The Tyrannicide Brief

by Geoffrey Robertson

  Prologue: There But For Fortune . . .

  The law can be a matter of luck – as much for lawyers as for their clients. It is known, well enough, how litigants may draw hostile judges or prejudiced jurors, or lose good cases on a sudden technicality. It is less appreciated, but no less true, that the career of a lawyer may also be governed by chance: the elevation to senior rank, or to a judgeship bestowed by a political patron or through the timely influence of a friend or relative. In the life of an advocate in Britain, fortune most often smiles (or grimaces) in the guise of the delivery of a ‘brief’ – a set of papers, traditionally tied in pink tape, directing an appearance in court on behalf of a particular client. Some briefs can make you or break you at the bar of public opinion – because people will, naturally enough, identify pleaders with the cause for which they plead. As an elementary protection for those who act for unpopular causes or villainous clients, barristers today adopt the professional conceit that they have no choice: just as a cab driver may not turn away an unprepossessing but paying passenger, so an advocate must, once an appropriate fee is proffered, accept any case that is capable of argument. This principle – now called the ‘cab-rank rule’ – is the kerbstone of the barrister’s right to practise, and the guarantee that any party, however unpleasant or unpopular, may have the benefit of a counsel learned in the law. For those who hold fast to this principle it still brings certain dangers, usually in the post – excrement if you defend paedophiles, the prospect of a letter-bomb for prosecuting terrorists. In some places – Belfast and Bogota and Baghdad provide recent examples – vengeance can come to lawyers in the form of an assassin’s bullet. This great – if perilous – principle was first asserted by John Cooke, barrister of Gray’s Inn, into whose hands history’s most fateful brief was delivered by parliamentary messenger on Wednesday 10 January 1649.

  The day itself was ferociously cold. The Thames had frozen, with the consequence of a modern tube-strike, since it immobilised the boats that carried passengers from the pier at Westminster, where the civil courts and Parliament sat, to the Temple and then to the Tower where traitors awaited trial, the easternmost end of this compact and crowded city of half a million citizens. It was not until the dusk had thickened that Parliament’s messenger arrived on horseback at Gray’s, the northernmost of the Inns of Court which sprawled up from the Temple to provide lodgings and offices for the fast-growing ranks of lawyers, in chambers which spiralled around compact squares and gardens. A few pinpoints of light from candles and fireplaces punctured the gloom, as the clerk dismounted and asked for directions to the chambers of a barrister of the Inn. The arrival of this brief was not unexpected, and it was indeed the very reason why the Inns on this early evening were eerily quiet: semi-deserted, despite the imminent start of the legal term.

  Most lawyers had fled to the country ‘purposely to avoid this business’ as Bulstrode Whitelocke put it. He was one of the first to flee – and he was Lord Chancellor. He was followed by the Chief Justice – one of Cromwell’s closest friends – and many others. Those who remained, like John Cooke, argued agonisingly at dinners in their Halls and later in the taverns, over both the wisdom and the legality of ‘this business’, a professional engagement which might spell death and, what was much worse, eternal damnation. Cooke turned down offers of a carriage ride to his family home near Leicester. ‘I must wait upon God,’ he replied, a reference to the unshakeable belief, which would remain throughout his life, that nothing happened to him but by the will of his Maker. He was waiting, puffing at a long pipe in his smoky chambers, when Parliament’s messenger arrived at his door to deliver a parchment. It was a brief, and it had his name on it, ‘to prepare and prosecute the charge against the King’.

  John Cooke would have felt the thrill that excites every advocate on receiving a portentous retainer. It is a rush of egotistic pleasure that others think you the best (or only) person for this particular job, cooled by a nervousness that your performance might affect your career, for good or ill. But this brief was unlike any other, before or since. It was a set of instructions to formulate a criminal charge against a king widely regarded as ruler by divine right, in a credulous age when people believed their skin diseases could be cured by a touch from a monarch who was God’s representative on English – and Irish and Scottish – earth. Even to contemplate laying a hand on the Lord’s anointed was treason, punished by death if and when the royalists returned to power. More immediately, it would make Cooke an instant target for assassination, in a city infiltrated by de-plumed but re-pistolled cavaliers.

