The Tyrannicide Brief

by Geoffrey Robertson

  Geoffrey Robertson

  We are not traitors or murderers or fanatics but true Christians and good commonwealthsmen, fixed and constant in the principles of sanctity, truth, justice and mercy, which the Parliament and army declared and engaged for, and to that noble principle of preferring the universality before particularity. We 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 freedom.

  John Cooke, letter from prison, September 1660

  That afternoon, going through London – I saw the limbs of some of our new traitors set upon Aldersgate, which was a sad sight to see; and a bloody week this and the last have been, there being ten hanged, drawn and quartered . . . After dinner to my Lords, and from there to the Abbey . . . and so to the Crowne in the Palace-yard – I and George Vines by the way calling at their house, where he carried me up to the top of his turret, where there is Cooke’s head set up for traitor, and Harrison’s on the other side of Westminster Hall. Here I could see them plainly, as also a very fair prospect about London.

  Diary of Samuel Pepys, 20/21 October 1660

  Silver Medal, struck in John Cooke’s honour by Thomas Simon, 1649 (British Museum, misdated 1660)

  Preface

  This is the story of an obscure lawyer once called upon to make history. The severed head that spoiled Pepys’s pleasant view over London had previously been attached to body parts inspected by John Evelyn, another diarist whose wit has proved congenial to modern times. He gloated ‘Oh, the miraculous providence of God!’, at the sight of a basket just brought from the gallows to feed the stray dogs at Aldersgate. It contained hearts, testicles and penises, ‘mangled, and cut, and reeking’, of men hanged, drawn and quartered at Charing Cross. One was John Cooke, for the past decade a judge acclaimed for law reform and for championing the poor, the first to propose a host of institutions we now take for granted, including a national health service and legal aid. Cooke had been executed for demanding the kind of justice that, 350 years later, the world at last would want: the ending of impunity for rulers responsible for making war on their own people.

  That such a man should have been torn quite literally to pieces after a rigged trial at the Old Bailey, remains one of English history’s most shameful episodes, white-washed by lawyers and ignored by historians. Today, John Cooke is only mentioned as a passing wraith in books which dismiss him as an embittered Puritan fanatic or as a dodgy lawyer prepared to do the dirty work for the rising Cromwell. These caricatures are so at odds with the actual records – his published writings, the transcripts of his speeches and what can be gleaned of his personal life – that fairness requires a belated defence for this bravest of all barristers, who died for the highest principle of advocacy.

  The bad press received by ‘the regicides’ has been attributed to the fact that history is written by winners, and John Cooke’s actions have certainly been interpreted by historians with their own agenda – in the words of W. S. Gilbert’s sentient sentry, ‘either a little liberal, or else a little conservative’.

  For Tory writers, the trial and execution of Charles I were straightforward crimes of treason and murder. The Whig historians who refurbished Cromwell’s reputation were inclined to accept the unlawfulness of the proceedings, passing over them quickly with the excuse (attributed to Cromwell as he inspected the King’s corpse) of ‘cruel necessity’. Neither school has bothered about the regicide trial, other than to praise Charles II for confining his vengeance to those who had prosecuted his father. Left-wing authors have preferred to celebrate the Levellers – the journalist-agitators who first suggested that the King should be prosecuted but who went to water (or to the country) when the hard decisions about that trial had to be made, and later forged shady alliances with royalists. It is doubtful whether any English author, even today, can approach the King’s trial without some antagonistic sentiment – it seems so wrong to have cut off the head of the only English monarch who cared about culture.

