The Tyrannicide Brief

by Geoffrey Robertson

  Parliament had begun the great work of making the justice system more just in 1642, when it removed the King’s power to dismiss judges and abolished Star Chamber, his cruel prerogative court. But the exigencies of fighting the civil war had occupied the Long Parliament’s legislative time until the glorious summer of 1646, when after the King surrendered to the Scots it seemed at last that peace was at hand. That was when the demands began in earnest to rid the commonwealth of its ‘caterpillars’ and its ‘pettifoggers’ and clean out its augean stables – invariably identified as the courts in Westminster Hall. There have been lawyer jokes from time immemorial, generally about the profession’s greed or smugness or tendency to ‘strain after a gnat and swallow a camel’. Now, these post-war pamphlets reminded readers of St Luke’s gospel, where Jesus Christ embraced lepers and tax collectors, but drew the line at lawyers: ‘Woe unto you also, ye lawyers! for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers . . . ye have taken away the key of knowledge.’5

  In England in the 1640s, there was – as Cooke was first to admit – ample cause for public antipathy. The number of lawyers had increased dramatically: in 1560 there was one attorney for every 20,000 citizens, but in 1640 there was one for every 2,500 – roughly the proportion today.6 This proliferation had not been permitted to bring about competition so as to reduce fees: the Inns of Court had jealously guarded their monopoly. Many judges, and almost all court officials, were on the take (the latter were badly paid, and their acceptance of bribes saved public funds). The elite barrister rank of sergeant (similar to modern Queen’s Counsel) was open to purchase.7 A handful of barristers who were judicial favourites monopolised the practice in particular courts. Severe delays were endemic in all civil actions. Many of the judgments were incomprehensible – most of the statutes and the law reports had, since the Conquest, been written in an archaic Norman French, which meant that law had become the preserve of those who could read it. This was not merely a means of entrenching a professional monopoly: as a measure of class stability, the Privy Council had been concerned to keep the public in ignorance of the law, lest they be tempted to take it into their own hands. Judges assisted by delivering decisions in pig-Latin, often to cloak their pig-ignorance. The ‘common law’ – so called because it was common throughout the realm – included Magna Carta, statutory principles and judicial decisions. It was a crazy jumble of thousands of badly reported precedents, reduced to some order in textbooks by Littleton and Coke. Lawyers needed to train for seven years at the Inns in order to understand them.

  The criminal law was not so much severe as savage: in an age without a police force, crime could, it was thought, only be deterred by punishing grotesquely the few who were caught, by devices like disembowelling (for treason), burning (for heresy or witchcraft), branding with hot irons and ear slitting (for sedition); all who stole more than one shilling were hanged by the neck until dead. But those who were educated were allowed their first crime without penalty, through a device called ‘benefit of clergy’.8 Beneficiaries were branded on the thumb: prisoners were always called upon to hold up their hand for inspection before their trial could begin, to determine whether they were any longer eligible for ‘clergy’. There were occasional witch-hunting crazes, most notably after Sir Harbottle Grimstone, the Presbyterian magistrate and MP, authorised Matthew Hopkins to frighten confessions out of lonely or unbalanced old women. The procedure, laid down in a treatise of James I, was to search for ‘teats’ on which devilish ‘familiars’ (spirits in animal form) were believed to suck. In certain cases a prosecuting lawyer – always a married man – would examine the genitalia of the female suspect, and testify to finding (or not) a ‘devil’s hood’. The prisoner’s possession of a wart, haemorrhoid or prominent clitoris was thus regarded as scientific proof of daemonic possession, although in unenlightened villages the people preferred the old method of ‘swimming’ a suspected witch, who would be guilty if she floated (because water would reject those who denied their Christian baptism.) Only drowning was proof of innocence.

