14
The Protectorate
And now the Irish are ashamed
To see themselves in one year tamed . . .
But thou, the wars and Fortune’s son,
March indefatigably on.
(Andrew Marvell, ‘Horatian Ode’)
CROMWELL HAD BEEN recalled from Ireland in May 1650, to confront a new threat from Scotland which had welcomed Charles II as its King once the young man – with his father’s disingenuousness – took the Solemn League and Covenant, pretending to bind himself to Presbyterianism for ever. They agreed to invade England and restore the monarchy, in return for the monarch’s promise to impose Presbyterianism by force of law. To sweeten this pill, Charles announced from his exiled court in Breda a general amnesty for all who had fought or judged his father, with only three exceptions: Cromwell (naturally), Bradshawe (now president of the Council of State) and Cooke.1 Cromwell had an army and Bradshawe was still heavily protected in Whitehall, but Cooke in Munster – sitting in open courts, lecturing Catholics, praying in congregations – was always vulnerable. After surviving the storm he took no special precautions: his response to being made a target of royalist terror was to write Monarchy No Creature of God’s Making, a provocative argument that (as the title page claimed) ‘The execution of the late King was one of the fattest sacrifices that ever Queen Justice had’.
Fairfax, the army’s leader, had resigned in June 1650, pleading exhaustion and a dislike of killing fellow protestants – which excused his reluctance to fight a war against the Scots that he doubted could be won. This left Cromwell in command of a coming conflict in which the two sides were separated only by that narrow distinction between the authoritarian Calvinism of the Presbyterian Kirk and the more tolerant Calvinism of the English Congregationalists. ‘I beseech you, in the bowels of Christ, think it possible you may be mistaken’, Cromwell begged the bigoted Kirkmen as he marched north. But they were constipated by their solemn covenant, and undismayed by the coming of war’s and Fortune’s son, whose small and sickly army they trapped at Dunbar. As 3 September dawned, no one could have thought an English victory possible. But this was Cromwell’s lucky day, and Colonel John Lambert (his second-in-command) provided the plan for an astounding military success, in which the Scottish army was decimated. As usual, Cromwell gave all the credit to God. In this hour of his greatest military victory, Cromwell communicated it to the Commons with a plea – virtually an order – to get on with the godly business of law reform: ‘Relieve the oppressed, hear the groans of the poor prisoners in England, be pleased to reform the abuses of all professions; and if there be anyone that makes many poor to make a few rich – that suits not a Commonwealth.’
This was exactly what John Cooke had been saying for the past five years. It was the authentic voice of radical Puritanism which came from Cromwell at moments of high emotion. The lawyer-fed Rump could not ignore it: they set up a committee chaired by Matthew Hale to find ‘the speediest way to reform mischiefs that grow from the delays, the changeableness and the irregularities in the proceedings in the law’. Cooke was heartened by the establishment of the Hale committee, which included some of his old friends like Hugh Peters and William Steele. His experiments in Munster could serve as their template.
The Scots were beaten but unbowed. They crowned Charles II at Scone in January 1651 and put him in charge of what was left of their army. He invaded England later in the year, expecting the country to rise in his support. But the country did no such thing: on the contrary, the commonwealth at this point commanded general support and even loyalty. The nation was fed up after a decade of civil war and rightly judged that only Cromwell could guarantee peace. He played an astute waiting game, leaving General Monck (the former royalist who had, after his defection, become a solid parliamentary commander) in Scotland to subdue the lowlands and cut off Charles’s retreat, whilst forces under his two doughty colonels – John Lambert on one side and Thomas Harrison on the other – shadowed Charles through middle England, intercepting his supplies and inhibiting any show of support. He reached Worcester, where Cromwell was waiting – and waiting for the dawn of another 3 September.
