This meant more work for the Solicitor-General, whom the Commons appointed on the same day to serve (with Oliver Cromwell) on a committee to revise the laws of the realm to conform with the exigencies of republican government.8 But by this time, Cromwell had no shortage of expert lawyers: the grandees were back to claim power in the new commonwealth. That Tweedle Dum and Tweedle Dee of Cromwellian legal office, Thomas Widdrington and Bulstrode Whitelocke, became respectively Sergeant of the Commonwealth and Keeper of the Great Seal, from which positions they could head off most of the reforms of the legal profession which had been urged by John Cooke. They did not trust Cooke: he was a radical and an upstart, but he had done the state more recent and more dangerous service than they, so they bided their time.
The return of these conservative lawyers was paralleled by the return to the Commons of Independents like young Sir Henry Vane, who had supported a republic but objected to achieving it by executing the King, and over seventy ‘secluded’ MPs, mainly Presbyterians who were allowed back on condition that they disavowed their vote on 5 December to continue negotiations with the King. Their presence, with those who came back on the same condition later, made the ‘Rump’ of the Commons very much less of a rump – more a head and torso – of those MPs who had been elected to the Long Parliament. It also made the Commons a much more cautious and reactionary body than it had been in the weeks after Pride’s Purge, when its hard core of Independent MPs oversaw the King’s trial and execution. For the present, however, it served to provide reasonably broad support for the legislation advised by the Solicitor-General which turned the country into a republic.
The first task was to establish some form of executive government to replace the King and his Privy Council of ministers. The successor body was called a Council of State; a majority of members were MPs, but it also had five peers and three judges, including the chief justice, Oliver St John. John Bradshawe was appointed as its president – an indication of just how satisfactory his trial performance was regarded. The republican loyalty of its members was secured by an oath to ‘adhere to this present Parliament . . . and to the maintenance and defence of its resolutions concerning the settling of the government of this nation for the future in way of a republic, without King or House of Lords’.9
It took another month before the republic was legislatively accomplished. On 17 March 1649, the Act abolishing the office of king was passed. Charles and his ‘issue and posterity’ and anyone else pretending to the title were declared incapable of accessing it and all the people of England and Ireland (but not Scotland) were ‘discharged of all fealty, homage and allegiance’ to the Stuarts, then or for ever. In language so reminiscent of King Charles: His Case that John Cooke must have had a hand in its drafting, the Act justified the extirpation of monarchy by reference to the English experience of it:
It is and has been found by experience, that the office of a king in this nation and Ireland, and to have the power thereof in any single person, is unnecessary, burdensome, and dangerous to the liberty, safety, and public interest of the people, and that for the most part use has been made of the legal power and prerogative to oppress and impoverish and enslave the subject; and that usually and naturally any one person in such power makes it his interest to encroach upon the just freedom and liberty of the people, and to promote the setting up of their own will and power above the laws, so that they might enslave these Kingdoms to their own lust; be it therefore an Act ordained by the present parliament, that the office of a king in this nation shall not henceforth reside in or be exercised by any one single person . . .10
The republic was declared in England without public opposition or significant support for any alternative form of government. But these were still dangerous days. The Scottish Parliament had already proclaimed Charles II as ‘King of Great Britain’ and Montrose – a more formidable fighter than Hamilton – was in arms in the new King’s cause, whilst his navy, under Prince Rupert’s command, was stooging around supportive Irish ports. The Rump promised to dissolve itself ‘as soon as may possibly stand with the safety of the people’ and to provide for regular elections on a wider franchise, but the people’s safety (and the self-importance of the Rumpers) was to postpone them indefinitely. The House of Lords was abolished on 19 March: it was ‘useless and dangerous’ to continue a body which had so notably taken fright at the prospect of putting the King on trial. ‘Where are my lords?’ was the one question Bradshawe and Cooke could not answer: henceforth, it could not be asked – the only nobles who would play a part in government would be those elected to the Commons, and the Act expressly permitted them to stand. The Act declaring England to be a commonwealth made the House of Commons ‘the supreme authority of this nation, the representatives of the people in Parliament’.