  The enforcement of debts began in most cases with the arrest of the debtor at the instance of his creditor – a procedure ripe for abuse, since debtors then became prisoners with insecure rights to bail. Prisoners who could afford to pay jailers might live well, but most were kept in filthy and insanitary courtyards where ‘gaol fever’ was so rife that they often spread the infection from the dock: judges plunged their noses into flower and herb bouquets (nosegays) in an effort to deflect the germs. Treason trials might be preceded by torture to extract confessions9 and defendants were not allowed to have counsel (on the pretext that the judge could be relied upon to look after their interests) other than to argue points of law. Defendants, invariably shackled in irons throughout trials that lasted no more than a few hours, were not permitted to cross-examine prosecution witnesses, although they might put questions in the form of comments on the evidence as it was given against them. There was no appeal, unless the trial judge decided to refer a point of law to a higher court.

  Before the civil war, judicial positions and administrative posts in the courts (which could be very lucrative) were sold to the highest bidder: bribery was common and Bacon, when Lord Chancellor, was alone in being caught out and forced to resign, although he suffered no other punishment.10 Corruption’s twin pillars, nepotism and favouritism, were much in evidence. Appointments were made only rarely upon merit – judges like Coke and Croke were exceptions. Most promotions were secured either by connections or by cash – as one historian puts it, identifying the characteristics of Stuart administration, ‘by patrimony, patronage or purchase’.11 The most authoritative study concludes that ‘judicial corruption was a fact of life in pre-Civil War England and barristers played an integral role as go-betweens in the corrupt relationships of judges with litigants’.12 In short, the rich had nothing to fear from the law: they had benefit of clergy and could buy the best advocates (or best-placed favourites) and bribe their way to victory over, or at least frustration of, a poorer plaintiff who was in the right.

  Cooke had none of these levers to pull: his parentage was humble and as an old Straffordian he lacked political patrons. As the royalists later said of him, in their superior way, he was a man ‘of inconsiderable birth and of small and mean fortune’. The class from which he came – the artisans and yeomen who made up much of the New Model Army – had thus far gained nothing from the law, and in any post-war settlement they wanted access to the courts for speedy and effective justice. John Cooke decided to give their aspirations an empathetic and expert voice: no other barrister was prepared to do an ‘inside job’ on his own profession.

  By 1645 Cooke had spent seven years in study, three in apprenticeship, two in Strafford’s service and six in practice. His ability was respected, to the extent that he gained at least one important client, General Fairfax,13 whom he had advised concerning the Fairfax family estate at Nun Appleton. But he was not wealthy: he gave most of his fees away to the poor, since the giving of alms was the only way for lawyers to avoid the woe that was threatened them in the gospel according to St Luke. But the most ethical of lawyers have palms that itch by habit: as Cooke himself admitted: ‘Such is the corruption of my nature, that when I have had a client in my study I have made my dear father stay in the [bed]chamber till I have gotten my ten pounds.’14

  Like most barristers Cooke lived in term-time at his Inn, in ‘chambers’ that consisted of an all-purpose sitting room/study with fireplace and chimney, and an adjoining bedchamber. There were four law terms when the London courts were crammed with business but these lasted for less than four months in total, leaving the rest of the time – ‘the vacation’ – for paperwork and riding out of London on circuits to pick up work at assizes. He would have had a clerk – probably a young relation – to carry books, arrange conferences with clients and accompany him on the downstream boat to Westminster Hall. This was another expense �
�� the boy would have to be clothed and fed (clerks had a special table in hall) and accommodated – although he probably slept in a truckle bed in the sitting room. Cooke was imbued with the Puritan work ethic, which called for morning prayer at Gray’s Inn chapel at 6 a.m., followed by a quick breakfast and a water taxi to Westminster where the courts sat from 8 until the early afternoon, although the criminal court at Old Bailey might sit until midnight to complete a trial within the day. Paperwork and conferences were in the evening, as was evensong at St Bride’s; the courts sat on Saturdays and no good Puritan could work on the Sabbath. (The royalist judge, David Jenkins, taunted Cooke that by applying himself every Sunday, he worked one year more in every seven.)15 It was a tough profession for most jobbing barristers, requiring good health and hard work and much interruption of conjugality – it was said that ‘a common lawyer’s terms are his wife’s vacations’. The wife of one distinguished bencher of Gray’s Inn was heard to complain ‘that all women would take heed of her for marrying with a lawyer, and would say she had been better to have married to a thresher, for such when he had had his hire would come home at night and be merry with her’.16

