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Bar News - May 15, 2009

Book Review: The Tyrannicide Brief - John Cooke and the Capital Case against Charles I


Review by Thomas M. Hoban


Sovereign immunity? Try telling Charles I. On January 30, 1649, 10 days after being charged before Parliament, a mere three after being sentenced to death, Charles I, King of England, Scotland, and Ireland, was executed by an anonymous, masked axeman at Whitehall.


Geoffrey Robertson’s “The Tyrannicide Brief” focuses not on Charles or Parliament, but on Parliament’s chief prosecutor, John Cooke, forever after identified – vilified -- as one of the chief Regicides. Until then a well regarded, competent 40 year old lawyer, dutifully developing a name for himself, Cooke, not quite by happenstance, not quite by design, caught the prosecution brief on January 10th.­­­­. The more senior of his colleagues – those otherwise first in line -- had scuttled out of London in abject terror lest this particular prize be thrust upon them. Cooke stuck around, knowing/hoping/fearing it might fall to him.  It did.


And with it came the title “Solicitor General of the Commonwealth,” the most pivotal role not only in the most momentous trial in British (and by extension, American) legal history, but in modern human rights jurisprudence as well. In Robertson’s recounting, Cooke was no time serving cipher duly and dully raising up whatever rationales were needed by a Parliament bound and determined to rid itself forever of a vexatious king, niceties of right and wrong be damned. No, Cooke knew what he was about and law schools would do well to use Robertson’s riveting depiction of the trial as he follows Cooke’s developing arguments and the King’s futile attempts at refutation. High stakes, indeed. “Twelve Angry Men,” O. J. Simpson, and Court TV are trivial in comparison.


In Cooke, Robertson sees a seventeenth-century jurist who first applied what had to then been abstract, jurisprudential theories to the specific purpose of convicting Charles -- that there are “crimes against humanity,” that there are “higher laws’ constraining even the actions of a sovereign and for the violation of which that sovereign may be charged, punished even by death – theories which we today fancy as modern. In Cooke’s arguments against the king – the Tyrannicide Brief of his title – Robertson discerns the first application in British law of those theories which 300 years later would be used to justify the Nuremburg Trials after World War II as well as the International Criminal Court and European Court of Human Rights at The Hague. Based upon theories applied by Cooke against Charles, Augusto Pinochet has been charged, Radovan Karadzic awaits trial, Slobodan Milosevic has been convicted, and Axis authorities executed.


None of which did Cooke much good a decade later, in 1660, when the Commonwealth (by then The Protectorate) collapsed and Charles II, Charles I’s son, returned triumphantly from exile in France. One of fewer than 50 Commonwealth men exempted from the craven, politically expedient “Act of Free and General Pardon, Indemnity, and Oblivion,” Parliament’s pardon, Cooke now faced trial himself, as a Regicide. The outcome was never in doubt: the day following his trial and conviction, Cooke was hanged, disemboweled, drawn and quartered, his innards and privates fed to the dogs, his head severed and mounted in public disgrace. Pepys saw it, still on display, 10 days later.


Defending himself at his own trial, Cooke argued that in prosecuting Charles he had merely been discharging his professional duty as a lawyer: in representing his client, Parliament, as best he could, he was not being treasonous, had no personal animosity toward the king, and therefore bore no personal responsibility for the outcome. He was a lawyer doing his job by representing his client to the best of his ability. Robertson would have it that this theory, one which lawyers take for granted today, was first articulated by Cooke on October 13, 1660, as he quick-wittedly scrambled to speak in his own defense.


Biographies are shadow-puppet displays, their subjects looming larger in outline than history might warrant. No one person, no one thing, is sui generis, no legal theory spun out of whole cloth, no pamphlet printed which won’t find a ready audience prepared to believe – and pay for -- it. All this is true, and Cooke was no progenitor of modern jurisprudence. Regicide or tyrannicide was nothing new in seventeenth-century England – getting rid of despots or irksome kings was a lively issue (and practice) in Greece (Hipparchus), Rome (Julius Caesar), even England (Edward II). One can always find theories lying thick on the ground to justify extra-judicial assassination but Cooke applied theory to an actual case within the existing legal structure, turning an abstraction into a specific charge that English law required that this king should be executed at this time.


As Robertson explores Cooke’s pamphlets, briefs, letters, and decisions in the decades before and after Charles execution, it’s hard to argue with his conclusion that Cook has been unjustly overlooked, and not merely because of these two cases. They made his professional life, no doubt, and at both Cooke acquitted himself more than admirably. But Cooke also argued – in the mid seventeenth-century, mind -- for universal health care; for a lawyer’s obligation to take on any client regardless of his personal opinion of the merits; for open access to lawyers by all levels of society and, concomitantly, that a lawyer is duty bound to devote fully 10% of his time to what we today would call pro bono representation. Cooke’s advocacy of reforms in prison conditions, debtor treatment, and the legal system itself (he advocated abolishing the distinction between Law and Equity 200 years before it would be done) would serve to distinguish any legal career. Robertson succeeds in setting Cooke in context, in recognizing not merely the two signal cases of his career but the broader social vision he had of his profession.


Reading the lives of successful or famous lawyers does us all good, I suppose. It certainly makes us feel good, basking in their reflected glory, but we should be humbled as well, humbled to realize the horrible costs which dedication to the standards of our profession can bring as well as the long-term positive consequences which our professionalism can have. Where Robertson’s biography succeeds is in breathing life into a previously little-recognized figure, a lawyer whose dedication to his profession and to a now largely discredited cause, can only stir our admiration and respect.


Thomas M. Hoban is an attorney in Washington, DC and has been a member of the NH Bar since 1984.

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