The Tyrannicide Brief

by Geoffrey Robertson

  Cooke realised that Nutley could be pushed further, to give more emphasis to the fact that he had been acting under a professional duty, and could not properly have refused the brief. Although cross-examination was not allowed, he asked the court’s permission to put some questions. He asked whether Nutley could recall what he (Cooke) had told him about the court’s intentions in putting the King on trial. The answer was helpful:

  NUTLEY: My Lords, I do remember that I often had conferences with the defendant. I desired him to desist from the business, considering the dangerous consequences of it. Truly my Lord, I do well remember that he did say he did hope they did not intend to take away the King’s life. I said, ‘If they go about any such thing, please use your utmost endeavour to preserve his life.’ He said, ‘I did labour to that purpose, but they tell me they only intend to bring him to submit to the Parliament.’

  COOKE: It is said that I demanded judgment of the King’s life. Mr Nutley, I ask you whether I used the words ‘judgment against his life’ or whether I only demanded judgment?

  NUTLEY: My Lords, I cannot possibly remember to that syllable. But judgement was demanded . . . if you please give me leave to add this one word more, my Lord, I did hear him say at the time, and he showed me a paper that contained an order of the court that did direct the very words that he should use when he came to deliver the charge.

  COOKE: So I was directed by those gentlemen as to the very words I should speak?

  BRIDGEMAN: We are satisfied in that. The witness says that you showed him an order by which you were directed.

  This was an important concession: Bridgeman accepted that Cooke was acting under instructions, and had been directed by the court to charge the King in the name of the Commons and the people of England. Nutley had volunteered that Cooke was under the impression that it was not the purpose of the proceedings to have the King sentenced to death. And as for the allegation that Cooke pressed for the court’s judgment against the King, this witness left open the possibility (it was indeed a fact) that Cooke had asked the court only to deliver judgment – which might in theory have been ‘not guilty’ and might well (there had been a number of commissioners in favour) have been for an adjournment, so the King could make his offer to Parliament. Nutley was the first witness for the prosecution, but had been helpful to the defence in suggesting that Cooke was innocent of malice.

  Other witnesses testified that Cooke had requested that the charge be taken pro confesso, had pressed ‘very earnestly’ for judgement and had complained about the King’s delaying tactics. They told how the King had hit Cooke on the shoulder with his cane – clearly a memorable moment – and that the Solicitor-General looked back at him ‘with a great deal of indignation’. There was nothing to show that Cooke had gone beyond his instructions or had been activated by malice in carrying them out. A soldier named Burden, whom Cooke had called as a witness in the Painted Chamber proceedings to show that the King had been an active field commander, gave evidence but this too was supportive of Cooke’s defence that he had only asked the court ‘to proceed according to justice’. When yet another witness agreed that Cooke’s request to the court had not been for it to convict the King, but that all proceedings should be ‘agreeable to justice’, Bridgeman could contain himself no longer: ‘Read the last article of that charge to the jury,’ he snapped at the clerk.

  And John Cooke does, for the said treasons and crimes, on the behalf of the people of England, impeach Charles Stuart as a tyrant, traitor, murderer, public and implacable enemy to the Commonwealth of England, and prays that . . . judgment may be hereupon had as shall be agreeable to justice.

  It was a doom-laden moment. The words ‘tyrant, traitor, murderer’ echoed through the courtroom, to remind the jury that Cooke had used them of a man who could not be referred to nowadays without the prefix ‘blessed’ or ‘sacred’. Their eyes would have narrowed as they surveyed the author of these libels, the prisoner at the bar: the point about his asking only that the proceedings be ‘agreeable to justice’ was entirely lost. ‘Mr Cooke,’ said Bridgeman, doubtless with a crocodile smile, ‘will you have any witness examined touching the question you last asked?’ Cooke gave up: Bridgeman had terminated his best point, and with prejudice. The King’s laughter in Westminster Hall, when this part of the charge was read, had returned to haunt his prosecutor.