  Cooke himself and his family had suffered through the law’s delays and booby-traps. He had been in debt in 1641. His father was unjustly sued for £300 and harried from law to equity, where his defence finally succeeded – but at the irrecoverable cost of £700 in court and legal fees. Jacob Cooke, his brother, had taken over the tenancy of a bankrupt’s estate, but the bankrupt later paid off his debts and sued Jacob for £1,500, threatening to have him clapped into prison in London. Jacob ‘for peace sake’ gave him £700 to drop what Cooke described as a blackmail action (‘As any full-pursed malicious man may ruin a man with whom he is displeased’). Arrest for debt was a common terror among the middling classes: bail was not easy to obtain in the City of London.

  His brother-in-law, named Clapham, had an even worse experience in the notoriously corrupt Court of Wards. He took a yearly tenancy in 1642 of some lands in Leicestershire which he relinquished because the civil war was raging in the area, but his sheep and cattle were seized to guarantee the rent. Cooke went as his counsel to the Court of Wards to obtain an order to hand them back, and reached an agreement with one of the court officials that his brother-in-law would not be arrested for any rent that the other party claimed he owed. The official invited them to his home to ratify the agreement – and demanded a bribe for having arranged it. Cooke refused to pay, whereupon Clapham was arrested on the charge that he owed rent of over £1,000. Cooke was furious: it was expected of barristers at the time that they would act for their family and friends, but instead of protecting Clapham he had been outwitted by a perfidious court official. To make matters worse his sister, on hearing of the arrest, immediately went into labour. The official jeered that the city court would accept nobody of less rank than an alderman as surety for bail, but Cooke found a judge who was prepared to take his father and a friend, as well as himself, as sureties. Then Cooke had the case removed from the Court of Wards to the Court of King’s Bench where he was better known, and obtained a court order for £40 against his brother-in-law’s persecutor. Clapham, he noted sadly, would rather have paid £100 to avoid the temporary disgrace.

  Clapham’s legal problems were not over: after the Court of Wards was abolished by Parliament in 1645 – its corruption had become notorious – he tried to get his sheep and cattle back by suing another official who had taken them into his own custody, but in 1650 that official was held to have immunity from suit. Then the original landlord sued Clapham in the Chancery division where the suit was delayed for five years and Clapham almost ruined by the continuing legal expenses and the loss of his livestock. Such experiences were not uncommon and they left a mark. ‘I do bear a personal animosity towards the practice of the law, my friends having suffered so much by it’, Cooke later admitted.17

  It was not so much a personal animosity as a love-hate relationship, and Cooke had suffered it for some years. His views were widely known in the Inns: he inveighed openly against bribery and favouritism, and his nickname at the bar, ‘White Cooke’, may have referred to his incorruptibility rather than his pasty complexion. For powerful lawyers and judges he was not ‘one of us’, and his European learning and radical leanings made him the chief suspect as the anonymous author of the first devastating critique of the legal profession, which hit the streets soon after Naseby.18 A Looking Glass for all Proud, Ambitious, Covetous and Corrupt Lawyers counselled its readers against electing to Parliament ‘men whom fools admire for their wit, namely lawyers’.