  Apart from this physical danger, there was a looming professional problem: there was simply no basis that legal minds at the time could conceive for prosecuting the King, the source of law, who by definition could do no wrong. That was what the kings and queens of England, and their governments, had always believed, and lawyers had always presumed. Since Rex was lex, a case of Rex v Rex was a contradiction in terms. Besides, since Magna Carta guaranteed every defendant a jury of his peers, how could the King, who obviously had no peer, be put on trial? These riddles were insoluble, said all the judges and most of the lawyers whose opinions were delivered by their feet as they scurried away from this lethal paradox, and from the Inns of Court.

  Cooke could have chosen to leave town at any time in the past few days, as whispers that he might be appointed to prosecute began to reach the Inn. He felt a crippling sense of his own unworthiness: he was not one of the ‘great lawyers’, either in rank or birth or the size of his practice. He was consumed not with fear but by self-doubt, that one of the lowliest barristers would be chosen for such an awesome task. But this appointment, like everything else that happened to him, was a manifestation of divine will: his very obscurity, he reasoned, would in some way serve God’s purpose.

  John Cooke was forty. He was highly respected by younger lawyers for his legal knowledge, his wisdom and the extent of his independence from the familiar circles of patronage and power. He was lacking in social stature and family wealth, being the son of a poor-to-do Leicester tenant farmer who had risked bankruptcy to support his education at Oxford and the Inns of Court. The youthful barrister, unable at first to afford chambers in London, had taken employment in Ireland with Thomas Wentworth’s administration, earning enough to take a continental tour and a spiritual semester with the Calvinists of Geneva, before setting up practice at Gray’s Inn. He soon displayed a quality rare in this period – integrity. He had taken up causes that were morally right but politically incorrect, and had damaged his career.

  What made Cooke unique – a man beyond his time – were the social and legal reform ideas that he had begun to express, in booklets that were sold from the stalls in St Paul’s churchyard and around the law courts of Westminster Hall. These tracts were visionary to a degree his contemporaries could scarcely envision: he argued for the abolition of the death sentence other than for murder and treason; the end of imprisonment for debt; the abolition of Latin in the courts and many other reforms that did not come about for centuries. He was the first to claim that poverty was a major cause of crime (so offenders who acted from hunger and desperation should be put on probation) and the first to suggest that the state should provide a national health service and a system of legal aid for the poor. He urged barristers to work pro bono (free of charge) in 10 per cent of their cases. These ideas were not calculated to endear Cooke to the leaders of his profession, much less to the many pettifogging lawyers described by popular pamphleteers, accurately enough, as ‘vipers and caterpillars of the Commonwealth’. They were outraged when Cooke urged Parliament to set limits to their fees, by passing a statute upon which self-interested MPs – namely lawyers – must not be allowed to vote. This was the ultimate insult: for his mercenary colleagues, Cooke was a cuckoo in their nests, threatening their nest-eggs.

  In short, John Cooke was respected but not trusted. He tended to do and say what he believed was right, rather than what was popular or politic or likely
to ingratiate him with the prevailing power, be it the King or Parliament or a bench of judges. He would do nothing merely to please, unless it were to please God. So he was a risky choice to be entrusted to stage-manage an event as momentous and unprecedented as the trial of the King. He had not previously spoken out in favour of a trial, and indeed at a dinner the previous week he had loudly and succinctly expressed a view on ‘Pride’s Purge’ and the political and military factions that were jockeying for power: ‘I think they are all mad.’ His appointment as ‘Solicitor-General of the Commonwealth’ – a job that came with his acceptance of the brief – was a measure of Parliament’s desperation, as more senior and more reliable barristers ran for cover.