  But Cooke’s own prosecutor had thus far failed to establish that he had done more than follow the instructions in his brief – to draft the charge and to present the case against the King. He had done no more than his duty as counsel retained for a fee, and there was no evidence of malice or of his ‘traitor’s heart’. This came from a surprise witness, one George Starkey, whose name had not been on the list of prosecution witnesses filed at the grand jury proceedings just five days before.2 Starkey testified that he ‘owed all my knowledge in the laws’ to Cooke, who had tutored him at Gray’s Inn ‘at the beginning of the Long Parliament’ – i.e. in 1641. Cooke, he claimed, was then in debt and needed to make money by teaching students. Starkey said that he had remained friendly with Cooke, who at Inn dinners had spoken so critically of Pride’s Purge (‘I think they are all mad’) that he assumed Cooke was attending Westminster Hall out of curiosity, until hearing of his starring role as Solicitor-General. Then came the incriminating part of the testimony, about a conversation one evening during the King’s trial:

  Mr Cooke came to Gray’s Inn about 10 or 11 o’clock at night. I was walking in the court before my chamber with another gentleman, and did see him pass out of the house to go back again. I called after him, ‘Master Cooke’, upon that he turned back and met me. I took him by the hand and said, ‘I hear you are up to your ears in this business.’ ‘No,’ he said, ‘I am serving the people.’ ‘Truly,’ said I, ‘I believe there are a thousand to one will not give you thanks.’ He answered me – ‘You will see strange things and you must wait upon God.’ I did ask him, but first he said this of himself: ‘He was as gracious and wise a prince as any was in the world . . .’ I did by the way enquire what he thought concerning the King, whether he must suffer or not. He told me, ‘He must die and monarchy must die with him.’

  Cooke seemed taken completely by surprise: he asked when this alleged conversation took place – whether it was before or after the King’s sentence. Starkey could not say, but thought that the chance meeting had taken place shortly before the sentencing. John Cooke denied the conversation: it had taken place, if at all, ten years previously and the witness was obviously fabricating at least some of its detail. Starkey was produced at the last minute to bolster a weak case and he made his royalist bias clear later in the day by testifying against Hugh Peters. He spoke then of living in this period with his family at Windsor and not at Gray’s Inn. However, his account of the conversation did reflect Cooke’s state of mind shortly after the trial, when he wrote King Charles: His Case – a work the prosecution did not rely upon both because it post-dated the crime, and because they did not wish to give it publicity.

  Starkey’s evidence had been called to prove an ‘overt act’, i.e. the uttering of words which proved malice, but only one witness, Starkey himself, had sworn to it. There was ‘another gentleman’ present and he had not been called to confirm it. Cooke naively believed the jury would be told to disregard Starkey’s evidence because of the ‘two witnesses’ rule: he was unaware of the Serjeants’ Inn meeting, at which the judges had agreed with the prosecutors to change this rule, for the very purpose of ensuring his conviction.

  The prosecution case ended, and since prisoners were not at this time allowed to testify in their own defence, Cooke launched into his closing address. He began with a deliberately disingenuous tribute to his judges and to English justice: in other kingdoms, men accused of treason were ‘served like John the Baptist’ – i.e. summarily beheaded – but here ‘I have a fair trial with judges of the law who are upon their oaths to do equal right and justice between the King and every prisoner concerning mat
ters of life and death’. This was not an admission that his trial was fair – it was far from over at this point – but a challenge to the court, at the outset of his defence, to try him fairly.3 This was a vain hope – he went on to remind the commissioners that they were on their honour to save his life if there was any law that would do so – blithely unaware that the judges had already changed the law. The evidence, Cooke said, did not establish that he had been ‘instrumental’ in the King’s death and he relied upon ‘the naked truth which Mr Nutley has in a great part spoken’. He had been assigned as counsel for the government, and he could not be held criminally responsible for his instructions: there was no malice or wicked intention in acting within his sphere as a barrister. He was instructed to lay the charge and to ask for judgment: this could not amount to treason, because the court was free to accept or reject his submission. His only request was that the allegations be tried ‘according to justice’, i.e. according to the rule of law.