The King’s trial had paved the way not only for a republic – inconceivable just a few months before – but for a meritocratic republic without political power diluted by an hereditary and unelected upper house. The extent of the franchise was still unclear, although there was significant support in the army for it to extend to all men who owned homes, paid poor relief and were not servants or employed workers – a democracy, in other words, of independent adult males, extending well beyond the narrow property franchise upon which previous Houses of Commons had been elected.
Laws were easy to alter, like the inscription on the great seal and coinage and the description of the high court – the Kings Bench quickly became the Upper Bench. More difficult was to replace the pro-monarchy prejudices in the hearts of the people – a change of loyalty which could only be accomplished by governing in a manner discernibly better and more endearing than the Stuarts. The commonwealth would need to achieve the reforms in law and worship that had been central to the Independent and army agenda. And it would need to entrench itself in public sentiment by making its own legends – about the guilt of Charles I, for a start, and the rightness of the proceedings that had brought him to justice.
So John Cooke was given every encouragement when he took the extraordinary step of publishing the speech he had intended to deliver to satisfy the court of the King’s guilt. King Charles: His Case – i.e. the case against King Charles – was somewhat defensively subtitled ‘An appeal to all rational men that love their God, justice and country more than honour, pleasure and money, concerning his trial at the High Court of Justice’. It was, as we have seen, for the most part a rational argument that the monarch not only bore command responsibility for the mass-murder of his own people but had behaved like a tyrant from the beginning of his rule, bending judges to his will and wasting public champions like John Eliot in his determination to destroy Parliament. It was a hastily drawn but powerful indictment that was to reassure many Puritans in England and the American colonies of the rightness of the conviction. Its weakness was that its author, to justify the execution as well, interpolated some inflammatory material which had been excluded from the actual charge, such as the allegations about the King’s responsibility for the loss of Protestant La Rochelle and his complicity in Buckingham’s alleged poisoning of James I. He added a short introduction, magnifying the King’s ‘Machiavellian’ crimes, and a postscript which addressed the objections to the court made by London’s Presbyterian ministers. Courts are as courts do, Cooke argued: they are to be judged by the quality of the justice they dispense. The High Court acted like the highest court and conducted itself more fairly than the law required – for example, by examining witnesses for several days to satisfy the judges’ conscience, although the prisoner had already convicted himself in law by refusing to plead. The Presbyterians who had objected to the trial were like ‘foolish passengers that having been long at sea in dangerous storms, as they are entering into the quiet haven, to be mad with the pilot because he will not return into angry seas’.
It was to answer these ‘dancing divines’ and their MPs – the ‘apostate scarecrows’ like Prynne and Holles – that John Milton also took up his pen to publish
, in the same week, The Tenure of Kings and Magistrates – a more coruscating polemic against ‘the spleen of a frustrated faction’ which had tried for years to kill Charles on the battlefield (‘Directing their artillery without blame or prohibition to the very place where they saw him stand’) yet now objected to his execution.11 They had dared not judge him whilst they were converting his revenue and taking from it ‘the warm experience of large gifts’ but now that the power they played for had to be shared with others, they sought to save the very King they had so often attempted to kill – a tyrant who, heedless of the law or common good, had sought to reign for the benefit only of himself and his courtiers.
The commonwealth of England, argued into existence in the first weeks of February 1649 by Cooke’s rhetoric and Milton’s more elegant sarcasm, was a construct of justice and right reason, supported by the biblical view that kings were graven images – rivals rather than anointees of God. These arguments were calculated to appeal to rational minds, and although they conveniently persuaded men to serve under the new dispensation, they never lodged in their hearts or tugged at their emotions. Puritans felt gratitude that their congregations were no longer menaced by bishops or by the imposition of Kirk worship, but this was counter-balanced by an exasperation with some of the sects which crawled from underneath ‘a world turned upside down’. Winstanley’s ‘Diggers’ were a handful of communards, at first tolerated and then easily dispersed. The fabled sexual promiscuity of the ‘Ranters’ inspired a moral panic in Parliament and the newsbooks, but their followers were very few – unlike the Quakers, whose guidance from ‘the light within’ led them to defy authority and etiquette in a manner that spread genuine alarm later in the 1650s. The most influential sectarians were the ‘Fifth monarchists’ because their belief (based on the prophecies in the Book of Revelation) was that the second coming of Christ would be presaged by a thousand-year rule of the saints (the wisest and most godly men, who would reign supreme in church, Parliament and courts of law).
