Politicians observe, as the greatest misery in war is to see a man’s wife ravished before his face, so certainly one of the saddest spectacles in peace is to see might overcome right – a poor man’s righteous cause lost for want of money to follow it . . . Look with eagle eyes into the poor man’s sorrows and oppressions, and see that justice be done them for such fees as they are able to pay.21
Cooke warned that there could be no peace without justice, and that meant restocking the bench with godly and learned judges who preferred ‘right reason to precedent’. This was the most important post-war task. He proudly eschewed in his own writing the ‘untunable jarring’ of Latin phrases and strongly advocated the abandonment of law French and the discontinuance of legal documents couched in Latin: ‘I am ashamed that a sub-poena should be served on a countryman in Latin when peradventure scarcely anyone within five miles understands it.’22
Cooke commenced his critique confidently, by reprinting in its entirety the pamphlet to which he was responding so that his readers could, in fairness, appreciate the other side. He began with a heartfelt attack on anonymous authors: ‘Why should he who thinks he writes truth be ashamed to own to it?’ He easily dealt with the silly suggestion that it was dishonourable for a lawyer to accept a fee, although he conceded it had to be moderate and earned by good and faithful service. Cooke was writing, in effect, the first book of legal ethics and he began it with a rule against touting: ‘I hold that to seek for clients is as preposterous as for a woman to go a wooing, or a physician to seek for patients.’23 The barrister who is paid a fee is trustee of the money under a tacit contract: he has a duty to return it if he does not do the work. The fee ensures that the lawyer ‘lays it to his heart as if it really was his own case’. But since litigants are like sick men – ‘distempered, passionate, willful and extremely in love with their own cause’ – the advocate has a duty to advise them emphatically to drop an action that is unlikely to succeed. Cooke always did this with his own clients and noticed ‘how disconsolately they have gone away with gouty hands, as if I had been their professed enemy’. Although honey in the mouth produces money in the hand, the advocate’s duty is to give advice on what the law is, not what might be achieved through exploiting it by perjury and other tricks. As for the common cavil that lawyers will take any side irrespective of truth, ‘the truth lies many times in such a deep well that each lawyer has a bucket to draw’; estate law, for example, was so difficult and complex that ‘the judge has one ear for the plaintiff and the other ear for the defendant, but counsel has both ears for his client’.
The Vindication continues much in this vein, setting out what now appears ethical orthodoxy, although Cooke was articulating some of these rules for the first time – for example, the rule that no barrister should charge a fee for advising a fellow barrister, a professional courtesy that was in the process of crystallising.24 His concern that clients should be served by counsel who gave honest advice was directed at the ambulance chasers who led them into court at their peril and not at the lawyers who undertook unpopular causes, as Cooke himself was often to do. He endorsed the ethical rule that a barrister was entitled to appear for any client who had an arguable case, so long as he did not participate in any deception of the court.25 But in stating these rules of ‘vindication’, Cooke underpinned them with a commitment to justice and the defence of the poor which was unparalleled in England up to that time. It was certainly unheard of for a lawyer to advocate, as did Cooke, a ‘cap’ on professional earnings, beyond which all work should be done free of charge for the poor.
Drawing upon the lessons preached at Gray’s Inn by ‘heavenly Dr Sibbs’ and some proto-socialist ideas he had picked up in Italy, Cooke urged that ‘no man should get above twenty thousand pounds by his profession or occupation, which being acquired he should either desist or give away to others’26 (in modern value, lawyers should stop earning once they have made their first million). Since the purpose of any occupation is to serve God by serving mankind, earnings vastly in excess of what was needed to maintain home and family should either be waived in respect of services to the poor or else given away for good causes. It was a rule fashioned not only for lawyers, whose well-being was a reflection of the kingdom’s prosperity, but for the clergy who grasped for tithes and physicians whose high charges for visiting the sick were gains ill-gotten indeed – more grievous to their patients than the illness itself. Cooke’s demand was that the rich should practise philanthropy, on the payback principle that those who profit from a community have a moral duty to dispense charity.
