The Prosecution of a Tyrant:
Charles I and John Cooke

By Charles Matthews
San Jose Mercury News, 2005

If the title “The Tyrannicide Brief” makes you think of Robert Ludlum and John Grisham, that’s probably the point. This book has enough intrigue, deviousness in high places, and bloody violence for a thriller.

That it’s about an obscure Puritan lawyer who made the case against Charles I, resulting in the king’s loss of his head in 1649, doesn’t make this engagingly non-academic history any less readable, or any less relevant. Robertson’s aim is to show that his hero, John Cooke, mounted “the first modern argument against tyranny – based (as Bush and Blair might more credibly have based their case against Saddam Hussein) on a universal right to punish a tyrant who denies democracy and civil and religious liberty to his people.”

An Australian-born lawyer who now practices in London, Robertson has presided over the United Nations war crimes court in Sierra Leone, consulted on the case against the Chilean dictator Augusto Pinochet, and helped train Iraqi judges for the trial of Saddam. These cases – as well as the trial of Slobodan Milosevic and the Nuremberg prosecution of Nazi war criminals – are very much on Robertson’s mind as he tells the story of “the remarkable, indeed sensational, life and death of Britain’s most radical lawyer.”

John Cooke was born in 1608, the son of a farmer near Leicester, and was something of a prodigy: At 14, the youngest possible age, he entered Wadham College at Oxford, a college that had been endowed specifically for “poor and needy scholars.” He studied the law at Gray’s Inn and was admitted to the bar in 1631 when he was 23.

Cooke grew disillusioned with the English legal system’s corruption and inequity. In 1646 he published a pamphlet, “The Vindication of the Professors and Profession of the Law,” in which he criticized everything from the use of Norman French in legal documents to the fact that defendants were not allowed to be represented by an attorney, even in capital cases. He also attacked “benefit of clergy,” the practice of giving lesser sentences to defendants who could read than to those who were illiterate: “It is a greater offence for a scholar, who knows his duty and the danger of breaking the law, to offend than an illiterate man who knows nothing in comparison,” Cooke argued.

In 1646 he persuaded the House of Lords to overturn the conviction of John Lilburne, who had been sentenced to prison in 1638 by Charles I’s infamous Star Chamber. Lilburne had been charged with sedition, but he was punished for refusing to answer the court’s questions. In defending Lilburne, Cooke argued that it was “contrary to the laws of nature and the Kingdom for any man to be his own accuser.” Cooke’s defense helped establish protection against self-incrimination as a fundamental legal right, reflected in the U.S. Constitution’s Fifth Amendment and in the Miranda warning’s “You have the right to remain silent.”

Cooke’s reformist ideas were welcomed by those battling Charles I in the civil wars that raged in England during the 1640s, and they helped make him a logical choice to head the prosecution when the king was brought to trial in 1649.

There was some question whether a king could be put on trial. The right to be judged by one’s peers was established by Magna Carta, Robertson notes, “but – Catch 22 – a king could not, by definition, have any peers.” Cooke, like many other Puritans, found the resolution to this paradox in the Bible, specifically in the first book of Samuel, in which God warns the Israelites against setting up an earthly king. Robertson comments, “The Puritan conviction that the institution of monarchy was antipathetic to God provided the moral force which united with the dictates of human reason to turn the King’s trial into the event that established a republic.” Cooke drafted a charge that impeached “the said Charles Stuart as a tyrant, traitor, murderer and a public and implacable enemy to the Commonwealth of England.”

Charles I, of course, was having none of it. When Cooke began to present his case at the trial, the king whacked him with his cane hard enough to knock off the cane’s silver tip. The king motioned for Cooke to pick it up, and when he didn’t, the king himself bent over and retrieved it. The monarch stooping before the farmer’s son stuck with the royalists as an instance of unforgivable lèse majesté. “It was the moment for which Cooke could never be forgiven,” Robertson says.

With the restoration in 1660 Cooke suffered the terrible fate of the regicides – he was drawn and quartered. First he was hanged, and cut down while still alive; his genitals were sliced off; his intestines were yanked out with red-hot irons thrust into his anus; his still-beating heart was cut from his chest; finally he was beheaded and his body cut into four pieces. All of this while the mob howled. (The founders of the U.S.A. would have been theoretically subject to this punishment if the American Revolution had failed; Benjamin Franklin’s famous warning to his associates that they should hang together or they might hang separately really only describes a fraction of their potential fate. Drawing and quartering was used in England against traitors until the early 1780s.)

Robertson’s argument is not only that Cooke didn’t deserve this grisly, torturous death, but also that he didn’t deserve to become an obscure figure, one whom other historians have either ignored or dismissed as “a man of no particular reputation” and even as “a hack lawyer from Leicestershire.” This is the first full-length biography of Cooke, whom Robertson sees as a signal figure in the evolution of the law, and a pioneer in what is still largely uncharted territory: the prosecution of tyrants.

Robertson makes his case well, building on his knowledge of legal history, but also infusing the book with a casual, colloquial style that adds to its readability. He observes, for example, that Cooke married his first wife in the same church where Samuel Pepys would meet his: “Post-sermon socializing was a form of speed-dating for the devout.” He makes Cooke, whom he calls a “streetwise practitioner,” into an appealing figure, whose ideas and achievements resonate with contemporary concerns about justice and democracy. He also gives us a tragic hero – a man whose intelligence and devotion to fairness can’t save him from being swept up by the tornado of revolution.