Farewell Sovereignty

When I read for the English Bar in the 1960s, the legal history lecturer stopped when he reached 1649 and explained that he was now moving directly to 1660, because everything that had happened between the trial of the king and the restoration of the monarchy was a nullity. By this simple and efficient process John Cooke, the barrister who prosecuted Charles I, has been airbrushed from history, save by a handful of historians of the trial who have written him off as a hack. Geoffrey Robertson has set out to rescue him from the enormous disregard of posterity, and from the ignominy of his death in 1660 by hanging, drawing and quartering.

Robertson is a practising barrister and has served as the president of the Sierra Leone war crimes tribunal. He is also a media personality, a status which tends to sit uneasily with scholarship. But, if one forgives the unnecessary double entendre of its title and its sometimes excessively feisty prose, this is a scholarly book. To say scholarly is not, of course, to say impartial: writing as counsel for Cooke’s defence, Robertson launches some damaging salvos at dismissive historians. The worst of them by far is J.G. Muddiman, a passionate monarchist (and a descendant of Henry Muddiman, known to Pepys as ‘an arch-rogue’, first an apologist for the Rump Parliament and then one of the Restoration’s principal political witchhunters) who edited the trial of Charles I for the Notable British Trials series and whose treatment of Cooke is a farrago of prejudice and error.

Robertson’s purpose is twofold: to write the first biography of Cooke, and in doing so to vindicate the regicides, Cooke prominent among them, as precursors of modern international human rights law. This is not quite as far-fetched as it sounds. The crime of tyranny for which Charles was tried and executed is now, Robertson argues, recognised as an offence justiciable in every country’s courts. International law may meanwhile have substituted sovereign immunity for divine right, but human rights law has since 1946 gradually broken through this shield, placing the worst crimes of rulers against their people within the reach of justice and beyond impunity. It may have been, as Robertson says it was, the ruling of the House of Lords that Spain could extradite Pinochet on charges of torture which turned the tide of head-of-state immunity on which Pol Pot, Idi Amin and a good many other despots had managed to sail away to safety; but it should not be forgotten that Chile’s own legal system was already investigating charges against its former dictator. Robertson may not be right in his claim that Slobodan Milosevic is the first ruler since Charles I to stand trial before a full court for crimes against his own people (Jean-Bédel Bokassa was tried, convicted and sentenced to death in 1987 for treason against his own people, though he eventually walked free), but he is right to point out that both Milosevic and Saddam Hussein have confronted their tribunals with the same question as the Stuart monarch put to his: by what authority do you try me? The bald answer in each case has been the same: the authority of the power that has supplanted yours.

Robertson embarked on this project as a result of an evening in 1999 when the Australian judge Sir Michael Kirby delivered a lecture in the hall of Gray’s Inn to mark the 350th anniversary of Charles’s execution. Kirby, one of the common law’s great jurists, was not unsympathetic to the plight of the king. It was in the course of preparing a paper which he had been invited to give in response that Robertson realised that, although Cooke had been a member of Gray’s Inn and had been appointed solicitor-general, the Inn had no portrait and no memorial of him. In the unbroken series of portraits of law officers of the Crown on the walls of the attorney-general’s chambers in Buckingham Gate, and in the National Portrait Gallery, all that survives is a single, almost certainly posthumous, stage-villain caricature. Robertson fixes the evening in Gray’s Inn as the book’s moment of conception. I wonder if he also recalls, as I do, the moment of silence and the muted applause which followed his account of how savagely the regicides were treated by comparison with the king. For it is more than a political scientist’s conceit that the English Civil War, like the American one, is not yet over. In 1967, when the High Court for the first time asserted a measure of judicial control over the exercise by ministers of the prerogative power of the Crown, one of the judges pointed out that command of the prerogative was the last disputed prize of the constitutional conflict of the 17th century. In 1993, holding that ministers who defied court orders were guilty of contempt, one of the law lords commented that the government’s case that ministers enjoyed a sovereign immunity from legal process would reverse the result of the Civil War.

Absent the carapace of divine right, there was even by the standards of his own day a serious case for Charles I to answer. When Parliament in 1642 had refused to bend to his demands he had levied war on his own state and people. After a brief peace, he had done it again in 1648. To what extent his trial and execution early the following year were intended to appease the strong radical wing of the army, and how far they were demanded by the challenge which a living ex-monarch would offer to a sovereign parliament, can be debated; but as late as 1648 little of the radical agitation sought more than a constitutional monarchy. The Souldiers Catechisme, first published in 1644 and still circulating widely, began: ‘I fight to recover the King out of the hands of a Popish Malignant Company.’ At Putney in the winter of 1647, Cromwell had repudiated Thomas Harrison’s demand that the king be put on trial. But whatever its motivation – and there is no need to fasten on any single motive – the eventual execution enabled Cromwell and Ireton to stamp out the movement for democracy in the army and to consolidate the power of a parliament of property owners. On the same day in May 1649 as Cromwell’s firing squad executed the leaders of the Leveller mutiny at Burford, his council of state made it a treasonable offence to accuse the government of tyranny. By the summer of 1649 the sun had set both for monarchists and for radicals.

Of course, the indictment of the king was in one sense victors’ justice. If Charles had won the Civil War it would have been Cromwell and his generals whose heads sat on the gates of London – as, in the aftermath of the Restoration, their exhumed remains did. But to recognise this is not to accept that Charles was merely unlucky to be defeated. He had stood on divine right against the legitimacy of parliamentary government at the moment of English history when the pendulum was swinging ineluctably in the opposite direction. It was not the Bill of Rights of 1688 but Cromwell’s Instrument of Government of 1653, still lost in the official void three and a half centuries later, that first set out some of the foundational principles of a modern democracy: triennial parliaments (for a united state of England, Scotland and Ireland), not to be prorogued except by their own will; a non-hereditary Protector, empowered to legislate, tax and govern only with the consent of Parliament and to make war only on its advice; abolition of the established church, and religious toleration (except of ‘Popery and Prelacy’). But not then, or after 1660, or after 1688, did it come true.

There was no legal need to put Charles on trial at all. The law of war permitted the summary execution of enemy commanders, whatever their rank. Cromwell’s decision to place him on public trial before a court of law was a calculated demonstration that monarchy no longer carried either authority or impunity. But when, accordingly, the Rump Parliament voted to set up a court to try the king for treason, the exodus began. The chief justices of the central courts made their excuses. The outsize High Court of Justice eventually set up by Parliament in January 1649 appointed John Bradshawe, the chief justice of Chester, as its lord president. Cooke was appointed solicitor-general to assist the attorney-general, William Steele, in the prosecution; but Steele became suddenly ‘very sick’ when the prosecution brief was ready to be delivered. Cooke and Bradshawe, both of them nervously aware of what they were undertaking, stayed the course; and so it was that the first ever brief to prosecute a monarch for tyranny before a court of law was delivered to Cooke’s chambers in Gray’s Inn.

The indictment which Cooke drafted began with the assertion that the king had been ‘trusted with a limited power to govern by and according to the laws of the land and not otherwise’ – a proposition which had enraged Charles’s father when Sir Edward Coke, one of his chief justices, had advanced it early in the century. It concluded with the impeachment of Charles ‘as a tyrant, traitor, murderer and a public and implacable enemy to the Commonwealth of England’. Westminster Hall was cleared of its partitions, and of the scriveners and booksellers, to make a single huge courtroom. There was no opportunity for Cooke to cross-examine Charles: accused persons were not allowed to give evidence. But in the repeated exchanges between Charles and Bradshawe, conducted on both sides with dignity and reasonable civility, the king never abandoned his claim to legal invulnerability and therefore never offered the court a compromise, which it would almost certainly have embraced. Nevertheless, rather than treat the king’s refusal to plead as an admission of guilt, the court required Cooke to call more than thirty witnesses, many of them former royalist soldiers, to prove crimes against civilians and prisoners committed in Charles’s presence and on his orders. The sentence of death, when it came, was all but inevitable. What was not inevitable was the ruling that it be carried out by decapitation and not, as for ordinary traitors, by hanging, drawing and quartering. Both this and the tone of the trial under Bradshawe’s presidency, allied with the relative moderation of Cooke’s submissions to it, make an edifying contrast both with earlier state trials, such as that of Sir Walter Raleigh, and with the sanguinary revenge which followed the Restoration.

Cooke, who was born in 1608 into a modest Leicestershire farming family and had established a practice at the Bar by hard work and ability (his clients included Fairfax and Lilburne), can be tracked not only through the trial of the king and other recorded court appearances but through the pamphlets which he wrote and which found their way, with thousands of others, into the indefatigable George Thomason’s collection. Robertson is not alone in setting store by these. Donald Veall, in his seminal survey of the legal pamphlets in the Thomason Tracts, The Popular Movement for Law Reform 1640-60, singled out Cooke as one of the most lucid and persuasive of the law reformers writing at and after the climax of the war. Even if he had never prosecuted the king, Cooke’s writings would have merited a study.

Unlike the radicals of the Civil War, Cooke, a devout Christian, was a believer in law and in property. He was not, he wrote, ‘an enemy to great estates. I am not of their opinion that drive at a parity, to have all men alike, tis but a Utopian fiction’ – and he cited scripture to remind his readers that the poor were always with us. But he was caught up, like the radicals, in the oversetting of the social order and, like them, found himself thinking the unthinkable. He was ashamed of the venality of his profession, but rather than adopt the Leveller demand that people should put their own case to the courts, he urged that lawyers should accept only what their clients could afford, even if it was little or nothing. He supported the radicals’ demand for the abolition of jail for debt – something that was not achieved for another three centuries. Veall reckons that Cooke was also the first person to propose a public land register. A closed land register for England and Wales was eventually established in 1862; it was not opened to the public until 1990; and registration is still not obligatory. Cooke also, and again innovatively, wanted all deeds and contracts of any great value to be registered there and to be void if they were not. He wanted every accused person who was prosecuted by a lawyer, or on a capital charge, to have the right to a defence advocate and the right to call witnesses. But he was opposed to the quashing of indictments on technicalities, and he denounced the benefit of clergy, pointing out that the offence of an educated man who could read the neck verse (meaning he would be branded on the hand and not hanged) was if anything graver than that of one who could not. Like the Diggers’ spokesman Gerrard Winstanley, Cooke saw the roots of theft in poverty; but where Winstanley made it an argument against property, Cooke made it an argument for leniency in sentencing.

In 1650, Cooke was posted to Ireland, initially as chief justice of Munster, then as a judge of the Upper Bench. Within a few years he was able to report to Parliament a series of reforms he had pushed through: he had taken his court out on circuit, had cut the number of court officials and the fees they and the lawyers were allowed to charge, and – most remarkably – had empowered his courts to administer law and equity together, something not done in England until the late 19th century. His petition to the Commons drew a contrast with England, ‘where poor illiterate men were hanged for stealing corn to feed a starving family; where men with estates or titles would laugh at their creditors and poor men be locked up for the rest of their lives for incurring debts they could never pay from prison’. What Cooke imagined was going on under his nose in Ireland one can only guess. In any event, although Sir Matthew Hale’s law reform committee adopted some of his proposals, the bloc of barrister MPs made sure that nothing came of them.

The Act of Oblivion of 1660, by which the necks of the many vicars of Bray were saved, spelled death for 51 of the regicides, Cooke among them. (Of those who escaped to Protestant Europe or to New England, the descendants of at least three – Colonel Hewson, Colonel Goffe and the lawyer William Saye – were in the audience at Gray’s Inn that evening in 1999.) Bradshawe by then had died. Cooke was not taken in by the indication in the restored king’s proclamation that any who surrendered would be pardoned: a number who turned themselves in were executed. He waited until he was arrested, but refused to answer any questions on his examination before the recorder of Dublin. He was brought back to the Tower to await a perfunctory trial and its inevitable outcome, which he did with devout fortitude.

Robertson claims too much when he credits Cooke, first in his courtroom defence of John Lilburne, then on his own arrest, with introducing the right of silence into the common law. The supposed right, which developed in the early canon law, had by Cooke’s time acquired a mythological status: widely believed in, respected in the ordinary run of cases but ignored in favour of torture when anything serious was at stake. Cooke’s fate, however, was by the time of his arrest so firmly sealed that there was little point in pressing his interrogation. Nor, I think, could Robertson make good his suggestion that Bradshawe was breaking new ground, in anticipation of Locke and Rousseau, when he said to Charles: ‘There is a contract and bargain made between the king and his people . . . The one tie, the one bond, is the bond of protection that is due from the sovereign; the other is the bond of subjection that is due from the subject. Sir, if this bond be once broken, farewell sovereignty.’ This embryonic notion of constitutional monarchy, looking – through a reluctantly commercial metaphor – for middle ground between traditional liberties and government by divine right, was by 1649 a commonplace of political theory. What was novel was Bradshawe’s pointing out to a captive king the consequence when it was the monarch who broke the contract: ‘Farewell sovereignty.’