The Tyrannicide Brief

by Geoffrey Robertson

  15. See Todd M Edelman, The Jews of Britain 1656–2000 (University of California Press, 2004).

  16. See Woolrych, Britain in Revolution (Oxford 2002), p647.

  17. Andrew Marvel, The First Anniversary of the Government under His Highness the Lord Protector.

  18. Monarchy – No Creature of God’s Making, p93.

  19. ibid, p99.

  20. ibid, p119.

  21. Woolrych, above note 16, p617.

  22. There is no record of Frances’ death. On the strength of some evidence of his marriage to Mary Chawner, Frances must have died from consumption at this time, shortly after John revealed this usually fatal illness to Henry Cromwell.

  23. It was soon dissolved, after a republican resurgence fanned by Arthur Haselrig, who was summoned to attend the Upper House but insisted on taking his seat in the Commons because ‘this looks like a House of Lords. I tremble to think of wardships and slavery.’ Barry Denton, Only in Heaven: The Life and Campaigns of Sir Arthur Hesilrige, 1601–1661 (Sheffield, 1997), p205.

  24. The Tryal of John Mordaunt, in A Compleat Collection (above note 14) at p813.

  25. Andrew Marvel, A Poem Upon the Death of His Late Highness the Lord Protector.

  Chapter 15: Tumbledown Dick

  1. Thurloe to Henry Cromwell, 18 January 1659. Thurloe State Papers VII, p594

  2. This is the assumption made both by T. C. Barnard, Cromwellian Ireland (Oxford, 2000), p275 – and by Prest in the Oxford Dictionary of National Biography entry for Cooke.

  3. Cooke to Henry Cromwell, 1st February 1659, Thurloe State Papers, p605.

  4. Henry (Lord Deputy) to Lord Protector (Richard), 4 January 1659. Dunlop, p979.

  5. Cooke to Henry, 8th February, 1659, Thurloe State Papers, p610.

  6. Absence of records makes it necessary to assume that Frances died in 1659 and John remarried. There is no burial record for Frances, although she is obviously very ill in early 1659 (Cooke’s letter to Henry). The remarriage to Mary Chawner is based on a statement by Nicols in Antiquities of Leicestershire Vol. IV and upon parish records that show Mary as ‘Mary Cook’ at the time of her own remarriage in 1667. There is no baptism record for Freelove, who must have been born (if Mary’s daughter) in 1660.

  7. Noble, Lives of The Regicides, Vol. II, p62-3. The report is from Whitelocke: ‘Bradshawe declared, a little before he left the world, that if the King should be tried and condemned again, he would be the first man to do it.’

  8. Austin Woolrych, England Without a King, (London, 1983), p39.

  9. Memoirs of Edmund Ludlow (1702), Vol II, p125-7.

  10. Thomason purchased his copy on 7 December 1659. Cooke may have returned to London for Bradshawe’s funeral and written it then. Proof positive of his authorship is lacking and Prest’s attribution in the Dictionary of National Biography is tentative.

  11. Aidan Clarke, Prelude to Restoration in Ireland, (Cambridge, 1999), p130. This supports the thesis that Monck and Coote were in cahoots before Monck’s march into England, the timing of which may have been triggered by the coup in Dublin.

  12. William Bray (ed.), Memoirs of John Evelyn, comprising his Diary from 1641 to 1705-6 (London, Warne & Co, 1818), p263.

  13. Samuel Pepys, Diary, ed. R. C. Latham and W. Matthews (London, 1970), p44.

  14. ‘These four lines were in almost everyone’s mouths’: Diurnal of Thomas Rugg, (ed William Sachse for Camden third series, Vol XC1, London, 1961), p30.

  15. Pepys, Diary, p21.

  16. Formed and guided by James Harrington, author of Oceana – the republican’s handbook, published in 1656.

  17. Pepys, Diary, p52.

  18. ibid, p61.

  19. So-called because the writs for the April elections were not issued in the King’s name.

  20. Pepys, Diary (note 113 above), p77 and 79.

  21. Rugg, Diurnal (note 114 above), p56-8.

  22. Pepys, Diary, p87.

  23. ibid, p87 and p125.

  24. Memoirs of Ludlow, Volume II, p251.

  25. Haselrig was to end his days in the Tower, where he died of a fever in January 1661.

  26. Edmund Ludlow, Voyce From the Watch Tower, ed A. B. Worden, Camden Fourth Series, Vol 21 (London, 1978), p126.

  27. Rugg, Diurnal, p71-2.

  28. Lambert died in 1684 on a prison island off Plymouth. Standing orders were to shoot him in cold blood if hostile troops were ever sighted. D. N. Farr, ‘Lambert, John 1619-84’ Oxford Dictionary of National Biography, 2004.