  On the groaning shelves of literature on the English revolution, John Cooke rates only a few mentions – usually as the barrister who acted as the King’s prosecutor. In this role he has been ill-served by twentieth-century accounts which distort an event precisely recorded by skilled law reporters. Editorship of The Trial of Charles I in the ‘Notable British Trials’ series (1928) was entrusted to a ranting royalist, J.G. Muddiman. His worst mistakes were exposed in 1964 by Dame Veronica Wedgwood in The Trial of Charles I (1964) but this book also has factual errors and a different interpretative bias: Dame Veronica thought the trial a disaster for ‘the good old cause’ and blamed its ‘overzealous’ prosecutor. More recent studies have pointed out that the trial was not the foregone conclusion alleged by its detractors, but have not effaced Wedgwood’s impression. There has been no study of Cooke’s own trial in 1660: curiously, this bloody assize has never been the subject of serious analysis, either by historians or by lawyers. Although most barristers supported Parliament against the King, their Inns of Court have since striven to cover up their republican past by genuflections to the royal family – especially Gray’s Inn, which today makes no mention at all of Cooke and Bradshawe, its members who did most to change the course of history. Its largest portraits are of Charles I, Charles II and the future Charles III.

  My own interest in Cooke began by chance, when I was invited to Gray’s Inn to dispute a paper delivered by Justice Michael Kirby on the 350th anniversary of the trial of Charles I. I accepted only because of a long-standing friendship with Michael, whose paper concluded that the trial was ‘by legal standards a discreditable affair’. This seemed indisputable, until I dug out a very old edition of the State Trials, purchased in my youth as an investment (foolishly: most of these reports may now be read for free, and without dust, on the internet). I blew away cobwebs and settled down to absorb The Tryal of King Charles the Firft, accufed of treafon and fubverting juftice. I did know something of the history of criminal law and procedure, and to my surprise I found this trial to be far from discreditable – on the contrary, it appeared for its time as an oasis of justice and fairness, the most creditable proceedings that had yet taken place in an age where those accused of treason were usually convicted within a few hours. Defendants were tortured if they refused to plead, and any who offended the judges of the King’s own Star Chamber had their ears cut off and their noses slit. My sense that Kirby and Wedgwood might have got it wrong deepened when I found in my volume a transcript of the trial of the regicides, held eleven years later. The contrast could not have been more marked: if ever a trial was a ‘discreditable affair’, this was it. The defendants had been locked up for months in plague-infected prisons, and were brought to the Old Bailey in shackles and leg-irons to be viciously mocked and abused by the partisan judges of Charles II, who instructed vetted jurors to convict without bothering to leave the jury-box.

  John Cooke struck me as a pivotal figure: he was at the centre of both the trial of Charles I in 1649 and the trial of the regicides in 1660: the prosecutor of the King now prosecuted by the King’s son, courageously arguing that it had not been treason, but professional duty, to accept the tyrannicide brief. The events in which he participated are, of course, the stuff of countless histories of the English civil war, interregnum and Restoration. My reason for offering a new reading of them is that John Cooke’s arguments resonate today in ways that historians have not appreciated. For example, the King’s trial may now be seen as the earliest precedent for trials of modern heads of state – political and military leaders like Pinochet and Milosevic, who attempt (just like Charles I) to plead sovereign immunity when arraigned for killing their own people. Cooke’s case against the King was the first modern legal argument against tyranny – based (as Bush and Blair might more credibly have based their case against Saddam Hussein) on a universal right to punish a tyrant who denies democracy and civil and religious liberty to his people. In c
ontrast, the trial of the regicides deserves to be stigmatised as ‘victors’ justice’, a barbaric act of royalist revenge to satisfy the blood-hatred of Charles II who (according to Evelyn) personally attended Cooke’s disembowelling.

  This was a transitional time, when post-Renaissance minds could be moved by the poetry of Shakespeare yet approve the most savage torture in the interests of public order. It was a time when the rooted English obsession with social rank was briefly challenged by men from Cromwell’s favourite constituency, ‘the middling sort’ of tradespeople and lesser gentry. Cooke, a poor farmer’s son, was able to rise above the social caste first noted, at the time of his entry to Oxford University, as ‘plebeian’. Although the occupations and preoccupations of mid-seventeenth-century society are long gone, it is the lawyers (and the prostitutes) who have changed least. Barristers were as numerous, comparatively, in London in 1640 as they are today, located in the same places – the Inns, the courts and Parliament – where they still study, think and argue by the same plodding mix of precedent and principle. Their ethics, their practices and their attitudes are more highly developed, but their peculiar and indulged professional vices remain: a genteel interest in money, patronage through old boy networks and political preferment, a social exclusivity and a calculated deference to the wealthy and the well-connected. It is possible, even in today’s Inns of Court, for ghosts to walk into reasonable focus. I write this in my flat overlooking the Middle Temple, where the famous equestrian portrait of Charles I, attributed to van Dyck, now hangs. Charles II came to a feast in the Temple in 1661 to honour his own Solicitor General for prosecuting his father’s judges. Legend has it that on some such occasion the King became so drunk that he could not stand for the loyal toast, and said to the Masters of the Bench, ‘remain you also seated, both tonight and hereafter.’ Today, we still obey him.