  A barrister, Cooke insisted, cannot be held responsible for the fate of the prisoner he prosecutes. He has no power at all, merely a duty: ‘the counsellor is to make the best of his client’s cause, then to leave it to the court.’ He had not played any part in establishing the court and he could call many witnesses to confirm that there was not, before the sentence, any fixed intention declared by any of the judges to put Charles to death. The prosecution had to prove malice and ‘that I did nothing maliciously I hope will appear in this – what I then spoke, it was for my fee. I may be called avaricious but not malicious. I hope the jury will take this into consideration: I had no power to act judicially – I was not magisterial, but ministerial.’ In this role he could not have been instrumental in the King’s death: ‘His Majesty being a prisoner without any hand of mine, I giving advice according to what was dictated to me to bring him to that trial whereby he might have been acquitted and so set at liberty – I hope that will not be said to be instrumental.’

  It was a vain hope. But calmly and logically, although at risk of his life, John Cooke was articulating for the first time what has now become the bedrock principle of the English bar: the duty of counsel to accept any brief that is offered with an appropriate fee and to make the best argument he can for his client’s cause, irrespective of the danger to himself or to his reputation. Even the press seemed to understand the point: it reported the next day that Cooke ‘appealed to all barristers as to whether they had not very often pleaded in a cause, where they could have wished with all their hearts that the verdict had gone against them.’4

  Centuries later, two more celebrated (and better-connected) lawyers were to dress this argument in finer language, and win the profession’s accolade for originating the ‘cab rank’ rule. Lord Erskine, who accepted the brief to defend Tom Paine for writing The Rights of Man, said ‘the liberties of England are at an end’ if barristers could be permitted to refuse an unpopular brief. All that Erskine lost was his retainer to advise the Prince of Wales.5 His famous speech is never published in full because it is an epic of self-adulation, in which the barrister boasts so much about his own virtue that he omits to offer any defence of Tom Paine, who had the foresight to flee to France.

  Lord Brougham, who accepted the brief in 1820 to defend Queen Caroline against the King’s allegations of adultery, waxed even more portentous:

  An advocate, by the sacred duty which he owes his client, knows in the discharge of that office but one person in the world, that client and none other . . . he must not regard the alarm, the suffering, the torment, the destruction which he may bring upon any other. He must go on, reckless of the consequences . . . even if his fate it should unhappily be, to involve his country in confusion for his client’s protection.6

  Brougham, a wealthy liberal lawyer like Erskine, was appearing without any danger to himself in a case that could only advance his political career. These self-promoting whigs making high-flown statements in utter safety bear no comparison with John Cooke, a defendant clinging to the principle for his very life, defending himself in the face of hanging judges, a rigged jury and a hate-filled public gallery. By the time he began his final speech the public hangman – absent from court in the morning – had taken up his position opposite the prisoner. His rope was draped around his shoulders and his tunic was flecked with blood. He had, just an hour before, cut Thomas Harrison into four pieces.

  John Cooke continued, unfrightened and unfazed – uninterrupted (it was a tribute to his advocacy that in this, alone of all the regicide trials, no judge other than Bridgeman said a word). Cooke had to answer the prosecution argument that he knew from the outset that the High Court of Justice was (as described in the Act of Oblivion) ‘tyrannical and unlawful’. Cooke riposted that

  a tyrannical and unlawful court is a court de facto although not de jure. If a court be not a just and lawful court, none the less it is a court. This was a court: officers attended it, they said they had authority for counsel to be appointed and to act within his sphere and according to his instructions . . . There was, then, no other authority: authority was de facto, otherwise it would not have been lawful for any man to exercise a profession during such a power, and I hope that barristers might exercise their profession as well as others. I was within my sphere acting as a barrister.