  Chapter 16: Endgame

  1. Dunlop, Vol. II, p716-7, entry 7071, 30 November 1659.

  2. A Sober Vindication of Lieutenant General Ludlow and Others (1660) p3. Aiden Clark, Prelude to Restoration in Ireland (Cambridge, 1999) cites A Sober Vindication without attributing authorship. But it is the only extant pamphlet answering Ludlow’s description of the Vindication that he says (and he should know) was written by Cooke. See Voyce, p87. It bears Cooke’s style, and was published by Giles Calvert, who had printed other Cooke pamphlets.

  3. F.J. Routledge (ed.), Calendar of the Clarendon State Papers in the Bodleian Library (Oxford, 1932) IV, p628-9; (30 March); p639 (6 April).

  4. They feared that Coote’s intention in seizing Cooke was to sacrifice him prematurely. As Ludlow put it, ‘that he (Coote) might have this lamb to offer up to the fury of his sacred majesty’, Voyce, p87.

  5. John William Willis-Bund, State Trials (Cambridge, 1879-82) Vol. II, Part I, p5.

  6. ibid, p10.

  7. Pepys, Diary, ed Latham & Matthews (London, 1970), p118.

  8. S. R. Gardiner, Constitutional Documents, p465.

  9. Pepys, Diary, p122.

  10. Ludlow, A Voyce from the Watch Tower, ed. A. B. Worden, C. F. S. 2i (London, 1978), p153.

  11. Act of Indemnity and Oblivion, Article XXXVI. As it happened, this provision was to secure their lives, but not their liberty. Most were imprisoned for life.

  12. Evelyn’s Diary, ed. Bray (London, 1818), p265.

  13. Pepys, Diary, ed Latham & Matthews (London, 1970), p159, entry for 26 May 1660.

  14. St John narrowly avoided a bill of attainder, but was excluded for life from holding public office. He published a groveling self-defence – The Case of Oliver St John Esq., concerning his actions during the late troubles – in which he distanced himself from Cromwell (his close relative) and Thurloe (who had been his personal assistant) and claimed to have heard, seen and spoken no evil throughout the ‘troubles’. Deprived of all power and in fear of reprisals, he left for European exile in 1662.

  15. Pepys, Diary, p181, entry for 22 June, 1660.

  16. Bishop Burnet’s History of His Own Time, Vol. I (Thomas Ward, 1724), p98.

  17. Ludlow, Voyce, p126.

  18. Rugg, Diurnall, p81.

  19. In September, Coote would be made Earl of Montrath and Broghill became Earl of Orrery.

  20. John Bysse had, ironically, taken many of the witness depositions for the High Courts of Justice on which Cooke served. He had been a legal assistant in the Upper Bench, but transferred his allegiance quickly enough to be appointed a judge in Ireland after the Restoration: Barnard, Cromwellian Ireland, p288.

  21. ‘An Exact and Most Impartial Accompt . . .’ No 97, p960 (entry for Wednesday 6 June 1660).

  22. Speeches and Prayers . . . (1660) p47. (‘Mr Cooke’s letter to a friend’). The sequestration order is reported in Mercurius Publicus for No 23, entry for May 24.

  23. Speeches and Prayers, ibid, p42.

  24. ibid, p25.

  25. Ludlow, Voyce, p230

  26. See Rugg, Diurnal, p104, 107.

  27. Letter, Michael Boyle to Sir John Percivale, from Cork, May 29, 1660. Dunlop Vol II, p611. Boyle had criticised Cooke for delivering judgments against the Earl’s interests.

  28. Boyle was rewarded, however, by being made a Bishop – Rugg, Diurnall, p117.

  29. ‘An Exact and Most Impartial Accompt . . .’ No 97 (Thomason, E186). Entry for Thursday 7 June. The House resolve
d that Cooke should be excepted, apparently without discussion. Its next resolution was that ‘This House does accept his Majesty’s gracious offer of pardon and indemnity to themselves and the Commons of England.’

  30. See The Parliamentary History of England from the Earliest History to the Year 1803, (London 1808), Vol. V, p76-9.

  31. Leopold von Ranke, The History of England, (London, 1860). p322-328. Sir Heneage Finch reported Clarendon as explaining that the King regarded the nation as guiltless of his father’s murder: this was the work of ‘a small band of wicked and misguided men’.

  32. Evelyn, Diary, p267.

  33. Rugg, Diurnal, p114, p126.

  34. Evelyn, Diary, p266.

  35. The gold coin was hung around the enlarged glands of the scrofulatic neck; see Benjamin Woolley, The Herbalist: Nicholas Culpepper and The Fight for Medical Freedom (London, 2004) p106-7. Culpepper in 1650 recommended pilewort to cure the King’s Evil ‘if I may lawfully call it the King’s Evil now there is no King.’ (p264).