Cooke contended that a surfeit of lawyers was a sign of a flourishing country, but he deplored the way the profession and the law itself had been permitted to develop under the Stuarts. Reason must be the basis for all law, although he was careful to point out, with a clear echo of Coke’s advice to King James, ‘that which we call the reason of the law is not every natural man’s reason but a practical and studied experience acquired by much industry and long observation’.27 (There had to be some benefit in seven years of study followed by three more years of apprenticeship.) But he identified cruelty in many of the accepted notions of the time: the rule that all a suicide’s property should go to the King, for example, was unfair to the grieving children left to beg on the streets. He condemned the rule that defendants could not call witnesses on oath, that they were not permitted counsel when their life was at stake, that oversights in the highly technical rules for pleading indictments enabled many murderers to escape justice. The rules were even more technical in civil cases, which could be won or lost by minor errors in arcane pleadings, handwritten (at £1 a line) in the incomprehensible argot of Latin-laced Norman French. There were declarations, pleas in bar, replications, rejoinders, rebutters, surrebutters, and so on. Many good causes were lost by defective pleading: ‘the loss in such case ought at least to be borne by the counsel or attorney who had been at fault’28 (this suggestion – that barristers should be liable for their mistakes like other professionals, through a law of professional negligence – did not endear Cooke to his colleagues, and did not come to pass for more than 300 years). Cooke condemned ‘benefit of clergy’ as both an encouragement to crime and an insult to reason: ‘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.’29
The issue that concerns Cooke time and again is the endemic delay in the justice system of the period. He saw no reason why cases in London should not be decided within a month; if a plaintiff failed to bring his case on within three months, it should be dismissed with costs. Although critics blamed lawyers for spinning out cases so they could obtain more fees, Cooke explained that in fact both barristers and solicitors would benefit financially from speedy justice: they would get through more cases and potential clients would be keener to go to law. Unlike most barristers, then as now, he had a good word to say for that new professional underclass, the solicitor:
If they be honest men – as all of them are for anything I know to the contrary – I know nothing in right reason that can be said against their profession. I believe they are very useful to the client and of great assistance to counsel, who many times in a long business sees much through their spectacles, not having time to peruse depositions.30
Cooke defended equity, too, from the critics who condemned it as an extension of the power of the King. Equity was dispensed in the court of Chancery, which had the power to do what was right when statute law was silent or produced an unconscionable result. It gave remedies, for example, against bargains produced by deceit or undue influence, e.g. where children or the feeble-minded were lured into making contracts which might be good in law but were bad in conscience. For Chancery to work effectively, Cooke insisted that it should reject trivial suits and impose sanctions against false actions: the plaintiff should put his claim on oath (so he could be prosecuted for perjury if it turned out false) and barristers and solicitors
should take an oath to say nothing to the court that they doubted to be true. ‘For my part, when anyone comes for advice about commencing a suit, I tremble and bid him first examine his own conscience seriously: has he been wronged, and in a considerable matter? For I would not have Christians go to court for trifles . . . Law is like a labyrinth, the entry very easy but the exit very difficult.’31
The Vindication was not only concerned with the law as a set of rules: it was the first informed criticism of the law as it was practised, in the courts that did their business in the Guildhall and behind partitions in the crowded thoroughfare of Westminster Hall. They did not do business often enough: ‘No vacations in the Courts of Justice’ was Cooke’s slogan. The most heartfelt section of his book was that dealing with judicial favouritism – a very practical problem which took courage for a barrister to expose. Scandalously, every court had its ‘favourites’ whose cases would be called first and who would have private access to the judges. Naturally, they obtained the lion’s share of work. Their ease of access gave rise to the perception that they passed on bribes to their judicial patrons, and it certainly distorted the priorities of the court always to hear the favourites first, even when their cases were neither urgent nor important. Cooke argued that matters touching life and liberty should always be heard first, irrespective of the identity of the counsel who proposed the motion. The system of ‘favourites’ discriminated against other competent lawyers and certainly against their clients. It would destroy the profession, since good men would not study the law once they realised what a lottery success at the bar had become.