  Cooke had a good statutory basis for this argument. The de facto Act of Henry VII in 1495 was still in force, providing a defence for those who acted in accordance with established authority, even if that authority had as yet no legal basis. The provisional authority envisaged by the Act was that of a king who had not yet been crowned, or a usurper who was on the throne for the time being and possibly for a long time, but the principle applied equally to a power that had already established itself as the supreme and only power in the land. That was the reality in January 1649: the army had installed the Rump as the sole authority and with army backing it went on to govern until dissolved by Cromwell in 1653. By that time, the authority of the Commonwealth was recognised throughout Europe. As Lord Campbell, a lord chancellor in the mid-nineteenth century, observed of the Regicide prosecution:

  No satisfactory answer could be given to the plea that Parliament was then de facto the supreme power of the state, and that it could be as little treason to act under its authority as under the authority of a usurper on the throne – which is expressly declared by the statute of Henry VII not to be treason, and it was miserable sophistry to which the court was obliged to resort that, as there was no one else acknowledged as the King of England, Charles II, while in exile, must be considered de facto as well as de jure.7

  Cooke advanced other arguments. He maintained that words alone could not constitute treason, but Bridgeman countered that treacherous words were the best evidence of a traitor’s heart. He urged that on true construction of the Act of Oblivion the words ‘or being instrumental’, in the phrase ‘sentencing, signing or being instrumental’ had to be construed in a temporal sense as referring to those involved in the execution, which came after the sentencing and after the signing of the death warrant. This was an ingenious grammatical construction, but Bridgeman was right this time to point out that Parliament had not intended it.8 It was a nice legal point, of a kind that barristers can never resist taking, but it gave Finch – a robust jury advocate – the cue for a crushing retort, delivered while pointing at the prisoner: ‘He that brought the axe from the Tower was not more instrumental than he.’

  Cooke did make a good point that he was within the promise of the Declaration of Breda since although imprisoned in Ireland at the time, and not therefore capable of surrendering, he had petitioned to have the benefit of the declaration. Bridgeman repeated his erroneous ruling that the declaration was non-justiciable: it binds the King ‘in honour and in conscience but not in point of law’. As to Starkey’s evidence that he had said of the King ‘He must die and monarchy must die with him’ – words relied upon heavily by the prosecution in closing – Cooke argued that the ‘overt act’ rule required two witnes
ses, and Starkey’s companion had not testified. Cooke was right, but the judges had secretly agreed at Serjeants’ Inn to change this rule, so Bridgeman would direct the jury in due course that they should rely on Starkey’s uncorroborated testimony.

  John Cooke was a mild-mannered and somewhat intellectual lawyer: it was impossible for him to summon up the rhetorical devices which more knock-about counsel use to arouse jury sympathy. There was, of course, no sympathy in this court to begin with, and Cooke’s defence was based on a professional ethic that was not widely understood, even among the profession of the ‘long robe’. His peroration was a summary of his best arguments mixed with a crude plea that there could be no urgency about putting him to death:

  Now gentlemen of the jury, I must leave it to your consciences whether you believe that I had a hand in the King’s death when I did write only what others did dictate to me and when I spoke only for my fee . . . When I was in Ireland I had an opportunity to flee and I might have done so had I thought I was guilty. My name was in his Majesty’s proclamation, but I was a prisoner for four months and for that reason I could not surrender myself – I did not hide. Humane justice never punishes for expiation but only for prevention – when there is danger that the like crime may be committed again. Now all things are settled and there is no danger at all: there can never come such a case as this again. I say that I acted as a counsel and had no malicious intent. Mr Nutley bore testimony that I told him there was no intention to put his Majesty to death. I did say that I desired the court to do justice, what they decided to do was the court’s act, not mine.

  There must have been a tangible feeling in the courtroom, when Cooke rested his case, that he had raised real doubts about his guilt. This may be inferred from the grudging admiration in the next day’s official news report. Whilst the royal propagandist – probably Henry Muddiman – notes the impossibility ‘of any defence for such horrid wickedness, yet to do him (Cooke) right, we must need say, he answered as well as possible in such a foul case.’9 But that was before the summing up.