  36. These quotations are taken from Cooke’s ‘Letter to a friend’ reproduced in Speeches and Prayers, p38-50.

  37. It was this passage that Sir Robert Hyde was to declare ‘horrid blasphemy’ when it was read out at the Old Bailey. ‘The Tryal of Thomas Brewster’ in Compleat State Trials (London, 1719), p981.

  38. Speeches and Prayers, p49.

  Chapter 17: ‘They All Seem Dismayed . . .’

  1. William Holdsworth, History of English law, Vol. 6. (2nd ed) (London Methuen, 1937), p605. Bridgeman drew the deed that led to the establishment in the Duke of Norfolk’s case of the rule against perpetuities.

  2. Edmund Ludlow, Memoirs, (Sands, Edinburgh, 1751), Vol. 2, p303.

  3. Cony’s case is discussed in State Trials, p936-8 (Administration of Justice During the Occupation of the Government). Ludlow and other barristers condemned the two counsel for ‘choosing rather to sacrifice the cause of their client, wherein that of their country was also eminently concerned, than to endure a little restraint, with the loss of their fees, for a few days.’

  4. Ludlow, Voyce, ed Worden CFS21 (London, 1978), p198. The new sheriffs, Bolton and Beak, were sworn in on October 1st.

  5. Sadakat Kadri, The Trial: A History from Socrates to O. J. Simpson (London, 2005), p91.

  6. Kelying reports that the meeting of judges and prosecutors resolved to charge ‘compassing and imagining’ because ‘then, we might lay as many overt acts as we would, to prove the compassing of his death’. Kelying’s report makes clear that the judges were determined to frame a charge upon which the ‘traitors’ could most easily be convicted Kelyng 7, 8; 84 English Reports 1056, 1057.

  7. Statute 7 William III.

  8. They even directed that the three prosecution lawyers should meet members of the grand jury in a private session in order to ‘manage the evidence for finding the bill’ – another unfair departure from custom, which was for a judge rather than a prosecutor to preside over the grand jury deliberations, to ensure some impartiality in its decisions to send defendants for trial.

  9. The judges agreed, with some irritation, that until the law was changed the writs to the Lieutenant of the Tower, directing him to deliver the prisoners, would have to be in English, not Latin.

  10. Speeches and Prayers, p50-56 (‘A Letter written by Justice Cooke to his wife’).

  11. Voyce, p179.

  12. Geoffrey Robertson, Obscenity, (London, Wiedenfeld, 1979), p21.

  13. The grand jury and trial transcripts of proceedings against the Regicides were published by the Government at the end of October 1660, as An Exact and Most Impartial Accompt of the Indictment Arraignment, Trial and Judgement (according to law) of nine and twenty Regicides, the murtherers of His late sacred Majesty (etc). The grand jury proceeding, with Bridgeman’s speech, is at p7-16.

  14. Bridgeman misunderstands Coke and willfully distorts the common law theory that the King has ‘two bodies’ – a political body that could never do wrong other than through ministers (who alone could be prosecuted) and a natural body capable of committing crime – although it was debatable whether a common law court had jurisdiction to try him. Bridgeman conflates these two separate concepts to produce a doctrine of absolute royal impunity.

  15. See Coke, 3rd Institute (1648) (ed.) para 14.

  16. Pepys, Diary, ed Latham & Matthews (London, 1970), p263.

  17. On all but Hulet, a soldier rumoured to be the masked executioner. The prosecutors were unsure of his guilt, and the jury deliberated for two further days before indicting him.

  18. Cooke was prisoner number 25. See Mercurius Politicus for that week.

  19. Opening day of Regicide trial at Old Bailey: see ‘An Exact and Most Impartial Accompt . . .’, p17-32 (10 October 1660).

  20. Pepys, Diary, entry for 10 October (p263).

  21. R v Thomas Harrison: ‘An Exact and Most Impartial Accompt . . .’, p32-56.

  22. ‘An Exact and Most Impartial Accompt . . .’, Scroop’s trial is at p57-72; Carew’s trial p72-83; Scot p82-95; Jones p96-102. Gregory Clement pleaded guilty: p95-6.

  23. Scot’s speech in the commons was, in context, precisely the kind of occasion for which Parliamentary privilege can be justified. He was talking out a motion that aimed to encourage the lynching of Republicans by declaring the execution of Charles I ‘horrid murder’.

  Chapter 18: The Trial of John Cooke

  1. The extracts are taken from ‘An Exact and Most Impartial Accompt . . .’ The official transcript of the Regicide Trial, as edited by Bridgeman. The case of R v Cooke is at p102-152, and it reproduced in Vol IV of The State Trials. ‘An Exact and Most Impartial Accompt . . .’ is not an exact account, as is proved by the omission of Cooke’s opening remark that was reported in all the newsbook reports the next day: see Parliamentary Intelligencer No 14, p666, entry for October 13, and Mercurius Politicus for the same date.