  There was one safeguard. As Solicitor-General, Cooke would be responsible for collecting the evidence and writing the legal arguments, but would not have a leading, or even speaking, part in the trial itself. The Attorney-General, William Steele, would sign the all-important charge against the King, and would be the prosecutor in the public eye, harrying Charles Stuart to conviction and perhaps to a sentence of death. Steele also had chambers in Gray’s Inn, where the messenger called first to deliver the leading brief. It must have seemed, to the parliamentary committee which made it, a sensible arrangement – Cooke would be a learned and zealous junior, complementing the forensic skill of Steele, who had proved a ‘safe pair of hands’ in the courtroom. That was before Steele sent a message to the court, claiming that he was seriously ill.

  By this stroke of providence, John Cooke came to lead the prosecution. It was by now but a week before the trial. Its success would have to depend on Cooke, who would have the task of persuading the court – and, more importantly, the world – that neither divine right nor sovereign immunity permitted a head of state to enjoy impunity after oppressing his own people. The word ‘impunity’ in its modern sense, which describes the freedom that tyrants should never have to live happily ever after their tyranny, enters history in Cooke’s brief. The parchment, scored in the elegant sloped hand of a parliamentary clerk, instructed the counsel to appear before this new High Court of Justice, established

  To the end that no chief officer or magistrate may hereafter presume traitorously or maliciously to imagine or contrive the enslaving or destroying of the English nation, and expect impunity for so doing . . .

  In this final flourish is found the principle that justified the trial of Charles I in the eyes of weary soldiers and their supporters in Parliament and the city. It was a means of deterring future tyrants from maltreating their own people. It was designed to end the impunity which Machiavelli had argued in The Prince should always protect rulers from the consequences of their crimes. When General Pinochet was denied impunity, 350 years later, this prosecution theory appeared very new and very radical: in 1649 it was so far before its time that later historians have failed to comprehend Cooke’s purpose. They treat the trial as Cromwell’s elaborate exercise in realpolitik – a ‘cruel necessity’. But the King could have been removed much more conveniently and quietly, by poison or court-martial or by having him shot while trying to escape. The first wonder of this trial was that it took place at all, and the second was how John Cooke, in a frantic fortnight, managed to locate the Achilles heel of sovereign impunity.

  The first civil war had begun in August 1642 when King Charles I raised his standard at Nottingham to attack the forces of Parliament. It ended almost four years later, when the King was ignominiously sold to Parliament by its Scottish allies. Thereafter, whilst a prisoner in his own palaces, he contrived to direct a second civil war which took the form of a series of revolts, riots and incendiary flare-ups throughout the spring and summer of 1648. These were painfully extinguished by General Fairfax and his deputy, Oliver Cromwell, but scarcely had the killing stopped than Charles began plotting a third war, in which Parliament’s New Model Army would be opposed by Scots (to whom he made secret promises) and by Irish loyalists, assisted by old cavaliers and fresh forces from Catholic allies in Europe. Yet so fundamental was monarchy to contemporary conceptions of government that the majority of the House of Commons – mainly Presbyterian MPs – naively proposed a power-sharing treaty with their untrustworthy King. For the army and its MP supporters, this was a certain recipe for a third civil war: so in early December, with Fairfax’s approval, Colonel Pride marched to Westminster and ‘purged’ the House of Commons of its appeasers, by refusing them entry. In Westminster over Christmas (a holiday uncelebrated by Puritans), the army and the ‘Rump’ of MPs left in Parliament began to plan an action never before imagined, in England or elsewhere: of putting the King on trial.