However, for the Presbyterians and many Protestants who still craved the Anglo-Catholic traditions of the Church of England, there was no cause for rejoicing. The republic brought no benefit, in worship or in power or in pocket, although under Cromwell at least there was peace at home and there would soon be triumphs over enemies abroad. Instead of reading Cooke and Milton, they consumed an underground best-seller, Eikon Basilike – a book about the devotions and sufferings of the holy martyr Charles I, in his final year of constant prayer for the souls of his people. It purported to be written by Charles, although it was in fact penned by John Gauden, another of Cooke’s Wadham contemporaries. The contents of ‘the King’s Book’ (as everyone called it) had been discussed with Charles during his relative freedom at Newport, but Gauden had updated it with premonitions of the fate that had already overtaken him by the time of its publication.
The King’s Book first appeared on the same day as King Charles: His Case and comprehensively outsold it, commencing that strain of iconography which identified the sufferings of Charles with the sufferings of Christ, their executions taking place after a trial which lacked legal authority, attended by soldiers and officials who insulted and reviled the holy figure.12 The long-term impact of the Eikon was to sentimentalise the Stuarts as divinely appointed upholders of the Anglican faith: it worked the same spell as had Foxe’s Book of Martyrs on a previous generation. Milton (with Eikonaklasties) and Cooke (with Monarchy No Creature of God’s Making) would later return to the intellectual fray, but nothing they could write would extract the splinter of sentiment for a Christian king that Eikon Basilike lodged in so many ordinary English hearts. Call it superstition and servitude (as Milton did) and denounce it as incompatible both with reason and the word of God (as Cooke argued), the idea of the monarch promoted after the execution, as patron saint of a hierarchical system based on hereditary and breeding, played to one element of the English character – snobbery – that the commonwealth could never eradicate.13
Indeed, the most striking feature of royalist propaganda was the obsessive reference to the lowly birth or ‘mechanical’ trades of those who served the republic. It was enough for readers of their clandestine news-sheets to learn that a public officer or army colonel had been a draper or brewer or craftsman or – horribile dictu – a servant, to recognise that he was unfit for any office. In this milieu where ‘democratic’ was always a pejorative adjective, the potential strength of the new government – its broader base – was identified as its weakness. Status continued to govern character: persons of low breeding were necessarily persons of low worth. The royalist writers and printers, dodging the licensors with little difficulty and obvious relish, had no scruple in publishing venomous libels on these ‘men of the middling classes’, the plebeians of the republic.
Cooke could not hope to escape slander and it came quickly after the King’s trial – in Mercurius Elencticus for the week ending 13 February. There, Cooke was denounced for his low birth and lack of money. His bar practice was said to be that of ‘a matchmaker, or a helper to wives’ – in effect, he was a marriage broker, who had wormed his way into the esteem of Strafford. He was falsely accused of decamping from Ireland with the money the earl had paid him to update the Irish statutes, and after conversion by the Jesuits in Rome had stayed in Europe, in fear of Strafford, until after his execution when he thought it safe to return to London. This ‘mercury’ was a malicious messenger: its author, George Wharton, was a royalist astrologer and libeller who vowed in the same edition that ‘I should esteem it the best act that ever I did, if to quit the Kingdom of so damnable a traitor, I could but (by any means imaginable) let the blood out of that body which harbours so hellish a soul’. He was urging the assassination of Bradshawe. But Cooke would make an equally acceptable target.
It was not long before Wharton’s ilk struck at the King’s prosecutors. Dr Dorislaus had been appointed to Parliament’s most important diplomatic post, that of ambassador to the United Dutch Dominion. In May, on the very night of his arrival at The Hague, a royalist death squad led by the son of a Welsh bishop broke into his apartment and stabbed him to death while he was taking supper. Although the Dutch, as fellow Protestants, were nominally friendly to the commonwealth, their government shared the general European horror (the Swiss excepted) at the King’s execution and notably failed to arrest the assassins. Edmund Ludlow complained that ‘Though this action was so infamous and contrary to the right of nations, yet the Dutch were not very forward to find out the criminals, in order to bring them to justice’14 and Parliament sent an official complaint to the States-General. Clearly, Cooke’s days of continental travel were over. There could be no place of safety for the man who had led the prosecution of the King, and the danger was emphasised the following year when the English ambassador to Spain, Anthony Ascham, was killed in a similar fashion, probably because he was confused with John Aske, the junior barrister who had assisted Cooke and Dorislaus and was soon elevated to the rank of sargeant and appointed to the High Court.15 Dorislaus’s corpse was brought back to England and given a state funeral, which became the butt of royalist venom and threats of further assassinations: The Weeping Onion, a doggerel sold on the streets, decried the pomp and public funds (£250) lavished on this ‘alien reprobate’ and imputed nerves to other targets:
O for a messenger the House to tell
And all the merry commoners of hell
How Lenthall looks! How Whitelocke pales his face
Who caught one seal, and lost that seal of grace!
