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Critics' Corner
16 September, 2005  
The Tyrannicide Brief

He may be the plummiest lad to have emerged from Epping Boys High but Lord Robbo has produced a terrific book that puts the seventeenth century barrister John Cooke at the centre of so much of what we love today


By Geoffrey Robertson

(Chatto & Windus, 429 pages)

Reviewed by Andrew Clark*

imageIt was a cold London night and the Thames was frozen over. Parliament’s messenger alighted from his horse at Gray’s, one of the lawyers’ Inns of Court. His arrival had been anticipated by a veritable barristers’ diaspora; all were keen to avoid the lethal consequences of his message.

All, that is, except John Cooke, a barrister of humble background. As Geoffrey Robertson describes the scene, he was puffing at his pipe in his smoky chambers when parliament’s messenger delivered a parchment brief bearing Cooke’s name: it was to “prepare and prosecute the charge against the King”.

This was the formal start to one of the most extraordinary and significant episodes in common law history – the trial of King Charles 1 in 1649. He was charged with being a tyrant; hence the title of Robertson’s book, The Tyrannicide Brief. The lead-up, and the trial itself, in turn led to many of the staples of the common law, including the cab rank rule, legal aid, an independent judiciary, and the first forays into international law.

The trial resulted from nearly 25 years of power struggle between Charles 1 and parliament. The former insisted on an absolutist interpretation of the ancient doctrine of the divine right of kings, with the monarch entitled to unilaterally seize property, levy taxes, wage war, prosecute political enemies in rigged courts, and generally use the legal system as his personal plaything. As Shakespeare wrote in Pericles:

Kings are earth’s gods; in vice their law’s their will
And if Jove stray, who dares say, Jove doth ill?

Building on four centuries of accumulated rights since the signing of the Magna Carta, an increasingly assertive parliament, which counted many Puritans among its members, was exerting authority on issues ranging from raising taxes to ensuring judicial independence. Most crucially, it wanted a less centralised religious order, including abolition of monarch-appointed bishops.

After four years of constant tussles, Charles prorogued parliament in 1629 and it did not meet again until 1640. Two years of increasingly dangerous enmity ensued, climaxing in the King raising his standard outside Nottingham, triggering seven years of on-off civil war.

This was the period of such pitched battles as Naseby and Marston Moor, when parliament’s New Model Army, organised and disciplined under General Tom Fairfax and the remarkable Oliver Cromwell, gave the King’s Cavaliers a right royal touch-up.

As Cromwell’s Roundheads routed the King’s forces, parliament split. MPs with allegiance to established denominations like the Presbyterians favoured continuing negotiations with the King. The Independents and Puritans started pressing for his removal, reasoning that peace would never return until a King who insisted on untrammelled power was gone. Hastening the issue, the New Model Army’s stunning success on the battlefield gave it, and Fairfax and Cromwell, who was also an MP, extraordinary influence.

This magnificent fighting force was not just distinguished by its revolutionary training and tactics; it was also infused with a revolutionary democratic spirit. The shedding of so much blood of the sons of humble farmers, stonemasons, blacksmiths and carpenters, unleashed fierce resentment against the monarch and pressure for his removal.

Direct military intervention in parliament, including the prevention of moderate MPs from voting, decided the matter. It was, Robertson wrote, a very English coup.

How was the King’s ouster to be achieved? On the face of it, there was no problem. Charles 1 was already in custody, and the accepted practice in that period was that the head of the victorious forces was entitled to separate the head from the body of the leader of the vanquished.

Informing advocacy for a trial, however, was the notion that England was on the verge of profound constitutional change, where parliament would be the supreme lawmaker, and that a public trial of the monarch would legitimise that change. But that was not before the logical consequence of a trial-generated death sentence for Charles 1 led to the short-run creation of a republic.

Robertson’s book covers the lead up to the civil war, the war itself, the 11-year inter-regnum, including four years of Cromwell’s protectorate, restoration of Charles 11 in 1660, Cooke’s treason trial and his grisly execution, and the aftermath.

Like a large Mongolian tent, it is a work marked by four structural posts – Charles 1’s trial, his execution, John Cooke’s trial, and his execution.

These set pieces reveal a barrister, author and legal historian at the height of his powers. There is an imperious quality in his writing, dismissing the contributions of such distinguished author-historians about the period as Simon Schama and Lady Antonia Fraser.

But no amount of catty asides about Robertson’s vanity can detract from the fact that this is a major and distinctive work of legal history.

Robertson’s brilliance as a legal advocate rests, in equal measure, on his intellectual acuity, sharply honed forensic skills, and his cultivated pommy theatricality, which includes the plummiest accent of any graduate of Sydney’s Epping Boys High. He fuses these qualities into compelling descriptions of the trials and executions. Such is the power of Robertson’s prose that the reader feels like a witness to history.

Far from tugging his forelock to the conventional wisdom of British historians that Charles was subjected to a Stalin-style show trial, Robertson argues that for its time his trial was relatively kosher.

This contrasts with the revenge-driven summary justice meted out to Cooke (pronounced, for some reason, Coke), followed by the legal execution that meant being hung, drawn and quartered. As the Americans would say, you don’t even want to go there.

Most important, The Tyrannicide Brief rescues Cooke from his up-to-now place in history as a calculating, chiselling regicide. Cooke was convinced his actions, including his role as prosecutor of Charles 1, were informed by Christian righteousness. He was also a radical. He saw a parliament elected on a more democratic franchise doing God’s work, unlike an absolute monarch, who was in a sense competing with the Almighty for His people’s affections.

He was an advocate of reducing legal costs, making court proceedings transparent and efficient; entrenching judicial independence, setting up a system of legal aid, institutionalising the cab rank principle for barristers, establishing a national health service, and parliament passing a Bill of Rights.

The credit for introducing these measures has been assigned by Royalty deferring historians to others and different times, including the so-called Glorious Revolution of 1688. But Robertson sees Cooke’s hand in many reforms, like the concept of refusing legal immunity for a ruler. This has provided the legal ballast for modern-day tyrannicide trials of figures like Serbian ruler Slobodan Milosevic.

Cooke emerges from these pages as a good, modest and brave man. He was, according to Edmund Ludlow, a leading Puritan parliamentarian and a colonel in the New Model Army:

”... 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.”

Not a bad wrap for a convicted regicide.

*Andrew Clark writes for The Australian Financial Review