacey, Elegies and Verse in Honour of Charles the Martyr, Jason Peacey, (ed.) The Regicides and the Execution of Charles I (Basingstoke, 2001), p235.

  7. Whitelocke, Memorials, p517.

  8. Hugh Ross Williamson, The Day They Killed the King, (New York, 1957), p154.

  9. See S R Gardiner, Constitutional Documents, p381 & 384.

  10. ibid, p385–6.

  11. The Tenure of Kings and Magistrates in Orgel and Goldberg (eds.) John Milton (Oxford, 1991), p276.

  12. The need to make good this comparison explains the false accusations at the regicide trials about how soldiers reviled the King and spat on him in the passageways, and note evidence of Tomlinson, Regicide Trial, p219, that the ‘incivilities’ amounted to smoking and keeping hats on in his presence.

  13. ‘The Englishman’s proverbial ‘love of lord’, his admiring interest in ‘the squire and his relations’ . . . the Englishman was, at bottom, something of a snob but very little of a courtier.’ G. M. Trevelyan, English Social History, (Pelican, 1967), p267.

  14. Ludlow, Memoirs, (Sands ed, Edinburgh, 1751) Vol 1, p251.

  15. See Wedgwood, Trial, p215, Note 70. John Aske, Cooke’s junior (i.e. assistant) counsel, was appointed to the Upper Bench on June 1st, 1649.

  16. The Weeping Onion, A Salt Tear at the Lamentable Funeral of Dr Dorislaus, 16th June, 1649.

  17. Muddiman, above note 1, p259.

  18. ‘None shall kill an enemy who yields and throws down his arms, upon pain of death’ was a rule of a) the King’s army in 1640, b) the Earl of Essex’s army in 1642 and c) the Army of the Kingdom of Scotland in 1643. See a) F. Grosse, Military Antiquities (London, 1788), p118; b) Charles M. Clode The Military Forces of the Crown (London, 1869), Vol. I, p422–5; c) Grosse (above) p136.

  19. Pauline Gregg, Freeborn John, (London, 1961), p64.

  20. Which remained difficult: three centuries later William Joyce (the pro-Nazi broadcaster ‘Lord Haw-Haw’) claimed that as an American he could not be tried for treason to the British crown: Joyce v Director of Public Prosecutions [1946] AC 347.

  21. A Compleat Collection of State Tryals, (London, 1719), p567.

  22. See the author’s judgement in Prosecutor v Kondewa, SCSL, 04–14–T-128–7363, Decision on amnesty provided by Lomé Accord. 25 May 2004.

  23. State Trials, Volume IV, p1190.

  24. See the Privy Council decision in A G of Trinidad v Phillip, [1995] 1 AC 396.

  25. Bulstrode Whitelocke, Memorials of the English Affairs, Vol 2, p548.

  26. See G. B. Nourse, Law Reform under the Commonwealth, (1959), 75LQR 512, p515. Debtors could obtain release by swearing that they did not possess more than £5.00, over and above ‘bare necessities’.

  27. John Lilburne, The Hunting of the Foxes, (21st March, 1649).

  28. The Levellers at Burford were broken and repentant
, as they watched their three convicted comrades face the firing squad (made up of men they had fought with at Preston and Naseby) without protest. They were locked in the church (‘Anthony Sedley, prisoner 1649’, can still be seen carved on the font) and later released – without charge, and without further rebellion. See Trevor Royle, Civil War (London, 2004), p513.

  29. The seriousness with which the prosecution of the Leveller leaders was mounted, may be seen from the fact that no less than 6 counsel were appointed to prosecute – two sergeants and Steel, as well as Cooke.

  30. The Trial of John Lilburne, A Complete Collection of State Tryals from the reign of Henry IV to the end of the reign of Queen Anne (London, 1719), Vol 1, p584.

  31. ibid, p593, 603.

  32. ibid, p626.

  33. Gregg, above note 19, p308.

  34. John Lisle surrendered the mastership to Cooke: Commons Journal, VI, 246 (30 June 1649).

  35. Peter Hopewell, St Cross – England’s Oldest Almshouse (Chichester, 1995). Cooke followed John Lisle (the MP for Winchester who had assisted Bradshawe at the King’s trial) but Hopewell dates this to 1657 – an error which is widely repeated, notwithstanding the record of Cooke’s appointment as Master on 30 June 1649 and his signature as Master on leases of St Cross property in September 1649 and May 1651. (Hampshire Record Office, document 111M94W/Q2/68/1 and p441–6). Cooke was succeeded by Richard Shute in 1655. Dr Lewis, who had been appointed by Charles I in 1627, was restored as Master in 1660.

