Where the prisoners taken at Colchester did have an arguable defence was that they had surrendered upon articles agreed with Fairfax which promised them ‘quarter’ for their life. The offer and grant of ‘quarter’ was a basic feature of the law of seventeenth-century warfare, accepted by all sides in the English civil wars.18 A soldier who yielded and threw down his arms could not be slain, and had thereafter to be treated humanely as a prisoner of war. But did it operate as a full-blown pardon for all crimes of war he might previously have committed, or was it a temporary expedient that saved him from being killed either on the spot or after an army court-martial but did not prevent his subsequent prosecution for treason? This argument, too, is reflected in current debates over whether amnesties granted in peace settlements prevent prosecution for crimes against humanity. Cooke’s answer was that military law operated in a different dimension to criminal law: the grant of ‘quarter’ was a right that operated only in the former context, where it protected the beneficiary from further attack and any court-martial. It did not prevent his subsequent prosecution for serious crime. The court accepted Cooke’s submission: ‘quarter’ meant freedom from execution in or after the heat of battle, but not freedom from justice.
Capel fell back on the claim that he could not be tried for a capital offence other than by a jury. There was some historical force in this point – the old prerogative courts, such as the Star Chamber, could order defendants to be mutilated but not executed, and Capel’s plea undoubtedly touched a nerve. It had been made on the advice of a most unlikely ally – John Lilburne no less, who had returned to London.19 ‘Where’s my jury?’ Capel expostulated, prompted by Freeborn John. ‘I demand the sight of my jury, legally empanelled, as my right by law, without the verdict of whom I cannot in law be condemned . . . I hope you will not deny me the benefit of the law, which you pretend you have fought this seven years to maintain.’ It was an unexpected volte-face: before Lilburne turned up to help him, Capel had been insisting that he could only be tried by fellow lords i.e. his ‘peers’. For all the conventional legal talent available, it was the street radical, Cooke’s old client, who gave the most cagey advice. The authorities noted the force of his argument for Capel, and when the army moved against Lilburne, a few months later, it allowed him, as a commoner, trial by jury – a decision Cromwell was to regret.
Cooke’s insistence in these follow-up trials that military jurisdiction in the course of a war must not be allowed to subvert the jurisdiction of the common law remains of importance. Military and police authorities may offer expedient or unwise deals to prisoners guilty (it may subsequently turn out) of terrible offences, and Cooke’s position, now accepted by international criminal law, was that such deals cannot prevent prosecution for certain heinous crimes that it is beyond the power of the military to overlook or forgive. In the event, however, the royalist commanders could not establish that their surrender at Colchester was induced by any promise of pardon. They had refused to capitulate at the beginning of the siege, when Fairfax offered them in return a safe passage out of the country, but had continued fighting until their men refused to fight any longer. Fairfax attended the trial in person to testify for the prosecution: he had been incensed at the arrogance of the defendants in wasting the lives of famished soldiers and townspeople, and had only accepted their belated surrender on terms that their men would be pardoned but they would be ‘rendered to mercy’. When the officers had enquired what this might mean, they were told – in writing that Fairfax exhibited in court – that it meant he would be entitled to put them immediately to the sword, although he proposed to leave their fate in the hands of Parliament. Fairfax’s attendance at court on 13 February, a fortnight after the King’s execution, put paid to their defence, and incidentally signalled the general’s support for the High Court of Justice.
The Duke of Hamilton had commanded the Scottish forces that invaded England: after defeat by Cromwell at Preston he had surrendered upon terms which he claimed precluded any subsequent trial or punishment. He also claimed that as a Scot born and bred he was an alien, owing no allegiance to the English nation or its Parliament, and hence could not be prosecuted for treason. This raised a difficult point of law.20 Although prisoners were not allowed counsel to contest the facts of a treason charge, they were entitled to instruct barristers to raise any genuine point of law once the facts had been established. So the court granted the duke’s request for counsel, as it would have done had Charles requested a lawyer, but none at first was prepared to accept the brief. Four senior barristers all found reason to decline, nervous that appearing for a traitor might bring reprisals, especially since they could only interview their client in the presence and hearing of his guards. This condition was lifted at the court’s insistence, and the duke was then represented by a team led by Matthew Hale, who took the point that treason necessarily involved a breach of allegiance to a kingdom and since ‘no man can be subject to two kingdoms’, Hamilton’s birth and title in Scotland prevented his owing allegiance to the kingdom of England. Steele and Cooke successfully replied that the duke had been made an English peer (the Earl of Cambridge) by Charles and had sat under that title in the House of Lords. Besides which, double allegiance was possible in the case of England and Scotland, given historical evidence that both nations were originally one, the treaties of friendship between them and the fact that under the Stuarts they had been ruled by the same person.