In 1651, once again, it proved Cromwell’s lucky day, although the result of the battle of Worcester was never really in doubt. Charles II fled: roundhead soldiers failed to spot him, in the upper branches of an oak tree outside Boscobel. His second in command, the Earl of Derby, was court-martialled and executed – an indication of Charles’ fate, had he been captured. He was entrusted to an underground Catholic network used by Jesuit priests, and smuggled along this lifeline to an apparently hopeless exile in France. In the meantime, all London turned out to cheer General Cromwell’s return from Worcester, much as they might cheer the return of a king.
But for all his might as leader of the army and his moral force in the Commons, Cromwell was frustrated by the Rump’s lack of progress. It failed to arrange fresh elections or to do away with titles and monopolies, although its failure to reform the law infuriated him most. The Hale commission had reported with a raft of proposals which might almost have been lifted from Cooke’s Vindication: imprisonment for debt should be abolished; law fused with equity; all land holdings should be registered and new county courts established at the main provisional centres. But there were thirty-three lawyer MPs who sat regularly in the Commons, comprising half of the House, and they managed to obstruct every attempt to implement the report. The most influential of them – Whitelocke and Widdrington, Lenthall and St John – were firmly opposed to any reform that could threaten professional privileges.2
Cromwell’s army had petitioned the Rump to hold fresh elections, implement Hale and get on with abolishing corrupt officials and ungodly ministers, but to no avail. So on 1 April 1653 Oliver Cromwell led his troops into the House of Commons: ‘Take away this bauble,’ he ordered of the precious mace which symbolised parliamentary sovereignty and had once rested on the table of the High Court of Justice alongside Cooke’s charge. ‘You are no Parliament,’ he shouted, listing their failure to provide speedy justice and their protection of the legal profession amongst their chief sins. He then marched to Whitehall to inform the Council of State, where President Bradshawe responded with as much forlorn dignity as the circumstances permitted. ‘Sir, we have heard what you did at the House this morning and before many hours all England will hear of it. But Sir, you are mistaken to think that the Parliament is dissolved, for no power under heaven can dissolve them but themselves; therefore take you notice of that.’ Commonwealthsmen like Bradshawe and Ludlow and Vane could never forgive this action, but John Cooke was in two minds: he rode the old Munster circuit, torn between allegiance to Parliament and support for Cromwell’s attack on the MPs who were blocking the law reforms to which he had dedicated his life.
Cromwell quickly issued a declaration justifying the forcible dissolution of a body whose ‘lack of progress’ and desire for self-perpetuation had caused so much grief to ‘the good and well affected’. The Rump would be replaced by a caretaker Parliament which would ‘encourage and countenance all God’s people, reform the law and administer justice impartially; hoping thereby the people might forget monarchy’.3 It was unfairly but immortally characterised by royalists as ‘Barebone’s Parliament’ after one of its more godly members, the Puritan preacher Praise-God Barebone. Some of these radical army-appointed MPs talked ignorantly about how law might be practised without lawyers, and proposed to abolish Chancery (the equity court) and to express all law in a short statutory code. This was precisely the puerile radicalism that Cooke had attacked in the Vindication. And as if to prove that the present system, despite its flaws, could still do justice if operated fairly, who should return to London to put it to the test but ‘Freeborn John’.
After Lilburne was banished for contempt of Parliament for his libels on Haselrig, he had joined the refugee English abroad, unwisely but inevitably consorting with royalists. He was anxious to befriend them lest he be ‘Doris
laused’ (as he put it) for his part in urging the King’s trial. The Commons had decreed his death should he come back to England, but Lilburne plausibly argued that its dissolution had ended his liability for contempt of the House. He was arrested, none the less, and his old supporters came out onto the streets, including 6,000 women who signed a petition presented by their leader, the formidable Mrs Chidley, to a trembling Praise-God Barebone. Meanwhile, and despite his imprisonment, Lilburne managed to publish A Juryman’s Judgement – an exhortation to his future jury to acquit him. Cromwell was up to Lilburne’s tricks and this time had a few of his own: on the eve of Lilburne’s trial there appeared in print the testimony of government agents who had been tracking his meetings with royalist exiles. These revelations lost him some sympathy, but his supporters still crowded into court to applaud his jousts with the judges.