  36. The Hospital of St Cross (Guide, 1993).

  37. Hopewell, above note 35, p80.

  38. The Moderate No 49, June 12–19 1649: Cooke is made a trustee under the ‘Act for the Maintenance of Preachers’.

  39. Council of State, Proceedings for May 8, 1649. CPSD 1649–50, p130.

  40. Council of State, Proceedings for May 23, 1649: Cooke’s fellow Commissioners include John Wildman, presumably the Leveller lawyer. CPSD 1649–50, 154.

  41. The Moderate Intelligencer, Jun 9–16, announces Aske’s elevation. It reports (p84–5) a dinner at Sergeant’s Inn over which St John presides and Whitelocke condescendingly tells the lawyers how helpful they have all been to the Commonwealth.

  42. Cooke, Letter to Fleetwood (August 6, 1655). Republished in MacLysaght, Irish Life in the Seventeenth Century (Cork, 1950), p444.

  Chapter 13: Impressions on White Paper

  1. Speech to General Council, 23 March, 1649, W. C. Abbott, The Writings and Speeches of Oliver Cromwell (London, 1937–47), Vol. II, p36–39.

  2. Letter from Hugh Peters, 16 August 1649, printed in the The Perfect Diurnall, 23 August 1649.

  3. Shortly before the army arrived in mid-August, Michael Jones won a significant victory over Ormonde at Rathmines and was able to welcome Cromwell to a ‘pale’ – the protestant area of influence around Dublin – which had largely recovered its proportions.

  4. The most recent treatment is by Tom Reilly, Cromwell – An Honourable Enemy (Phoenix, 1999). He argues that Drogheda was very different to the way modern Irish republican historians (and Simon Schama) have sought to portray it, as a war crime. It was a victory for English Republicans over English-led Royalists, fought according to the contemporary laws of war.

  5. Aston’s last letter to Ormond, on 10 September, was prophetically signed ‘Living I am, and dying I will end, my Lord.’ This stout royalist, who had governed Oxford for the King, obeyed Ormond’s orders against his better judgement. He died defiant, cut down by soldiers who sawed through his wooden leg which was rumoured to be packed with gold.

  6. Cromwell to William Lenthall, speaker of Parliament, 17th September, cited Reilly (above note 4), p274. Such letters were invariably published.

  7. The following account is taken from A True Relation of Mr Justice Cooke’s Passage by Sea – published in 1650 with Mrs Cooke’s Meditations.

  8. The Hector survived to sail in Blake’s republican fleet: it was sunk under Montague in 1665.

  9. Abbott, above note 1, Vol. II, p186–7.

  10. The Memoirs of Edmund Ludlow, Vol I, p246.

  11. The houses – one with a slate roof, the other straw – were in Bariston Street and St John’s Street, the former presumably occupied as his home. His farm at Kilbarry was listed in The Civil Survey A.D. 1654–6, County of Waterford Vol. VI (Robert C Simington (Gov. Pub. Office, Dublin, 1642)), p190–1. ‘There a good house, ye ruines of a castle, a garden and an orchard hereupon.’ Barnehay Castle, although ruined, features in The Castles of County Cork by James N. Healy (Cork and Dublin, 1988). These lands were settled by Act of 26 September 1653 ‘upon the said John Cooke and his heirs forever, for his good and faithful services in Ireland and in lieu of all arrears of pension due him for the same.’

  12. This is necessarily speculative, given the absence of birth and burial records, but John refers in his letter to Freelove to re-uniting in heaven with her brother, ‘dear D.’ There is a hint that Frances may have been pregnant at the time of the storm. The evidence that Freelove was Mary’s child, and a baby at the time of Cooke’s death, is by no means conclusive: his ‘letter to Freelove’ appears to be addressed to a child rather than an infant.

  13. Nicholas Canny, Making Ireland British, 1580–1650, (Oxford, 2001), p467–8. For contemporary descriptions of the atrocities, see 476–7; 484–5; 510–15; 535; 542; 546–8.

  14. Colm Toibin, ‘The Cause that called You’, New York Review of Books, 19 Dec 2002, p53.

  15. These statistics were from Mercurius Politicus No.136, Dec 30 1952 – Jan 6, 1953, reporting sittings in Kilkenny, Clonwell and Cork. Cooke was certainly a member of the bench in Kilkenny (Politicus No.125) and probably in Cork. These 3 – judge tribunals were usually chaired by the Irish-born member (Donnellan or Lowther) but in the absence of records it is impossible to assess their work. Muddiman (as ‘J.B. Williams’) makes a typical generalized attack without even noticing the acquittal rate: The Regicides in Ireland II, Irish Ecclesiastical Record (5th series) 3, 1914, p180–194. In contrast Hickson, who studied and transcribed Judge Lowther’s notes of the trials of O’Neil, Muskerry and others, salutes their fairness and mercy: M. A. Hickson, Ireland in the Seventeenth Century, (London, 1884), Vol. II, p174–7.

  16. Hickson, above, p204. Judge Lowther presided, but the court’s somewhat gratuitous reference to the Sicilian Vespers suggests that Cooke was a member. Compare King Charles: His Case in Muddiman, Trial, p234.

  17. R Dunlop, Ireland under the Commonwealth, Historical series XVII, University of Manchester, 1915, p335 (Document 369, 15 April 1653).

  18. e.g. the use of the ‘common purpose’ doctrine by the Apartheid courts in South Africa to convict the ‘Sharpeville 6’ and ‘Upington 14’ in the 1980s. See Geoffrey Robertson, The Justice Game, (London, 1998), p211.

  19. Cooke, Monarchy No Creature of God’s Making (Waterford, 1651), Preface, p28–30.

  20. See T C Barnard, Cromwellian Ireland, (Oxford, 2000). p273.

  21. Monarchy Preface, p44.

  22. Dunlop (above) Vol 1, p142, Document 149. (28 Feb; 1652). Edward Wale refused the call.

  23. Preface to Monarchy No Creature . . ., p44–6.

  24. John Percivale to Thomas Pigott (his cousin), 25 September 1652: HMC, Egmont Mss I 514.

  25. See Preface to Monarchy etc, p34.

  26. The Petition is published as the Preface to Monarchy etc, see p14. It was referred to the Committee for Irish Affairs by the Council of State on 24 December 1650: P.R.O. SP25/15 f. 44.

  27. Cooke’s resignation letter, 6 August 1655, reproduced in MacLysaght, Irish Life in the Seventeenth Century, (Cork, 1950), p422.

  28. ibid, p425.

  29. ibid, p436.

  30. ibid, p445, 435.

  31. ibid, p433.

  Chapter 14: The Protectorate

  1. See Antonia Fraser, Cromwell, Our Chief of Men, (London, 1970), p383.

  2. See Mary Cottrell, ‘Interregnum Law Reform: the Hale Commission of 1652’ (1968): 83 English Historical Review, p689. Whit
elocke received the report on behalf of Parliament and was instrumental in blocking its proposals, even for the registration of land (Cooke’s proposal for this, in the Vindication, had received wide support).

  3. S. R. Gardiner, Constitutional Documents, (Oxford, 1903, 3rd ed.), p400.

  4. ‘The Examination of the Jury that try’d John Lilburne at the sessions House, Old Bailey, 20 August 1653’: A Compleat Collection of State Tryals (London, 1719) Vol 1, p638.

  5. Gardiner, Documents (note 3 above), p405.

  6. Henry Cromwell to Thurloe, 14 November, 1655. Thurloe State Papers IV, 198

  7. MacLysaght, Ireland in the Seventeenth Century (Cork, 1950), p430.

  8. ibid, p441.

  9. ibid, p445.

  10. Parliament’s land confiscation program in Ireland had begun in 1642: almost 20% of arable land had been seized to satisfy the ‘adventurers’ who financed the army in the four provinces (Munster, Connaught, Leinster, Ulster). The Act for the Settling of Ireland provided for the forfeiture of the property of those who had fought for Ormonde (although the families might be given land of half its value) and Catholics were to be ‘transplanted’ to Connaught, where they would be granted two thirds of the value of the confiscated land. They would not suffer forfeiture at all if they had manifested ‘constant good affection’ to Parliament.

  11. See Dunlop, Vol. I above, No 791, p569.

  12. See J. P. Prendegast, The Cromwellian Settlement of Ireland, (London, 1870; 1996), p231–6. Lady Thurles was not forced to remove to Connaught, although as ‘a popish recusant and transplantable’ she lost her lands. She was still alive to welcome her son, who returned laden with power and honours at the Restoration. Prendegast, p125.

  13. Thurloe State Papers V, p353–4, 28th August 1656.

  14. And Christopher Love, tried by a third High Court of Justice in 1651. See A Complete Collection of State Tryals (London, 1719), Vol 1, p640.