Hamilton’s further argument, that he had surrendered on a promise of immunity, was supported by none other than Hugh Peters, who had been the intermediary. His understanding of the surrender treaty was that the duke would be safe not only from the soldiers but from any proceeding instituted by Parliament. Colonel Richard Lilburne, who had signed the treaty, said that he intended only to protect the duke from military justice and not from the justice of Parliament. Peters protested ‘that much tenderness was to be used when the life of so eminent a person was concerned’21 and that if the treaty had been intended to bear Colonel Lilburne’s meaning, it should have been clearly expressed – to which Bradshawe responded dryly that ‘you say well for the future, but it is now too late’. None the less, the duke forcibly urged his immunity, on the policy ground that if the surrender treaty were violated in his case then all wars would be ‘downright butchery’, because no soldier would trust a surrender settlement. This argument still resounds in criminal courts invited to override pardons that are given in order to free hostages or end civil wars: if these are worthless to terrorists and insurgents, will there be any incentive for them to stop the killing?22 Steele and Cooke argued that the words of the surrender document were plain and in any event the army had no power to absolve prisoners from prosecution by the civil power, because the rule of law requires that serious criminal laws should not be dispensed with, certainly not by an army officer or even by a minister of state.
Cooke was not certain that the prosecution would prevail – if the surrender treaty really was ambiguous then the prisoner should have the benefit of it. So he came up with a further argument: Hamilton’s escape from lawful custody had the effect of forfeiting the benefit of the pardon, because it was an implied condition of all pardons that they must be performed to the letter by their beneficiary, and the duke’s unlawful escape extinguished the obligation of the state to keep its side of the bargain. Cooke’s argument was greeted with great indignation by the duke and his party: they regarded it as a last-ditch attempt to shore up a weak prosecution case. Bradshawe, however, had no difficulty in finding Hamilton guilty: he was a rebel leader, who might have surrendered to the army on the promise that it would not shoot him, but that could not absolve him from treason. To the argument that no one would surrender on such a dubious promise, Cooke replied that it is generally better to live another day, or at least to die another way: in return for the sparing of his life the previous August, Hamilton’s surrender had earned him nine months at Windsor, a fair trial, and the possibility of saving his life even
after Bradshawe’s sentence; the court postponed all the executions until Parliament could debate whether to have them carried out.
The trial of the King’s courtiers had lasted, in fits and starts, for a month. Cooke performed more effectively than in the King’s trial because the defendants raised real issues of law and fact which had been the subject of evidence and argument. The appearance of counsel – the renowned Matthew Hale – gave the proceedings a genuine adversary flavour and put Cooke and Steele on their mettle. The court strove to be fair and granted unheard-of indulgences to the prisoners. The Duke of Hamilton was permitted adjournments to gather evidence; he was allowed to instruct Hale in private; the Earl of Holland’s illness was accepted as a reason why he should not stand trial until his doctors certified that he was well enough to cope. These novel civilities may have reflected a lingering respect for high-born defendants, but they set standards which could not easily be ignored by the ordinary criminal courts in this new republican era. Within the constraints of the current rules of evidence, which denied defendants the right to testify on oath or cross-examine, the High Court’s proceedings were remarkably fair: no attempt was made to cover up the angry differences between Peters and Colonel Lilburne over the circumstances of the duke’s surrender and the court’s order that General Fairfax himself should attend was a sign of independence from the army. Its indulgence was not, of course, appreciated: Hamilton on the scaffold sneered at the low births of the commissioners and regretted being judged by a court ‘a great part composed of men mechanic and unfit to be judges’.23 It was typical for royalists to deride the tradesmen and plebeians of the New Model officer corps, but at Colchester these noble lords had preferred their own soldiers to starve to death rather than surrender. When they had to negotiate terms, the main point upon which they insisted was that they should be permitted to ride out in style on horses that should have been fed to their emaciated troops a week before.