Cooke was exposing a raw nerve. As Bulstrode Whitelocke conceded when it was safe to do so (i.e. in his memoirs), favourites were retained by clients because ‘they hoped thereby to have more favours than otherwise they ought to have, a kind of bribery’ (Whitelocke had been a ‘favourite’ of King’s Bench when his father was a judge, but his annual earnings dropped from £300 to £50 when Judge Whitelocke died).32 The greatest ‘favourites’ of all were the sergeants, members of the ‘Order of the Coif’ who were appointed by royal writ (after a substantial payment – hence the joke ‘argent makes sergeant’) and who had lucrative rights of audience in the Court of Common Pleas. On the other hand, ordinary barristers were not as busy as they seemed, as they pranced up and down Westminster Hall:
I cannot but smile many times, to see what a company of hypocrites we are, striding up and down in our gowns, making men believe that we are full of employment; and so we are indeed in a perpetual motion measuring the length of the Hall but not making motions, perhaps, from the first day of term to the last.33
Cooke accepted that justice was a moral rather than a religious virtue (‘No doubt there are many good justices amongst the infidels’) but he urged that all judges be selected for their learning, prudence and integrity. Courage was required in standing up to the King and if needs be to Parliament, but disaffected royalists could not be suffered on the bench. Charles I had been wary of Puritan judges, but they were least likely to take bribes or draw out proceedings in the hope that a bribe would sooner or later be offered. The only way to obtain good judges was to ensure that the bar from which they were recruited was stocked with good men. The greatest defect in the profession, and hence in the judiciary, was, he thought, the failure of the Inns to teach English history: they produced crick-necked practitioners who could not look back to understand the reason why various legal doctrines had developed.34
Cooke did not shrink from tackling the complexities of reforming land law, which remained feudal in origin and perplexing in practice. He condemned primogeniture, the established system under which the oldest son took all, leaving daughters (even if older) to be married off and younger sons to find careers in the army or Church or else to starve. It may be that this obvious unfairness made him think more carefully about hereditary monarchy, which operated on the same feudal principle. But Cooke recognised the virtue of maintaining large estates and was more concerned that poor farmers – like his own relatives – should be able to leave modest portions of their estate to daughters and younger sons.35 Where he was truly innovatory was in being the first to propose a national land registry, containing records of all contracts, conveyances, leases and charges which might be inspected on payment of a small fee by those who needed to check whether an estate was encumbered. He proposed that no dealing in land should be valid unless and until registered. This system would, when established in 1862, become basic to transfers and mortgaging of land: the advocate for the poor had hit upon a necessary service for the transfer of wealth. Cooke’s purpose in suggesting the reform was not only to avoid fraudulent land sales, but to provide a measure of freedom of information: once the truth about estates was discoverable, charlatans could not ‘dress in a garb of five hundred pounds a year’ and incur debts they could never repay, nor could misers pretend that they were poor.36
The Vindication was a remarkable mix of what lawyers would call confession and avoidance: a realistic account of the grave practical defects of the law, the courts and the profession, yet at the same time a passionate defence of their proper role. That role included a place in Parliament for lawyers (although not for judges) and Cooke paid fulsome tribute to Hampden, Pym and other notable MPs who had trained at the Inns. He did, however, make one important concession to the anonymous pamphleteer he was refuting: MPs who practised as barristers should be disqualified from voting on regulation of legal fees, redress of court delays or other legal reforms, because no man should be judge in his own cause, and no ‘gown man’ (as barristers were termed) should be in a position to press his private advantage. Cooke was prescient in fearing the self-interest of his colleagues: in due course his reforms, even when supported by Cromwell, would be frustrated by lawyer-MPs. These obstructionalists were not royalists (‘malignant lawyers’, as Cooke described them, of the ‘Oxford party’) – on the contrary, they were independent grandees like Oliver St John and Bulstrode Whitelocke, who were not prepared to surrender their professional privileges.