O how damned Bradshawe quivers as he comes
And Fairfax groans. And Cromwell bites his thumbs.16
Cooke publicly defied his would-be murderers: ‘It is for a Cain to be afraid that every man that meets him will slay him.’17 He did not care whether he was killed by cavaliers or by consumption. ‘I leave that to my heavenly father. If it be his will that I shall fall by the hand of violence, let him do what he pleases.’ This was not empty defiance:
Cooke was (and remained) utterly trusting to providence in respect of his own safety. But by now there were others to consider: not only Isaac his aged father, but his wife – Frances – whom he had married in 1646 once his practice had begun to flourish. The one place where they would be safe would be in the bosom of Cromwell’s army, which was preparing to sail forth to subdue the unruly Irish. Soon, Cromwell would make him an offer.
For the present, in the hectic months after the execution, the Solicitor-General was immersed in trial work. Cooke was not a tub-thumping orator: his talent lay in creative application of the common law, and the trials of the courtiers gave this talent full rein in front of Lord President Bradshawe and the familiar faces (although not so many) of the commissioners who judged the King. He had four mighty lords to dispatch, all of whom can now be observed (unlike Cooke) gazing down upon visitors to the National Portrait Gallery. They ranged from Lord Goring, the most cruel and lawless of the royalist commanders, to the Earl of Holland, whose oscillation between the King and the Parliament was, he admitted frankly, contingent upon which side would give him the most money, because he believed poverty to be the greatest sin. The Duke of Hamilton, leader of the Scots invasion, was the main defendant, and then came Lord Capel, who like Holland and a fifth courtier, Sir John Owen, had reneged on earlier promises made to gain pardons and had led the royalists into the second civil war. Steele, the Attorney-General who had by now made a complete recovery, asked Cooke to take the lead in prosecuting Goring, Holland and Capel, and to assist him in the more difficult case of the Duke of Hamilton.
Cooke made short but interesting work of Goring, charging him in effect as a war criminal. Goring pleaded ‘not guilty’, so Cooke produced witnesses to testify that the defendant had ordered the torture of prisoners at Colchester, had burnt down hundreds of civilian homes and authorised the use of bullets boiled in poison. Goring admitted giving some of these orders, but he denied treason: he fought, he said, for peace – Cooke pointed out that his actions spoke louder than his words, and his actions infringed the laws of war accepted by both sides. Goring and the other peers tried to argue that their status carried various immunities from prosecution and that Magna Carta meant they could only be tried, quite literally, by ‘peers’. Cooke, who was dogged by the tag ‘plebeian’ all his life, swept away these objections: the Act by which the court was established contained no exemption from its jurisdiction for those of high birth. In this he foreshadowed the approach of modern war crimes courts, which have declined to acknowledge immunities based on status or position, whether as head of state or minister of government. In one respect, however, Cooke’s egalitarian logic went too far: he urged that in this republican age, noble defendants should now suffer the fate of common traitors and be hanged, drawn and quartered. At this, Capel blanched and almost fainted from shock. The court, however, drew the line at inflicting a commoner’s death on noble lords: it decided they should die by the clean stroke of the bright axe. A gesture was made towards equality by vouchsafing this same aristocractic exit to Sir John Owen, the stout but common Welshman. Capel became celebrated for the excellence of the execution both of his portraiture (by Cornelius Johnson) and of his sentence: he disdained the comfort of a priest and declared loudly on the scaffold that Charles II was his King.
The Tyrannicide Brief Page 27