  2. This witness was probably George Starkey, of New Windsor, Berkshire, who had been admitted to Grays Inn in 1633 and called to the bar in 1641. He testified against Peters later in the day. There was another Starkey – Ralph (admitted 1632, called 1640) at Grays Inn. The list of prosecution witnesses, as presented to the Grand Jury, is at p16 of ‘An Exact and Most Impartial Accompt . . .’

  3. A reconstruction of scenes from the regicides’ trial, shown on Channel 4 Television in February 2005, wrenched these words out of their context to give the false impression that Cooke had spoken them at the end of his trial, as a tribute to its fairness! In fact, at the end of his trial, after Bridgeman’s summing up to the jury, Cooke said the very opposite: ‘I confess I humbly make bold to say, I have not received satisfaction in my judgement’ – see ‘An Exact and Most Impartial Accompt . . .’, p150.

  4. Parliamentary Intelligencer No 14, for October 13, 1660, p667.

  5. R v Thomas Paine, 22 State Trials, p357 (1792).

  6. Brougham would, in company, mock his client. ‘The Queen is pure in-no-sense.’ See Flora Fraser, The Unruly Queen, (London, MacMillan, 1996).

  7. John Lord Campbell, Lives of the Lord Chancellors, 4th ed 1857, Vol. IV, (London, John Murray), p75-6.

  8. James Fitzjames Stephen, an ultra-monarchist judge and supporter of extensive treason and sedition laws, castigates Cooke for running this ‘ignominious’ and ‘mean’ defence, although he misdescribes it and mistakenly thinks it was Cooke’s main defence. Stephen, A History of the Criminal Law of England, Vol. I, p371 (London, 1833). It was an arguable construction of the Act, but it did not reflect the intention of the majority of MPs in the Convention Parliament, which was to have Cooke condemned for his ‘instrumental’ part as trial prosecutor.

  9. Mercurius Politicus, for 13 October, p667. Cooke had cited a biblical precedent – that of the lawyer Tertullus, whom St Paul forgave for pleading against the truth, because this was his calling.

  10. ‘An Exact and Most Impartial Accompt . . .’, p120.

  11. ibid, p118.

  12. ibid, p147.
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  13. ibid, p150.

  14. This was a formula in regular use by judges at the Old Bailey until 1979. At the much publicised trial in that year of ‘Inside Linda Lovelace’ the elderly judge directed ‘If this is not obscene, members of the jury, I don’t know what is’. But the jury acquitted and the DPP announced that there would be no further prosecutions in Britain of the written word. See Robertson and Nicol, Media Law, (Harmondsworth, 2002), p155.

  15. Whitchcott was admitted to the Inner Temple in 1638 and called in 1645.

  16. R v Peters, see ‘An Exact and Most Impartial Accompt . . .’, p153 onwards.

  Chapter 19: A Trembling Walk with God

  1. R. C. Latham and W Matthews (eds.), The Diary of Samuel Pepys (London, 1970), p265.

  2. Respectively, Dr Dolben and Dr John Barwick, whose encounter with Cooke in Newgate is reported by a relative of the latter. See ‘Hugh Peters’, Notes and Queries, Feb 15, 1913, p123.

  3. The Speeches and Prayers of Major General Harrison, Mr John Carew, Mr Justice Cooke . . . (1660), p28-9. Statements attributed to Regicides in prison have a martyrological flavour but represent the kind of conversation with which they would have bouyed their spirits. The authenticity of this underground publication is discussed later in the text and in the Notes on Sources.

  4. Robert Phayre, named with Hunkes on the execution warrant, had been brought from Ireland with Cooke, but was a last-minute omission from the regicide defendants, because of his marriage to the daughter of Sir Thomas Herbert, final companion of Charles I. Herbert was useful to the new regime as witness to the King’s saintliness, and was rewarded by a baronetcy and by the pardoning of his son-in-law.

  5. The witness Simpson admitted he did not know whether it was Lady Fairfax other than by rumour (p187); the gallery owner, Griffith Bordaroe, who would have sold the seat, does not identify her (p192-3) while Axtell, who would have recognised his General’s wife and had no motive to lie on this point said ‘who she was, I know no more than the least child here.’ (p206). Sir Purbeck Temple, a royalist spy given to wild imagining (he compared the King’s sufferings to those of Christ and claimed that he had seen the King’s severed head smile at him) said that his sister, a Mrs Nelson, had accompanied Lady Fairfax and both were masked: he did not identify which of them had shouted. (p189-90) The prosecution went no further than to allege that the interjection ‘Nol Cromwell is a traitor!’ was from a ‘noble person’. The identification of Lady Fairfax by Clarendon and Rushworth, in accounts written many years later, has been too readily accepted.