  The enormity of this exercise, in its place and time, cannot be overstated. It would, for a start, amount to treason, under a statute of 1351 (still in force today) which had remained in regular use. The offence was of wide definition: ‘compassing or imagining’ the death of the monarch was punishable by public execution. For treacherous nobles, aristocrats and persons of breeding, death would come instantly and surgically, as the executioner’s axe severed the cervical vertebrae: the legs and abdomen would twitch reflexively as the assistant displayed the aristocratic head to the crowd, with the awesome cry ‘Behold – the head of a traitor’. For those of common birth, however, there was a torture as barbaric as the times could devise, known as ‘hanging, drawing and quartering’. The miscreant would be drawn on a hurdle, facing backwards, to the place of execution: he would be forced up a ladder, hung for a few moments to the jeers of the crowd, then cut down whilst still conscious. His penis and testicles would first be cut off, and dangled in his face. The executioner’s knife would deftly extract a few feet of bowel, which would be set alight by a torch, before his boggling eyes. Oblivion, in the stench and excruciating pain, was delayed as long as possible, and would be followed by cutting pieces off the carcass (‘quartering’) before it was dragged away behind the sledge: the severed head, arms, legs and torso would be boiled and preserved for exhibition on pikes at various public places in the city, pour encourager les autres. This obscene ritual was laid down in the law books: it was intended as the ultimate deterrent to any commoner who might think of deposing a king. It was the main reason why, on that afternoon of 10 January, the Inns of Court were so empty.

  When that brief arrived, did John Cooke have any precognition of his own torture by rope and knife? Did his father Isaac, a frail presence in the corner of his chamber, picture the horrible death of the son of whom he was so proud? His wife, Frances, knelt and prayed for his safety. Across the Gray’s Inn courtyard the Attorney-General was hiding under his bedcovers. At another chambers in the same Inn, the wife of John Bradshawe, the only English judge prepared to sit at the trial, was begging him to have nothing to do with it. To mollify her he had his hat lined with lead: it could deflect an assassin’s bullet, if not time’s arrow.

  Despite the danger and the entreaties from his friends, John Cooke showed no hesitation and took no precautions. Over the following days, as he prepared the evidence against the King, he became a marked man: death threats, hand-written, were slid under the door of his chamber and attached to stones thrown at his windows at night. He experienced, for the first time, the sting of British gutter journalism: the royalist news-sheets (called Mercuries) had been banned in the capital, but that served like all censorship only to encourage their circulation and the new Solicitor-General soon became a target for character assassination. There were plenty of real assassins in London as well: the long nights in this freezing January brought fogs that could camouflage any act of murder. Cooke came under siege from young barristers he had befriended or tutored, who besought him to have no part in the business. One of them, James Nutley, wept openly as he begged his mentor not to hazard his life and his professional standing. Cooke answered by reference to what his profession would later call the cab-rank rule: ‘I cannot avoid it. You see, they put it on me.’

  The trial of Charles I was a momentous event, and not only for Britain. After thirty year
s of continental war, the kingdoms of Europe had, by the Treaty of Westphalia in October 1648, given some guarantee of the rights of religious and ethnic minorities within their domains, but as sovereign states that would police themselves. It was fundamental to this treaty, the foundation of international law, that a prince could not be overthrown for violating the liberties of his own subjects. But the most important thing about the Treaty of Westphalia was that England was not party to it. Just a few months later, John Cooke devised a way of ending the impunity it guaranteed to sovereigns, crafting out of the common law and the law of nations and the Bible, a theory which could bring hereditary dictatorship to an end. This message, filtered through the philosophy of Locke and Montesquieu, provided inspiration for the French Revolution and the War of American Independence: we can see it now as the precursor of a much more recent development which began at Nuremberg, namely the use of criminal law to punish heads of state and political and military leaders for war crimes and crimes against humanity.

  Cooke’s charge began with a fundamental proposition: the King of England was not a person, but an office whose every occupant was entrusted with a limited power to govern ‘by and according to the laws of the land and not otherwise’. It had been with the criminal object of securing unlimited and tyrannical power that Charles I had levied war against Parliament and had set out to destroy the very people whose life and liberty he was obliged to preserve. To bring home his guilt for the crippling loss of English life on both sides in the war he had started in 1642, Cooke invoked the doctrine which is called, in modern war-crimes courts, ‘command responsibility’: