“The Tyrannicide Brief”: an extract

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Much has been written about the 1649 trial of England’s king Charles I. Little has been made of John Cooke, the first man in legal history to conceive a charge of tyranny against a monarch. In The Tyrannicide Brief: The Story of the Man who sent Charles I to the Scaffold , Geoffrey Robertson argues that his fellow lawyer’s exclusion from the history books is to miss a vital moment in the development of modern democracy.

John Cooke was a pioneering legal thinker in proposing ideas such as the right to silence, the replacement of Latin with English in court proceedings, and the connection between poverty and crime – ideas that were at the time (and even in some quarters today) considered radical and dangerous.

Also in openDemocracy:

Geoffrey Robertson talks to Charlie Devereux about John Cooke's relevance to the era of Slobodan Milosevic and Saddam Hussein

But Geoffrey Robertson, as the following extract from his book makes clear, sees his greatest contribution as a forward-thinking understanding that even the supreme power in a polity is subject to the law and to justice. The relevance to today’s legal proceedings involving Saddam Hussein, Slobodan Milosevic and other modern day tyrants, and to the International Criminal Court, is evident.

John Cooke paid for his role in the trial with his life – a vitriolic vengeance taken upon him when the monarchy was restored in 1660 – but Geoffrey Robertson’s book ensures that, in this case at least, history is not always written by the victors.

The following is an extract from Geoffrey Robertson’s The Tyrannicide Brief : The Story of the Man who sent Charles I to the Scaffold (Chatto & Windus, 2005):

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 of 1649. This mental blockage about giving credit or celebrity to the “Commonwealthsman” 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. Charles Taylor and General Pinochet continue to assert 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.

A sight with no parallel

The trial of Charles I was a momentous event, and not only for Britain. After thirty years 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’:

By which it appears that he, the said Charles Stuart, has been and is the occasioner, author and continuer of the said unnatural, cruel and bloody wars and therefore guilty of all the treasons, murders, rapines, burnings, spoils, desolations, damages and mischiefs to the nation acted and committed in the said wars or occasioned thereby.

The charges against Milosevic at The Hague convey the same idea – the responsibility of the commander for all the natural and probable consequences of his commands. Cooke alleged not only high treason, but ‘other High Crimes’, which he spelled out in the final paragraph: Charles Stuart he impeached as ‘a tyrant, traitor, murderer and public and implacable enemy to the Commonwealth of England’. In a nutshell, what the Solicitor–General had created was a new offence, one that could condemn most of the crowned heads of Europe at the time, and many of the dictators and undemocratic rulers who would come to power in the nations of the world in the following centuries. He had made tyranny a crime.

On Saturday 20 January – only 10 days after accepting the brief – Cooke signed the charge, the document that was to seal the King’s fate and his own. That afternoon, sixty black–gowned judges processed into the Great Hall at Westminster, for the public opening of the trial. Accompanied by 120 soldiers with long pikes, they presented a powerful tableau to thousands of citizens who crammed into the public galleries. Preceded by a clerk carrying the sword of state, Judge Bradshaw made his way to centre–stage where his crimson velvet chair had been placed, behind a desk on which a crimson cushion bore the parliamentary mace. The judges sat behind him, on benches hung with scarlet: the chair in which Charles would sit was directly in front of them. The prosecutor – John Cooke – stood immediately to the right of the King’s chair. The proceedings began with the deep–voiced ushers shouting the traditional ‘Oyez’ still heard at the opening of every English criminal court:

Oyez, oyez, oyez. All manner of persons who have any business in this Court, draw near and give your attendance.

The assembly waited to see a sight that had no parallel: the bringing of a king to a place of public justice. There were some – the soldiers in particular – whose thoughts were of retribution against the man they held responsible for the blood of fallen comrades, but most of the crowd would have had in mind the set of traditional beliefs about the monarch’s ‘divine majesty’. When Charles did enter, it was with a certain dignity. The sergeant–at–arms, mace held aloft, escorted him towards his centre–stage seat. He was not in chains, not under obvious restraint: the halberdiers who followed him might have been his own retinue. This was no ordinary prisoner, as his behaviour immediately showed: resting upon his familiar silver–tipped cane, he looked with unblinking sternness at the judges, displaying his contempt for the court by refusing to remove his hat. He was, for those few moments, still a king in command.

‘Charles Stuart, King of England …’ Judge Bradshawe’s words were respectful, his tone measured and polite: ‘the Commons of England have constituted this High Court of Justice before which you are now brought, and you are to hear your charge, after which the Court will proceed.

This was John Cooke’s cue. He brandished the parchment upon which the charge had been written – the charge that he had signed as Solicitor–General for the Commonwealth. ‘My Lord President,’ he began – at which point he felt a sharp tap on his shoulder. The King had hit the prosecutor with his cane, a walking staff with an ornate silver tip. ‘Hold,’ Charles commanded, and rose to speak, poking the low–bred lawyer again with his cane to emphasise his command to give way.

If Cooke had yielded, the entire enterprise would have faltered. But the barrister ignored the King, and continued to address the court: ‘My Lord President,’ he went on, ‘according to an order of this High court directed to me for that purpose …’ At this point, he suffered a third blow from the cane, a palpable hit, hard enough to dislodge its silver tip, which rolled down the counsel’s gown and clattered to the floor between the two men. Their eyes met, and the King nodded for Cooke to bend and pick it up. But the barrister did not blink, much less stoop. Ignoring the little man beside him at the bar rail he continued, coldly and precisely:

‘I do, in the name and on behalf of the people of England, exhibit and bring into this Court a charge of high treason and other high crimes whereof I do accuse Charles Stuart, King of England, here present.’

Under Cooke’s wounding words, the King seemed to shrink, into a small cranky prisoner with dirty hair. In that character, slowly and painfully, under the astonished gaze of his people, the King stooped to pick up the silver tip from the floor at Cooke’s feet. There were gasps: Cooke paused for the significance of the moment to sink in before handing the indictment to the court clerk, Andrew Broughton, for its formal reading.

The symbolism of this incident was plain to all. The King, the divine majesty, had bowed, powerless before the majesty of human law. In an age when everyone was on the look–out for signs and portents, this was taken as the direst of signals. The King told his friends that he believed it a bad omen, and the news–sheets reported how Charles had been forced to stoop to retrieve the silver tip: ‘This it is conceived will be very ominous.’ Few had really thought this unprecedented public spectacle would be taken seriously, but Cooke’s resolve at its outset transformed expectations. It now had the appearance of a real trial in which the monarch would have no special favours. ‘Be ye ever so high, the law is above you’ had been an empty aphorism for those who had tried to bring the Stuart kings to the bar or the battlefield: this defining historical moment gave it meaning. It was the moment for which John Cooke would never be forgiven.