The Tyrannicide Brief

by Geoffrey Robertson

  Meanwhile, a licensed transcript of the Trials of the Black Regicides, edited by Bridgeman himself, with the assistance of Finch’s notes, was rushed out to satisfy readers about the legality of the proceedings.16 It declared itself as An exact and most impartial account of the murtherers of his late sacred majesty and was anything but impartial (the title page promised a summary of the dark and horrid decrees of those caballists, preparatory to that Hellish act). Nor was it exact. Sections of Cooke’s speech were omitted17 and there were many implausible promises of fair play attributed to Bridgeman and probably inserted by the editor – Bridgeman himself.18 Its most curious omission was that it did not report the speeches and prayers of the regicides on the scaffold, such speeches being at the time routinely appended to accounts of the trials of traitors. The reason provided was wholly unconvincing: ‘. . . as they were made in a crowd and therefore not possible to be taken exactly, so it was thought fit rather to say nothing than to give an untrue account thereof: choosing rather to appear lame, than to be supported with imperfect assistances.’ Here, Bridgeman protested too much. The only reason why ‘it was thought fit rather to say nothing’ was because to say anything about the bravery of these dying men would give too much credence to their cause.

  Suspected publishers of the Speeches and Prayers of the Regicides were arrested after a thorough investigation by L’Estrange: they were held in prison for many months before being brought to trial at the Old Bailey in 1663, charged with sedition. The presiding judge was Hyde, Clarendon’s cousin, who had been on the bench at Cooke’s trial and who was much less skilled than Bridgeman at hiding his bias. ‘Tie him up, executioner!’ he roared as the first guilty verdict was brought down. His sentencing homily was short: ‘I speak it from my soul – I think we have the greatest happiness in the world under so gracious and good a king. I shall not waste time in preparing you for death – I see a grave person whose office it is [the hangman, as usual, stood in front of the prisoner] and I leave it to him.’ ‘I humbly beg mercy,’ said the convicted printer. ‘I am a poor man and have three children. I never read a word of it. I most humbly beg your Lordship to intercede for me.’ To which the judge replied. ‘I would not intercede for my own father in this case, if he were still alive.’19

  The most seditious passages singled out by the prosecution were taken from a letter Cooke wrote from the Tower (‘the cause, for which I am in bonds, is as good as ever it was . . .’) and his final speech from the scaffold. Thomas Brewster, a bookseller, made the best defence he could in the circumstances:

  BREWSTER: I did not do it maliciously or with any design against the government.

  LORD HYDE: The thing speaks for itself.

  BREWSTER: Booksellers do not usually read what they sell.

  HYDE: Have you any more? If you have, say it.

  BREWSTER: My Lord, these are the sayings of dying men, commonly printed without opposition.

  HYDE: Never!

  BREWSTER: I can instance many. The bookseller only cares about getting his penny. This book declares to the world that as they lived such desperate lives, so they died – so it might show the world the justice of their punishment and provide a benefit rather than sedition.

  Hyde was immune to the bookseller’s argument for free speech. He was, however, determined to vilify Justice Cooke in his summing up:

  Such a barbarous transcendent wretch that murdered his prince, without the least colour of justice! To declare that he ‘rejoiced in his bonds’ and that ‘the martyrs would willingly come from heaven to suffer for it’ – horrid blasphemy! What can you have more to encourage and incite the people to the killing of kings and murdering their lawful prince! To publish it all over England – this is to fill all the king’s subjects with the justification of that horrid murder. I will be so bold to say, not so horrid a villainy has been done upon the face of the earth since the crucifying of our saviour. To print and publish this is sedition . . . If men would be so vile to be as wicked at their deaths as they had been in their lives . . . is that a justification to publish them because they are the words of a dying man? God forbid.20

  The bookseller was duly found guilty, although the jurors took a long time and were obviously unhappy. Hyde sentenced Brewster to the pillory and then to ‘imprisonment at the King’s pleasure’ (he died there a few months later)21 and warned that it was an offence ‘to publish that which is a reproach to the King, to his government, to the church, nay to a particular person’. The King’s judges had now refashioned the law of sedition as well as that of treason to eradicate any favourable memory of those who had fought against royal absolutism. For the next three decades, it was impossible to display any sympathy for the regicides – it was dangerous even to have possession of their works. So far as the law could manage, they were to be cast down the memory hole of English history.

  The case of Brewster the bookseller was significant for John Cooke’s memory in this respect: the prosecution did not allege that his ‘letter from the Tower’ in Speeches and Prayers was a forgery, or that the booklet gave an inaccurate account of his speech from the scaffold. Given that the government blamed the publication for inciting rebellion, this would certainly have been its case if the indefatigable L’Estrange had uncovered any evidence of fabrication. It may therefore be assumed that John Cooke went to his death much as this publication depicted, steadfast in the belief that he had served the will of God and the cause of liberty. He died as he had lived, the quintessential ‘commonwealthsman’, who ‘fought for the public good, and would have enfranchised the people and secured the welfare of the whole groaning creation, if the nation had not more delighted in servitude than in freedom’. In these words, Cooke wrote the epitaph for the lawyers and the colonels, the Puritans and the preachers who had dared to act on the belief that no man was above the law.

  John Cooke’s final prayers had been for his wife and child. The intensity of Mary’s emotions and the extent of her sufferings over John’s horrible death can only be imagined. On the scaffold his heartfelt plea was that they should not be dispossessed of his small estate, over which royalist vultures like the Dean of Cork had been hovering for some months. But notwithstanding the precedents to which he referred – the commonwealth’s legislation permitted cavaliers to keep much of their property – all possessions of a traitor were forfeit to the King and this rule was now applied with full force. Charles II found that regicide land came in very useful as a means of rewarding those who had served his family in and out of office. The Dean was not in that category, so Cooke’s land and possessions were given by the King personally to Sir George Lane, as a reward for clerking his father’s privy council and for serving the loyalist cause in Ireland with Ormonde.22 Cooke’s property was not extensive but it was gone from Mary, and from Freelove, for ever.23 They were not permitted to mourn in London – when Cooke’s quarters were eventually taken down from Aldersgate they were flung into the common grave in St Margaret’s church, behind Westminster Abbey. The law of treason was designed to ensure that nothing remained of a traitor – not even his remains.

  Freelove grew up in the enfolding protection of her people – the people of God – in Northampton, and in 1678 she married John Gunthorpe, a London goldsmith, and emigrated to Antigua. There, Gunthorpe flourished as Provost Marshall and an MP in the island’s legislature, although Freelove’s paternity did not go unremarked by his enemies. She bore him sons who continued his example of prosperity and public duty – her line of descendants in due course would include a Chief Justice (of Trinidad) and even a Bishop, and is now scattered prolifically, mainly in the US.

  Vane’s death, and the wasting away of the republic’s leaders in far-flung fortresses, caused the Good Old Cause to grow older but in some respects better: the catastrophic defeat by the Dutch in 1667, as a result of the corruption and incompetence that flourished in the navy under Monck and Montague, made people yearn for the days when it was in the safe hands of Vane and Blake. That national disgrace
came hard on the heels of the great plague that devastated the country and the great fire that burned down half of London – including Hicks’ Hall, St Bride’s church and the Sessions House at the Old Bailey. Those who had seen Marston Moor and Naseby as God’s judgment on monarchy now believed they were suffering for the sin of restoring it. From this point the English crown takes on an abiding characteristic, as a subject of public amusement. It was with England’s defeat in the second Dutch war that rudeness about the royals became commonplace:

  As Nero once, with harp in hand surveyed

  His flaming Rome, and, as that burned, he played,

  So our great prince, when the Dutch fleet arrived,

  Saw his ships burn and, as they burned, he swived.