Cooke, plebeian though he was, had proved his legal worth against Matthew Hale, the best legal mind of the time. His arguments have a contemporary resonance, in so far as the validity of pardons granted under pressure can no longer be allowed to bestow impunity for crimes against humanity. Cooke’s point about the need to imply conditions into pardons is now accepted.24 The proceedings had a less than satisfactory end, however, because there was no appeal in criminal cases other than to Parliament – and politicians cannot be trusted to deliver justice. Lord Goring, the most vicious of the defendants, was reprieved by the casting vote of the Speaker of the House – for no better reason, William Lenthall explained, than that he had once received favours from Goring and would now repay them by saving his life. When the House was similarly deadlocked over the fate of the Earl of Holland, on the other hand, the Speaker gave a casting vote against him – presumably having received no favours at his hands. But Holland, although a mercenary turncoat, had been of vital assistance at the outbreak of the civil war: in his unique position as ‘groom of the stool’ (assisting the King’s defecations) he had organised defections to the parliamentary cause. For Bulstrode Whitelocke, the Speaker’s behaviour was a salutary lesson in the need to keep politicians out of the business of justice:
This may be a caution to us against the affectation of popularity, when you see the issue of it in this noble gentleman [Holland] who was as full of generosity and courtship to all sorts of persons, and readiness to help the oppressed, and to stand for the rights of the people, as any person of his quality in this nation. Yet this person was by representatives of the people given up to execution for treason: and another lord [Goring], who never made profession of being a friend to liberty, either civil or spiritual, and exceeded the Earl as much in his crimes as he came short of him in his popularity, the life of this lord was spared.25
There were more political decisions. Sir John Owen was reprieved at Ireton’s suggestion, because he was a commoner and a grant of mercy to him would emphasise that the aristocracy would find that high birth brought no favours in the courts of the commonwealth. Lord Capel was sent for execution on Cromwell’s recommendation, not because he was a bad man but because he was feared as an exceedingly good one, whose conscience and sense of duty to the King would make him an implacable enemy of the republic.
What Cooke thought of these unprincipled decisions is not recorded: he probably shared Whitelocke’s concern about ‘the affectation of popularity’ and the unfitness of both the people and their representatives for making sentencing decisions. Both lawyers wanted a justice system independent of government although Whitelocke, the son of an influential judge, desired the perpetuation of the system he knew and loved and had benefited from, whilst Cooke the poor husbandman’s son understood the need for wide-ranging reforms. In the first year of the commonwealth, the Rump did effect two important reforms close to Cooke’s heart; his hand may be detected in the statute which permitted imprisoned debtors to obtain release on habeas corpus unless the accusing creditors could produce some evidence of the debt, or if they could show that they were genuinely impoverished, and not deliberately withholding payment.26 This legislation, passed in September 1649, did much to mitigate the worst injustice of the age – imprisonment on accusation of debt, from which Cooke’s brother and brother-in-law had suffered. Another reform that had been passionately urged in the Vindication was accomplished the following year, by an Act requiring all court proceedings and judgments to be expressed in English and no longer in Norman French or Latin.
Law reform was not a priority in the early months of the republic: royalist opposition in England had been effectively suppressed but it was dangerously rampant in Ireland, where the Catholic and Protestant factions had actually joined together in a confederacy which was outnumbering and outmanoeuvring the small parliamentary army. Substantial reinforcements were required, then as ever an unpleasant prospect for English troops, who were now subjected to a fresh round of Leveller agitation. Lilburne wanted elections immediately; his pamphlets talked of dictatorship and asked the provocative question, ‘We were before ruled by Kings, Lords and Commons; now by a General, Court Martial and a House of Commons: and we pray you, what is the difference?’27 In April and May there were mutinous outbreaks which Fairfax, fully in command, put down forcefully. He had three Leveller leaders amongst the soldiers court-martialled and shot at dawn whilst their followers looked on, from the roof of Burford Church where they had been corralled. The general was an unyielding disciplinarian, crushing the mutineers (against Cromwell’s preference for mercy) as firmly as he had dealt with the malignants at Colchester. It was his harshness – with soldiers who adored him – that overcame the Levellers, the ‘enemy within’. Lilburne and other pamphleteers had been rounded up and sent to the Tower of London, and most of their followers expressed penitence after a lecture from Cromwell on godly behaviour.28 Thereafter, the Levellers were spent as a political force. Lilburne himself had historic contributions yet to make, to criminal law but not to politics.
This man, whose exhortations had done so much to bring the King to trial, now found himself charged with treason – for stirring soldiers to mutiny against a Parliament that refused to dissolve. Although the Solicitor-General was in general agreement with Lilburne’s democratic ideals, Cooke regarded his old client as irresponsible for pressing them with such personal vindictiveness against Cromwell and Fairfax at a time when the republic faced imminent threat of invasion, by Irish rebels and also by the Scots, whose Parliament had already declared Charles II their King. The Solicitor-General was instructed by the Council of State to prosecute Lilburne, although he was reluctant to act against a former client and doubted the wisdom of putting him on trial.29 Fairfax wanted Lilburne eliminated, but the legal system was for the first time independent of the government. The judges demonstrated their independence by refusing the Attorney-General’s demand that Lilburne be kept in the Tower, and allowed him bail over the summer on compassionate grounds, to look after his wife and children, struck down by smallpo
x. Cromwell, meanwhile, left for Ireland sure that Lilburne would be convicted. Everybody charged with treason always was convicted and he saw no reason why this traditional aspect of English legal life should not continue in his absence. But he reckoned without the courage and performing ability of ‘Freeborn John’ – a commoner, and therefore entitled to a jury of his ‘peers’ – his fellow commoners from London’s East End.
The Tyrannicide Brief Page 28