Lilburne’s capacity to make legal history was undimmed. He invited the jury to pass judgment on the morality of the act of banishment rather than the more embarrassing factual question of whether he had breached it. The statute had set the stakes too high by decreeing death should he return, and the jury’s verdict was a condemnation of the intemperate legislators: ‘John Lilburne is not guilty of any crime worthy of death’. There were the usual rejoicings, even amongst his guards, but he was taken back to the Tower while the Council of State turned itself into the Star Chamber: it called each juror before it to demand an explanation. But the jurors had all met at the Windmill Tavern and agreed on their answer: ‘I gave the verdict with a clear conscience and I refuse to answer any questions about it.’4 It was an unparalleled act of defiance: John Lilburne’s juries carved out a new role for that body as an independent protector of the citizen against the state.
Barebone’s Parliament was an experiment which took only six months to fail. It ended in December in a mass resignation of its army-sponsored MPs, orchestrated by the officers to make way for Oliver Cromwell to become Lord Protector of England (and of Scotland and Ireland), under an Instrument of Government. This remarkable document, drafted by John Lambert, was Britain’s first (and only) written constitution. It was also the first law to embody the bedrock principles of a modern democracy, under which ‘the Commonwealth of England, Scotland and Wales’ would be governed by a Head of State and Executive Council which could not tax or make war or legislate without Parliamentary consent. It sought to preclude any form of dictatorship: legislative authority resided in ‘the people assembled in Parliament’ elected every three years by all male citizens in England and Wales who were worth £200, unless they were English royalists (banned from voting for nine years) or Roman Catholics or Irish rebels (permanently disenfranchised). Legislation had to be presented for the Lord Protector’s consent, but he had no ‘negative voice’: if he did not consent within a month or satisfy Parliament that it should reconsider the proposal, then the bill would become law. Parliament had to approve appointments of senior judges, who were to have security of tenure for life, independent of the government, i.e. of the Protector and his council. Any law which interfered with religious doctrine or worship was unconstitutional ‘provided the liberty be not extended to popery or prelacy, nor to such as, under the profession of Christ, hold forth and practise licentiousness’. The English could go to heaven in their own way, without the help of Catholic priests, Anglican bishops or ‘ranters’ who thought that since salvation was pre-ordained, they might as well enjoy themselves with as much sex and alcohol as possible. The Lord Protector was empowered to award honours, but he could not grant pardons for murder or for treason. He was, in effect, President for Life, but crucially, his office ‘shall be elective and not hereditary’, and on his death the Council must meet immediately and not disband until they elect his successor.5
Diehard republicans deplored the protectorate, which they viewed as a monarchy in all but name, and never forgave Cromwell for engineering it. John Cooke, however, continued to accept commissions and was sufficiently trusted to undertake the delicate task of apprehending his friend Ludlow and obtaining his undertaking to present himself to Cromwell (now ‘His Highness’) at Whitehall. Cooke continued in great demand: he presided over a court of claims in Dublin, and an assize court in Cork where there is a record of his granting costs to an army lieutenant against a colonel – evidence that he did not decide disputes by the rank of the disputants. He was solicited to give legal opinions to the government on the confused issues of law arising from the rights of ‘adventurers’ (who advanced money to the army in return for a right to forfeited land) and the legal consequences of amnesties and surrender agreements.
One important new face in Ireland in 1655 was that of Major-General Henry Cromwell, the younger son of the Protector. Cooke welcomed him with a plea to do something about the state of Irish prisons. Henry, however, did not share the zeal for law reform that obsessed his father’s Puritan generation. The young man (he was twenty-seven) preferred to associate with the old English landowners who distrusted their radical chief justice, with his propensity to rule in favour of their tenants. In one letter to Thurloe (Cromwell’s Secretary of State) Henry appears irritated that ‘Judge Cooke refused to act’ on a rumour that an alleged murderer had been accepted under a false name as a member of the Protector’s Life Guards. It sounds an unlikely story and Cooke obviously so regarded it: Henry thought it should have been investigated, and he reminded Thurloe of the need to find other judges prepared to work in Ireland.6 Egged on by his landowner friends, Henry was probably behind the protectorate’s decision to close down the Munster court and bring back the Upper Bench, a set of four courts (including a separate court for equity) which would be permanently based in Dublin. On 13 June 1655 the council appointed John Cooke to be a judge of this new court – it must automatically have assumed that he would accept one of the foremost positions of profit and honour in the land. But two months later, in a long and passionate dispatch to Fleetwood, Cooke sent in his resignation. He explained that his conscience would not permit him to accept a position that was antipathetic to all he believed in and had struggled to achieve.
Cooke poured out his heart about the vices of the system that was being reintroduced. The old forms of pleading, the split between law and equity, the proliferation of court officials, all on the take, the inbuilt bias in favour of rich litigants, the harassment of debtors, the opportunities for manipulation by malicious plaintiffs – all the evils and the tedious formalities he hoped had been ‘interred in the sepulchre of monarchy’.7 He lamented the lack of progress in his beloved England: ‘so long as I saw any hopes of law reform I went on cheerfully . . . if I should now continue the old oppression, I should be the most egregious dissembler that ever sat on a bench.’ The court to which he had been appointed ‘had power only to imprison and torment its suitors, not to open prison doors or relieve the oppressed . . . for any man to be called “Justice” – who by the course of the court where he sits cannot do justice to any man – is but a ridiculous utopian fantasy’.8
John Cooke’s resignation letter was pamphlet-length, and leaves an indelible description of the morass that was justice in Ireland – and in England – in the mid-seventeenth century. It is impossible to read it without recognising his utter sincerity and the fury of his disillusionment at the failure of reform. His resignation involved real sacrifice: he was approaching fifty years of age, and lacked the connections to rebuild his career in an England that had moved on since 1649, and by no means in a direction he approved. His thoughts turned to retirement:
I wish I could find out some Protestant monastery where I might, with my dear relations and some of the people of God, bid adieu to the world which crucified Lord Jesus Christ, and spend the remainder of my days in prayers and tears which have been counted the Christian’s best weapons.9
But the state could not spare him just yet. The large-scale confiscation of rebel lands with the subsequent sale or letting of this newly acquired state property, and the harsh business of ‘transplanting’ Iris
h families to Connaught provided ready means of unlawful enrichment for commissioners entrusted with the task and the council was determined to stamp out corruption. In February 1656 Cooke agreed to sit at Athlone, together with Sir Charles Coote, to investigate allegations of malpractice and unlawful oppression of the Irish.10 This was a delicate task, since it meant curbing the greed of Parliament’s supporters and rectifying the grievances of Catholics and royalists, but Cooke’s reputation for impartiality and honesty made him the best choice to balance the less judicious Coote.
He was also appointed to decide claims under the Act of Settlement, which protected from forfeiture those who could prove ‘constant good affection’ to Parliament during and after the Catholic rebellion of 1641. Records of his commission when it sat at Mallow from July to September 1656 show that Cooke was exercised by the harshness of the test, which would be failed by claimants who had saved Protestants from butchery in 1641 but had subsequently accommodated to Catholic or royalist occupying forces. In such cases, he was obliged to rule that ‘doing nothing was insufficient to prove constant good affection, which must appear by outward signal to demonstrate the affection of the heart, and not in sitting still’. This excluded men who had supported parliamentary forces but had then stayed with Inchiquin after his defection to the King: they feared reprisals from fellow Catholics if sent to Connaught. ‘They would rather be sent to the plantations in Barbados,’ their counsel explained, urging the judge to do them equity. ‘We must proceed according to law’ was Cooke’s regretful reply. He was upset by the wailing in the courtroom when he rejected the claim, and he immediately wrote to the council explaining how the harshness of the law was discrediting justice, by requiring rejection of all claims. He had carefully distinguished those claimants who had come nearest to showing ‘constant good affection’ – and hoped that executive discretion might be exercised in their favour.11
The Tyrannicide Brief Page 32