  No life of Cooke has been attempted before. There are no surviving records of the man amongst his family and friends, other than in the much-edited memoirs of Edmund Ludlow, the Puritan MP who fled to Switzerland in 1660 to escape royalist revenge. Even the prolific genealogical websites are bereft of any reference to his wife, Frances, or to his assumed second marriage or to the death of his young son or to Freelove, the daughter who made life anew in the colonies. But his conduct of the King’s trial and courageous self-defence at his own trial have been fully transcribed, and amongst the Thomason tracts – an exhaustive collection of the pamphlet literature of the period – are some half-dozen lengthy booklets which Cooke wrote between 1646 and 1652. There is an account of the speech he made on the gallows, and the affecting last letters written to his wife (‘let us not part in a shower . . . God hath wiped away all tears’), and to his baby daughter, Freelove – moving enough for Charles II’s government, which did not question their authenticity, to prosecute all who dared print them. There are, alas, few contemporary documents to provide details of his judicial work in Ireland where the public records of the period were destroyed in a fire in 1922. No one has sought to draw together the strands of the remarkable, indeed sensational, life and death of Britain’s most radical lawyer.

  In doing so, I am conscious of having tiptoed across historical minefields. But my reading of events that turn so much on trials and their procedures and beliefs about constitutional rights has been informed by a long professional life as a trial lawyer. My sense of what was really happening at the Old Bailey, the Inns of Court and Westminster Hall sometimes differs from that of historians. It is astonishing, for example, that almost all of them, Wedgwood included, relate with embroidered detail how Cooke opened the King’s trial by reading the charge, when this was in fact done at great length by the court clerk. Such a simple mistake, misreporting the opening of the most significant trial in English history, suggests they may have made more deep-seated errors of analysis and appreciation. This is a further reason for offering a new account of events whose actors, however driven by long-past religious passion, first expressed our modern belief in civil liberties and democracy. In order to get their message across the years, I have made minor changes in their language, updating spelling and calligraphy (and occasionally grammar) and modernising some sentence constructions and forms of address (‘you’ replaces ‘thou’, for example). It has been necessary to edit trial transcript extracts, I trust without unfairness to the original speakers. Seventeenth century surnames were erratically spelled. I have preferred ‘Cooke’ because that is how John signed himself, although his name often appears without the ‘e’. At that time the calendar year began on March 25th, so contemporary records confusingly record, for example, the King’s trial in January 1649 as having taken place in January 1648. I have followed the usual updating practice.

  British history is too often told – to children and on television – through the indulged lives of kings and queens, and never through the lives of lawyers. Yet men from the Inns of Court dominated that action-packed age, 1641–60, the crucible years in which they forged many of the ideals the world today most cherishes: the sovereignty of parliament; the independence of judges; freedom from arbitrary arrest and detention; the right to silence; comparative religious toleration – in short, freedom from tyranny. Any rational people would take pride in the events of 1649, the critical year for this ideological progress. But it has been the British way to ignore the Republic, to deplore the prosecution of the King and to pretend that liberty dates from what is dubbed ‘the Glorious Revolution’ of 1689 – a milksop affair neither glorious nor revolutionary, which merely retrieved from the fall of the Stuart kings some of the gains made in 1649. This mental blockage about giving credit or celebrity to the ‘Commonwealthsmen’ is exemplified by the school syllabus: at age 13 schoolchildren are falsely taught that what appeared on the currency as ‘the first year of freedom by God’s blessing restored’ was really no more than a time of bloody turmoil and revenge. There is national amnesia about the persecution of republicans in 1660, at an Old Bailey show trial of Stalinesque proportions. Although I forbear from urging the Criminal Cases Review Authority to refer John Cooke’s treason conviction back to the Court of Appeal for posthumous quashing, and a royal pardon somehow seems inappropriate, this book may serve to commemorate the integrity and vision of a man who in these qualities at least was beyond his time. He was a tyrannicide in the noble Roman sense, rather than a king-killer. Cromwell’s chaplain, Hugh Peters, was right to congratulate him in Westminster Hall on a ‘glorious beginning of this great work’ of ending the impunity of despots.