  So kind he was in our extremist need,

  He would those flames extinguish with his seed.24

  It was in 1667 too that judges lost their independence, becoming once more subject to dismissal at royal pleasure. Malign creatures of the King like Jeffreys and Scroggs slimed their way onto the bench after Clarendon was banished – the victim of a plot which involved one of the King’s mistresses. But it would take another two decades for England to rid itself of Stuart Kings, a release that owed more to fears of their Catholicism than to the heady Puritan combination of God and liberty that had triumphed in 1649. The new protagonists were Whigs and Tories, although the regicide flame was briefly held aloft by Algernon Sidney, who in his youth had refused Cromwell’s invitation to join the High Court of Justice but now described its sentence on Charles I as ‘the justiest and bravest action that ever was done in England’. He revered Cooke, and suffered his own treason trial in 1683. The main evidence against him was some personal jottings found in a notebook seized from his study: he argued that it was ‘the right of mankind to write in their closets what they please for their own memory and so no man can be answerable for it unless they publish it’25 but Jeffreys ruled that they proved his traitor’s heart. Sidney was duly convicted and disembowelled, providing the crowd at his execution with a brave performance dedicated to his heroes, the regicide martyrs.

  Jeffreys went on to run the ‘bloody assizes’ after Monmouth’s attempted rising in 1685, where the vilest of his many vile deeds was to put to death Alice Lisle – John Lisle’s seventy-year-old deaf widow – merely for feeding a starving soldier.26 By this time, Lambert had died in prison and Henry Marten in poverty. Milton, eyeless in Gaza, left in his last work – Samson Agonistes – coded references to his own agony about the regicide trials of 1660 – ‘the unjust tribunals, under change of times’ which had left its victims’ carcasses ‘to dogs and fowls a prey’. But there was one regicide still alive to welcome the ‘glorious revolution’ of 1689. Edmund Ludlow, at the age of seventy-three, returned to London for a few months, but was such a magnet for ‘old rebels and republicans’27 that the House of Commons revived his attainder for the murder of Charles I and once again he was forced to flee to Geneva. The inability to tolerate one of the greatest living Englishmen was an apt comment on the constitutional milksoppery of the ‘glorious revolution’. Its Bill of Rights entrenched the privileges of politicians rather than the liberty of the subject, and in due course – by the Act of Settlement of 1700 – the seal was set on a white Anglo-German Protestant monarchy, which inherited through feudal primogeniture (discriminating in favour of male descendants) from Sophia, the Electress of Hanover, who was the daughter of Elizabeth, sister of Charles I. Catholics were (and still are) absolutely excluded from succeeding to the throne.

  Epilogue

  And it may be said of him, without flattery, that he was of a most upright and conscientious spirit, one who did justice yet loved mercy; an affectionate and tender husband, a loving and careful father, a true and faithful friend; a lamb in prosperity, a lion in adversity, of meek and lowly spirit in the things of his own concern, courageous and bold in what concerned the glory of God and the good of his country.

  (Edmund Ludlow on John Cooke1)

  Charles I refused to plead in Bradshawe’s court, as he would have refused in any other, because of belief in his impunity: acts of state and of heads of state were beyond the reach of any legal system. That position was adopted in October 1648 by the continental kingdoms which ratified the Treaty of Westphalia, the basis of modern international law, and it would remain the position until 30 September 1946 when the judgment of the allied military tribunal at Nuremberg declared that rulers were responsible for crimes against humanity. The King’s refusal to submit to the law entailed his conviction and had the constitutional effect of securing those rights which the Long Parliament had declared but which had remained uncertain so long as there was no settlement with the King. The axe that beheaded Charles confirmed at its stroke the principles of parliamentary sovereignty, judicial independence, no taxation without representation, no detention without trial – as G.M. Trevelyan concludes: ‘Never perhaps in any century have such rapid advances been made towards freedom.’2

  The years of the republic were devoted more to defending these freedoms than to enjoying them. Parliament – even the Rump – remained a reactionary body, the lawyers who had led the fight for constitutional liberty being backward in supporting any reform which might affect their own property or status. Cromwell’s protectorate put down no roots in English hearts: the edifice collapsed when its flimsy institutions and unpopular leaders felt the bootheel of General Monck. It had provided stability whilst Cromwell was at its helm, but subsequently its erratic and increasingly chaotic course made restoration the alternative that best promised security in future.