The Vindication salutes the courage of the soldiers, especially Fairfax – a member of Gray’s Inn – and Cromwell, ‘who fears nothing but to offend God’. It reflected a common expectation of a post-war constitutional monarchy: ‘The Parliament desires not to diminish his Majesty’s just grandeur but to defend themselves and the Kingdom from violence and oppression . . . Oh that his Majesty would yet forsake all his destructive ways, and engage himself with his noble Lords and Commons against all anti-Christian sin and profaneness.’37 Oh but what if his Majesty did not forsake his destructive ways? In the hope-filled days of 1646, this prospect did not dawn on any of Parliament’s supporters, even upon the political thinking of the visionary John Cooke: his thoughts about the monarchy were to run very far and very fast over the next three years.
The Vindication was published by the bookseller Matthew Walbank and was sold from his shop at Gray’s Inn Gate and from stalls in St Paul’s Churchyard and from the booksellers stationed around the courts in Westminster Hall. Publications of this kind – pamphlets the length of a small book – would have a print run of about 1,500 copies with an estimate of ten readers per copy,38 mainly in London where a very high proportion of the citizenry – 80 per cent of men, at one estimate – could read.39 The significance of the Vindication as a reference point for law reform literature may have secured it a wider circulation: the work was reprinted by Walbank in 1652, when Cooke was Chief Justice of Munster and his law reform agenda appeared likely to be implemented.
February 1646 was so cold that printing errors in the Vindication were caused by the frostbitten fingers of its compositors. It was an important month for Cooke: six days after publication, he made his most celebrated court appearance to date: as counsel assigned by the House of Lords to argue that an old Star Chamber conviction was wrong in law and should be overturned. Cooke was to be led by John Bradshawe, a more experienced counsel and also a friend of Milton. The man whose conviction
they would seek to overturn was an idol of the mob whose fame, then and later, came from speaking for himself. ‘Freeborn John’ Lilburne had persuaded Parliament, now that the war was almost over, to examine the lawfulness of the sentence passed on him in 1638 by the Star Chamber.
Lilburne had lived eventfully since Cromwell had secured his release from prison. He had enlisted as an officer in Essex’s army and survived Edgehill, only to be captured by Prince Rupert’s men in a subsequent skirmish and carried off as a prisoner to Oxford, where he was put on trial for high treason. He confounded the King’s court by demanding that it adjourn to the nearest field for a medieval trial by battle, in which ‘Freeborn John’ wished to face Prince Rupert in single combat. Edward Hyde, present at the trial, thought that ‘he behaved with so much impudence that it was manifest he ambitioned martyrdom for his cause’.40 A few days before the court was due to sentence him to death, he managed to smuggle a letter out of Oxford to the Speaker of the House of Commons. Parliament had been unaware of this outrageous royalist initiative to put its soldiers on trial for treason – a pretext for executing prisoners whom the King was bound, by the laws of war, to prosecute only for war crimes or escapes. The House immediately invoked the lex talionis (‘an eye for an eye . . .’) and declared that if the Oxford trials went ahead, it would treat royalist prisoners in the same way. But could this declaration reach Oxford in time to save Lilburne? There was no telephone, fax or available pigeon between Westminster and Oxford, and no open line of communication between the two forces. Lilburne’s heavily pregnant wife, Elizabeth, persuaded the Speaker to give her a letter authenticating the declaration, and set off on horseback for Oxford, reaching the royalist capital in the nick of time. The King caved in to Parliament’s threat and ordered the abandonment of unlawful trials of prisoners of war. Lilburne was reprieved, and later swapped for a royalist prisoner.
The Tyrannicide Brief Page 12