  That work continues today, in far-flung tribunals where the proceedings in Westminster Hall echo ironically. Saddam Hussein after his capture addressed the court with the same challenge that Charles I threw at his judges: ‘By what legal authority do you try me?’ Slobodan Milosevic at The Hague at first played the King’s gambit, refusing to enter a plea. General Pinochet notoriously asserted the law’s immunity for heads of state – the same sovereign impunity that John Cooke devised a means to circumvent. He did so by formulating the crime of tyranny to punish a leader who destroys law and liberty, or who bears command responsibility for the killing of his own people, or who orders the plunder of innocent civilians and the torture of prisoners of war. Cooke’s charge, and the evidence to support it, was produced in less than ten days, with (in fact, despite) the help of a Cambridge academic and a committee of MPs: an achievement, for which his own life was the hazard. Cooke realised that the King’s determination to live or die as a divinely ordained, absolute and hereditary monarch made compromise impossible: as Solicitor-General, he must push England to where logic (‘right reason’) led, where law (Magna Carta) pointed and where God (the first Book of Samuel) approved, but where no other nation at the time or for another century would reach: a proto-democratic republic with constitutional guarantees for civil and religious liberties.

  Roundheads of John Cooke’s stamp are in short supply in modern Britain, where ‘radical barristers’ are contradictions in terms and former political fire
brands kiss the monarch’s hand on taking their oath of cabinet office or self-importantly stroke their ermine in the House of Peers. Monarchy still exerts its vainglorious magic, from Eurostarry princesses to feudal Saudi royals to the virgin-deflowering King of Swaziland. Australians, normally a sensible people, voted in 1999 to keep a-hold of the Queen of England rather than have an Australian as their head of state: the republican campaign made no mention of ‘the good old cause’ or the historic part it played in securing liberty throughout the British commonwealth. At the Old Bailey in 1660, the prosecution alleged that the King’s execution was the culmination of a terrorist plot devised by Puritans in Massachusetts, who despatched Peters and young Henry Vane to implement it in conspiracy with Cromwell and Cooke. Today in the United States the regicides are remembered in street names, but John Cooke’s life demonstrates that their true legacy is the use of criminal law to end the impunity of tyrants. That was the instruction written on his brief and it was the cause for which he sacrificed his life. That cause has now taken shape in an International Criminal Court, and it is (so to speak) a crowning irony that the Bush administration, for all its proclaimed Puritan religiousity, has sought to destroy one institution that can deliver on Cooke’s proposition that rulers who oppress their people must be brought to justice.

  This book has benefited from research by George Southcombe and Ian Williams and from the nurturing editorship of Jenny Uglow. My thanks additionally to Wilfrid Prest, Tim Lello and Seamus O’Keefe for convivial discussion, to Gill Rushton at the Hampshire Record Office, Lesley Whitelaw, Middle Temple Archivist, Gray’s Inn librarian Theresa Thom, to Chris Pigott and Wayne Gunthorpe, distant descendants who helped to trace Freelove Cooke’s happy ending – and to Michael Green who located for me at Vevey the graves of Ludlow and others who escaped the King’s vengeance. I have been assisted (in so far as its restricted opening hours could permit), by staff at the British Library. Tabitha Peebles worked prodigiously on manuscript drafts, which David Williamson has already turned into a moving play. All errors, I am happy to say, are mine alone – the difference in writing a history book rather than a legal text is that you actually look forward to having them pointed out.