  The new regime lost no time in self-celebration. The censorship system that denied to the ‘black’ regicides even their dying voices was paralleled by praise singing and pantomime celebration of Charles II, and pamphlets demonising Cromwell and all his works. Records of the commonwealth disappeared or were destroyed, disloyal correspondence was burned, the ‘People of God’ went to ground. It was the Vicar of Bray’s time: memories became self-protectingly selective and memoirs published from 1660 onwards cannot be trusted to remember with honesty what happened after the start of the civil war. Typical of the time was George Downing, the army chaplain who advocated king-killing and later served as Cromwell’s ambassador to Europe, now remorseless in hunting down his old comrades-in-arms. In New England, where Downing was remembered as one of the first Harvard graduates, his very name became a synonym for treachery. But in London, this colonial Quisling was quickly baronetted and became the King’s financial adviser and a massively wealthy property developer. Perhaps it is a measure of the English inability to recognize the achievements of its republicans that the name of the man who betrayed them (and human nature) still graces the street from which the nation is governed.

  After the settlement of constitutional monarchy in 1689, the retrospective battlelines were drawn over both the trial of the regicides and the trial of the King. The royalist textbook, Clarendon’s History of the Rebellion, was most influential, due to its elegance of style and its author’s supposed familiarity with the subject – notwithstanding that Edward Hyde had more scores to settle than anyone else. Understandably, from his perspective, the King’s trial was an abomination: he cannot even bring himself to write the name of John Cooke, and refers to the ‘choice of some lawyers (eminent for nothing but their obscurity, and that they were men scarce known or heard of in the profession) to perform the offices of the Attorney-General and Solicitor-General for the State’. Bradshawe he described with typical snobbery as ‘a vulgar spirit, acquainted only with a very moderate fortune’.3 Clarendon does not discuss the regicide trials, which he attended as a commissioner only on the first day but manipulated behind the scenes. The author of the rival work, The Memoirs of Edmund Ludlow, is haunted by the unfairness of the proceedings and the barbarity of the sentences, and is full of praise for Cooke, who was a soulmate. But there was no republican party to champion Ludlow: his memoirs were appropriated by Whig propagandists and heavily
edited, removing much of the detail of the regicide trials, and eviscerating the Puritan religiosity which permeated the original. Cooke’s undelivered closing speech, King Charles: His Case, was republished in 1691, earning Cooke more posthumous vilification from royalists,4 and it was appended to later editions of Ludlow’s Memoirs.

  Whigs were liberals, entranced by the civil war and the victory of Parliament but embarrassed by the execution of the King, which was put down to ‘cruel necessity’ and quickly passed over – as, in consequence, was the trial of the regicides. This attitude was partly induced by political considerations: English liberals are nervous at the best of times and it was political suicide (and under George III might have been sedition) to be perceived as supportive of king-killing. But there is something deeper here, which can almost be ascribed to a collective mental block, and even radicals like John Wilkes shared it: they all date English liberty to 1689, and dare not own up to any sympathy with the ideas of 1649. For most Whigs, even after elevating Cromwell to hero status in the nineteenth century, the episode remained highly distasteful, to be glossed over by reference to Charles James Fox’s aphorism about the right to resist – ‘A principle which we should wish kings never to forget, and their subjects seldom to remember’.

  Later historians mainly conceded the political progressiveness of the republic whilst deploring the trial as a ‘high crime’ or at least as the product of religious fanaticism. The execution was invariably perceived as counterproductive – ‘It gave to his person a sacredness which had never before appertained to it’.5 Only Catherine Macauley ventured a justification, on the rather vague basis of society’s ‘Right of self-preservation . . . from the lawless power and enterprises of the tyrant’.6 Thomas Carlyle described it as perhaps the most daring action ever taken in history – which may well be true – although he was the hagiographer who lauded Cromwell’s acts of ‘surgery’ at Drogheda. It took Gardiner’s late nineteenth-century study of the period in all its complexities to restore some sense of perspective, but even this great historian became confused about the King’s trial. He says that Cooke ‘threw his case away by relying on legal not political arguments’,7 although the whole point of a trial is that its prosecutor should rely on legal not political arguments.