The courage to condemn a king


The Tyrannicide Brief: The Story of the Man who sent Charles I to the Scaffold
By Geoffrey Robertson
Vintage Books, 2006
429 pages, $35 (pb)


"You shall be hung by the neck", declaimed the gleeful judge in 1660, "and being alive shall be cut down, and your privy members to be cut off, your entrails to be taken out of your body and (you living) the same to be burnt before your eyes, and your head to be cut off, your body to be divided into four quarters to be disposed of at the pleasure of the King's Majesty". John Cooke, son of a poor farmer who rose to become the solicitor-general of England during its republican days (1649-1660) and who prosecuted King Charles I in 1649 for war crimes, was to have a death, the grisliness of which would deter others from questioning the rule of monarchs.

In The Tyrannicide Brief, Geoffrey Robertson expertly hangs out the dirty legal linen of the "trial" of Cooke, "one of English history's most shameful episodes, white-washed by lawyers and ignored by historians", who prefer to dismiss Cooke as a "Puritan fanatic" and a "dodgy lawyer" prepared to do the dirty work of regicide (the execution of Charles I in the English Revolution). These caricatures of Cooke are so at odds with reality, says Robertson, and so politically poisoned, that a defence of this brave and principled barrister is long (three and a half centuries) overdue.

Oliver Cromwell, John Cooke and the other "regicides" of the English Revolution have had a perpetual bad press, initiated by a political show trial "of Stalinesque proportions" that conservative historians have portrayed as due punishment for the regicides. Even liberal wigs, like Australia's Justice Michael Kirby, says Robertson, have "genuflected to royalty", calling the trial of Charles I a "discreditable affair".

Robertson, initially inclined to accept this conventional wisdom, started digging in the official record and discovered a trial of the king that was "an oasis of justice and fairness" for its time, a time when any person charged with treason was routinely tortured into confession and put to death after a summary trial in which the defendant had virtually no legal rights. By contrast, it was the trial of the republicans that was discreditable. The defendants were locked up for months in plague-infested prisons, brought to the Old Bailey in leg-irons and shackles "to be viciously mocked and abused by the partisan judge who instructed carefully vetted royalist jurors to convict without bothering to leave the jury-box."

Cooke's humble origins were, unlike under monarchical rule, no barrier to ability during the English republic. Cooke was one of "the middling sort" (the new middle class of professionals and artisans) who were the social base of the revolution and its "commonwealth", where merit would reign over birth, and (limited) democracy over royal absolutism.

The king would have none of this subversive nonsense. To protect the principle of hereditary dictatorship, he had begun two horrendous civil wars (which killed one in 10 of all adult males in Britain). The victorious parliamentarian New Model Army and the "Rump" parliament, purged of its Presbyterian monarchist appeasers, finally put the king and his uncompromising absolutist ambitions on trial, not only as justice for the blood spilled but as deterrence to future royal tyrants.

Parliament's brief to prosecute the king landed in the hands of Cooke after nearly all of his professional peers, quaking at the prospect of revenge from royalist assassins or a future royalist regime, took flight or, like the attorney-general, became suddenly and conveniently ill. All those mutilated bodies of others accused of treason against the king had acted, as intended, pour encourager les autres (as an example to others).

Thus Cooke was made Solicitor-General, leading the prosecution of the king. He was a good choice. Though not a democrat ("wise men must govern the ignorant", he believed), and though sharing contemporary prejudices against Catholics and the Irish, Cooke had a platform of visionary social reform — a national health service, legal aid for the poor, an end to imprisonment for poverty-related debt or theft, and a cap to be set on the earnings of barristers who were to work pro bono in 10% of their cases. Cooke was determined to reform a legal system in which, writes Robertson, "the rich had nothing to fear from the law and the poor could not afford the price of justice". The political rule of one over many, Cooke believed, was an affront to both reason and God.

Cooke was determined that a just legal system should mean a fair trial for Charles, protecting the legal rights of the defendant. Charles's trial was an open, public trial, not a closed door, summary court martial. Nor was the king to be despatched through a convenient assassination (Charles was guarded against republican assassins as much as would-be rescuers). A fair legal process would instead deliver a democratic verdict, establishing a popular precedent to end the criminal impunity of heads of state.

The opportunity of such a trial, however, was sabotaged by Charles's refusal to recognise the legitimacy of the court, coupled with the prosecution's failure to take Charles's no plea as a plea of not guilty (as is done today). So Cooke's carefully marshalled evidence of Charles's war crimes was neutered whilst the jury, who had previously not entertained execution, resolved on the king's death, swayed by Charles's haughty comment to his guard that he regretted nothing and was willing to shed more blood.

After the king's execution, the new republic then formalised the abolition of the monarchy. The electoral franchise was extended to all financially independent adult males, an advance on the narrow landed property franchise of the old parliament although far short of universal suffrage. Cooke's proposals for reform of the English legal system fared less well, however, in the face of the privileged lawyers who made up half the House of Commons' MPs.

Things got worse for Cooke, after a royalist counter-revolution led by the landed nobility. This ended the republic, which had already been weakened by Cromwell's turn against the radical wing of the revolution, and the resulting disappointment of the masses' hopes for profound social change. The new king (Charles's son, Charles II) had resolved never to forgive Cooke, who was arrested in 1660 for treason. Other, fair-weather republicans were spared by an act of a newly royalist parliament if they had the money for bribes or the right class connections, and if they had disposable principles. Cooke had none of these.

The monarchist state needed a show trial, literally to tear to pieces those who had mortally challenged Charles I. A fair trial for Cooke (and two dozen other prominent republicans) was never a prospect. A rigged jury of ultra-royalists (half of them republican turncoats who were doubly keen to demonstrate their new royalist fealty) hardly needed the judge's thinly veiled threat to the jurors that if they failed to convict Cooke and the others of treason they too would be guilty of treason. The jury summarily delivered Cooke and his co-defendants to the executioner, who was present in the courtroom, hangman's noose draped around his shoulders and his tunic flecked with blood from disemboweling and quartering his still-living victims. Cooke's days ended with his heart and genitals being fed to stray dogs, and his head and four quarters publicly displayed in London.

Compared to Cooke's "trial", says Robertson, the trial of Charles represented ideological progress against tyranny, yet orthodox history focuses censoriously on the king's execution accompanied by amnesia about the later, and vastly more barbaric, persecution of the republicans.

Cooke's lasting legacy, argues Robertson, is the use of criminal law to end the impunity of modern heads of state such as Pinochet, Hussein and Milosevic (it seems that Robertson spares Bush and Blair because they restrict their mass murder to foreigners). Robertson's vindication of Cooke is justified in an age when, as Robertson sarcastically notes, barristers like Cooke are in short supply, where "former political firebrands kiss the monarch's hand on taking their oath of cabinet office" and when "monarchy still exerts its vainglorious magic, from Eurostarry princesses to feudal Saudi royals". Robertson's vibrant narrative and demystification of the legal context helps to strip away the mystique of monarchy and to indict sceptered and suited state criminals for their crimes of tyranny.

From Green Left Weekly, June 21 2006.
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