  This was a topical question, since well over 300 members of the Long Parliament had attended at the Inns of Court and seventy-five of these were practising barristers. The argument was simple: the great jurisconsuls of Rome had acted for the poor without fee: the English scions of the Inns, by demanding large fees, had become ‘hackney pettifoggers and hucksters of the law’. The anonymous author recalled a time within old men’s memories when competition thrived: lawyers would stand at the corner of Chancery Lane and at Temple Bar and by a pillar outside St Paul’s and ‘cap in hand, courteously salute their countrymen, enquiring what business brought them to town, not unlike watermen plying for a fare’. But this halcyon image of cheap legal services was long gone – now it was impossible to obtain an audience with a great lawyer without a large fee paid up front, while pleadings cost a pound for every line written in incomprehensible law French. To succeed in a particular court, it was necessary to retain the judge’s ‘favourites’ who had special access: ‘Oh misery! Poor men cannot afford the price of justice and rich men are oft undone by buying it.’ The proliferation of lawyers (especially the new breed of solicitors) was oppressing the country – they were like locusts swarming over the land, devouring and impoverishing it. Lawyers were a bold and talkative ilk: elect them, and they would be nominated to chair parliamentary committees where their habit of taking fees for talking would encourage corruption. ‘It is to be feared that the commonwealth, though founded by the laws, will be confounded by the lawyers.’

  It was a powerful, witty and well-informed indictment of the profession, all the more so by being written from a Puritan perspective: its thesis that a Parliament full of lawyers would never countenance effective law reform ‘because they got more by the corruption and delays of the law than by the law itself’ was insightful and proved in time (and to Cooke’s despair) all too true. The pamphlet’s message was immediately taken up by John Lilburne, in a blast entitled England’s Birthright Justified, and then by his fellow Leveller William Walwyn, in England’s Lamentable Slavery, and in the following years by booklets with titles that speak for themselves: Hell, Rome and the Inns of Court; The Corrupt Lawyer Untrussed, Lashed and Quashed; Everyman’s Case, or Lawyers Routed; The Lawyer’s Bane; The Chief Judge of Hell; St Hilary’s Tears Shed Upon All Professions from the Judge to the Pettifogger; A Rod for Lawyers, Who Are Hereby Declared Robbers and Deceivers of the Nation.

  What was emerging from these powerful propagandists, who had receptive audiences in the ranks of city tradesmen and in the middle echelons of the New Model Army, was a dangerous streak of hostility to common law and even to Magna Carta, which Walwyn claimed was an irrelevance because it was a charter for barons and not for common people. This was the voice of Jack Cade (in fact, the shout of his comrade, Dick the Butcher): ‘The first thing we do, let’s kill all the lawyers.’19 It was a worrying prospect that a post-Naseby world would renounce the very basis upon which the revolution had been fought, namely for common law and Magna Carta against the prerogatives of the King. John Cooke was known to be in sympathy with ideas in the original pamphlet and was widely accused of writing it. That accusation must have been given greater force when he accepted a brief to act for ‘Freeborn John’ Lilburne. It was time to make his real position clear – which he did in a book-length pamphlet published in February 1646.

  This remarkable publication The Vindication of
the Professors and Profession of the Law, began with an astute dedication to the ‘noble senators’ of the Lords and Commons, ‘from whom the King’s majesty can no more be divided in his political capacity than the head from a living body’ (an ironic reminder of how this concept of shared sovereignty, accepted at the end of the Civil War, would become outdated just three years later, when the King’s head was severed from his living body). Cooke urged Parliament to progress towards realisation of Magna Carta’s promise of speedy justice. He looked forward to the day when civil actions might be commenced and completed in one law term – i.e. in months rather than years – and made very clear that he was not blaming the judges (before whom he had to appear) for deciding hard cases: that was the result of the bad laws they were obliged to uphold. Reform of those laws was a matter for Parliament, not for the courts and certainly not for the King. This was, indeed, the great strength of the common law, which distinguished England from less happy lands which lacked parliaments: ‘I may most truly say that the laws of England are either actively, or potentially, the best in the world, because if anything be amiss, the Parliament may reform it.’20

  Cooke made his message to the Commons clear from the outset: