By the start of the twentieth century, the statute of 1660 which required the Church of England to say special prayers in every church on the anniversary of the King’s execution (30 January) and to celebrate the day of his son’s restoration (29 May) had finally been repealed. MPs had even agreed to erect a statue of the Lord Protector outside the Houses of Parliament which he had so often dissolved. But all was not forgiven. Empire loyalists in the states that were joining together to make Australia insisted that the new country should be described as a ‘Federation’ rather than a ‘Commonwealth’ because the latter carried ‘revolutionary connotations’.8 In 1911, the decision of Winston Churchill (first Lord of the Admiralty and an admirer of Cromwell) to name a new battleship after the Lord Protector was vetoed by King George V on the grounds that an ‘offensive oxymoron’ – namely His Majesty’s Ship Oliver Cromwell – should have no place in the royal navy.9 The mental block the British have in understanding what the regicides did for them is symbolised by the BBC’s Great Britons series which in 2002 invited the public to rank the top ten British heroes. Incredibly, Cromwell’s advocate – a history professor – could not begin to justify the King’s trial (‘Oh dear, Oh dear . . . shocking, shocking’) so it was little wonder that Cromwell came last, behind such ‘greater’ Britons as John Lennon, Princess Diana and Isambard Brunel.
The inability of the English to celebrate or even to grasp the achievement of 1649 is most clearly demonstrated by its school history curriculum. At the formative age of 13, children are taught (in the words of the government’s education website) to ‘focus on 1649 as a year of reckoning – as the winners of the civil war demonstrated their power over the losers.’10 This odd notion that 1649 rather than 1660 is the year for revenge is taught through three ‘violent incidents’, namely ‘the sombre scene at Whitehall as Charles I is beheaded in public, the drama of the Burford church as leaders of the Leveller mutiny are shot dead by firing squad and the killing of Irish Catholic civilians at Drogheda’. The true facts are that Catholic civilians were not killed at Drogheda; only three of several thousand army rebels were executed (against Cromwell’s wishes) after a lawful court martial at Burford; the scene at Whitehall was solemn but not necessarily sombre and the public could not see the actual execution. The republican revolution, unlike that in France more than a century later, was achieved by shedding no blood other than the King’s. However, British children must use these ‘violent incidents’ to answer the question ‘Should the king share power with parliament?’ In the 21st century, just as in the mid-17th century, they might be asked whether the king should have any power at all. However, the UK government does not encourage teenagers to think about the advantages of a republic. Most countries teach their children well about their national triumphs: Britain’s educators must be unique in hiding from them the truth about the nation’s annus mirabilis.
John Cooke has always been lost in Cromwell’s shadow. He usually rates only one mention in books about the period, as having read his charge against the King, although this was done by Broughton the court’s clerk. It was not until the 1970s that any significant analysis of Cooke’s contribution to law reform in England11 and Ireland12 emerged. Christopher Hill has noticed his wider significance as a radical visionary, and A. L. Rowse (in an otherwise silly book about the regicides) gives him ‘the credit of being a genuine reformer’ and praises both his work in Ireland and his criticisms of the legal profession in England.13 G. E. Aylmer, the expert on public service in the period, notes Cooke’s uniqueness as ‘the epitome of honest independency and frustrated reforming zeal’.14
Other modern writers have taken their cue from Clarendon, who is manifestly unreliable when describing rival lawyers and persons of low birth (Cooke was both). Antonia Fraser misdescribes how ‘A charge against the King was then read by John Cooke, a man of no particular reputation’,15 and Sarah Barber thinks him ‘a hack lawyer from Leicestershire’. She mentions his account of the storm, when ‘Cooke’s feverish dream had him screaming into the dark “I am not a parricide: I did not kill my father”’ – a scream that Dr Barber may herself have dreamt, since it does not occur in either John’s or Frances’s account of the event.16 Popular historians are apt to embellish his body-language. ‘John Cooke the prosecutor shouted, blustered and argued’ says Derek Wilson;17 he stares the King ‘fervently’ in the face while reading the charge, says Christopher Hibbert.18 Cooke did not read the charge and we have no contemporary description of his demeanour, which seems to have been mild – by repute ‘he was of a somewhat feeble frame and retiring manner’.19 Ask the National Portrait Gallery for pictures of the Solicitor General who prosecuted the King and it produces royalist propaganda drawings made in the nineteenth century that look nothing like him. In fact, the only likeness of John Cooke is a tiny engraved medal struck by Thomas Simon in 1649, the year of his triumph, used as the frontispiece to this book. The British Museum misdates it as 1660, the year of his disgrace. In the movie Cromwell, made in 1966 by Richard Attenborough, Cooke at last gets to deliver his final speech by way of some souped-up sentences from King Charles: His Case. This was forgivable dramatic licence: not so a bizarre twist in a 2005 television reconstruction of the regicide proceedings, when Cooke at the end of his trial thanks the court for its fairness – the very opposite of what happened at the Old Bailey on October 13, 1660.20
Ironically, since none of John Cooke’s pamphlets have been republished in modern times, his first wife’s meditations on the storm have recently featured in an anthology of women’s writings, Lay By Your Needles.21 Frances may not have done much sewing (she had a servant) but her decision that ‘my heart and tongue shall not only praise Him but with my pen also will I stir up myself’ now give her feminist credentials. This is anachronistic, of course – not even the wildest republican promoted the notion of votes for women, while Lilburne exploited them as shock troops to discomfort Parliamentarians (‘Strange that women should petition’ murmured one Puritan MP to a Leveller gentlewoman who pressed him in April 1649 to have Lilburne released from prison. He received the curt response: ‘Sir, that which is strange is not therefore unlawful. It was strange that you cut off the King’s head, yet I suppose you will justify it.’).22 Frances Cooke’s place, which she knew, was to tend her husband and to praise the Lord: Puritan women were permitted equality in access to heaven, but not in access to Parliament. Only when affairs of state became affairs with the head of state did women wield political influence – as Clarendon found out when the King’s mistress engineered his dismissal and disgrace. (He farewelled Barbara Villiers, in her moment of triumph, with the parting shot: ‘Remember, Madam, you will grow old.’)
John Cooke’s visionary suggestions for reforms of law and medicine and public administration have mostly come to pass. There is still time for his own profession to deliver on his exhortations, however: a revival of his proposal that barristers should make it a professional obligation to donate 10 per cent of their time to pro bono work was greeted with stony silence at a recent conference of the English bar. As for Cooke’s old Inn, Gray’s, it has avoided any mention of him for 350 years, ever since its benchers ordered the seizure of his chambers in July 1660 – presuming his guilt some months before his trial. Like the other Inns of Court, it now glories in its royal connections, and boasts the future Charles III as an honorary bencher.
The instruction in Cooke’s brief was to devise a lawful means of ending the impunity of a tyrant who happened to be a king. The republic came as a practical rather than a logical consequence of the trial: the Puritans who invoked God’s wrath on kings succeeded largely because there was no viable royal alternative. That was also the case in revolutionary France where the trial of Charles I assumed importance for all parties involved in the trial of Louis XVI. His lawyers advised him to adopt Charles’s tactic of denying jurisdiction, since the constitution guaranteed his inviolability, but Louis doggedly insisted upon establishing his innocence. This regicide trial was mor
e akin to Strafford’s attainder by Parliament – the King was unanimously convicted by a national assembly that had already declared his guilt. The vote to have him executed was close – Tom Paine, an honorary delegate, urged them to exile the King to America, where he might be reformed and become a democrat. Marat accused Paine of being a Quaker, Robespierre said humanity could not pardon mass-murdering despots, and St Just adopted Cooke’s argument: all kings were tyrants, and this king must die so monarchy would die with him. Jacobin censorship ensured that Louis did not become a Charles-like martyr: they even directed drummers to interrupt his speech from the guillotine.23
It was not until the twentieth century that Head of State immunity was challenged, by a British government at Versailles determined to deliver on Lloyd George’s promise to ‘Hang the Kaiser’ for ordering the unprovoked invasion of Belgium and unrestricted submarine warfare.24 But the USA insisted that sovereign impunity was central to Westphalian international law: the Kaiser remained in Holland, unhanged, as a guest of the Dutch government until his death in 1941. Had he been tried and punished, Hitler might have been given pause.
In 1945 the trial of Charles I cast a shadow over the US plans to put the Nazis on trial. Churchill, an admirer of Cromwell, believed the trial had been a mistake: the King had exploited it to secure his own martyrdom. That, he feared, was exactly what Hitler would do if put on public trial. So he proposed the same procedure used in 1662 against Downing’s victims, Okey, Barkstead and Corbet: the top Nazis would be ‘outlawed’ by name and once captured would be executed as soon as their identity could be verified. Truman and his legal adviser, Justice Robert Jackson, objected: summary executions
would not sit easy on the American conscience or be remembered by our children with pride. The only course is to determine the innocence or guilt of the accused after a hearing as dispassionate as the times and horrors we deal with will permit and upon a record that will leave our reasons and motives clear.25
So there was a deadlock over whether the Nazi leaders should be put on trial at all. Stalin had the casting vote, and he loved show trials – so long as every defendant was shot at the end. From this unpromising beginning, the Nazi leaders went to Nuremberg to face a new jurisdiction – that of international criminal law.
Herman Goering at first ordered his co-defendants to say only three words to their judges – the defiant catch-cry of one of Goethe’s warrior heroes, loosely translated as ‘kiss my arse’27. But as the pre-trial months passed, the Nazi leaders were inveigled by the fairness of Anglo-American trial procedures into playing the justice game.26 It was because they entered so fully into the adversarial dynamics of the traditional criminal trial, testing the prosecution evidence and undergoing cross-examination, that the ensuing judgment at Nuremberg has the stamp of historical authority. It was this kind of judgment, of course, that Charles had skilfully pre-empted by challenging the court’s jurisdiction and refusing all temptations to enter a defence. Goering cheated the hangman by taking poison: Charles, ‘the royal actor’, would not for all the world have missed performing on the scaffold stage.
For the half-century following Nuremberg, tyrants of all types lived happily ever after their tyrannies. Although the US Supreme Court in 1946 confirmed Cooke’s ‘command responsibility’ principle in relation to Japanese generals who connived at the war crimes of their troops, the allies covered up the responsibility of Emperor Hirohito for Japanese aggression. There was no accountability for Stalin, nor for other mass-murdering heads of state like Pol Pot and Emporer Bokassa and His Excellency Idi Amin V.C. and bar. It was not until General Pinochet’s arrest in London in 1998 that an English court would again consider the scope of sovereign immunity, finding in the law of nations the basis for ruling that former heads of state who order the torture of prisoners – one of Cooke’s allegations against Charles I – must face trial. There was increasing acceptance, at the turn into the twenty-first century, that sovereign immunity would be lost if the sovereign bore command responsibility for a particularly heinous class of offence – a ‘crime against humanity’ – such as genocide or widespread torture, or plundering innocent civilians. Slobodan Milosevic became in 2001 the first head of state since Charles I to face a panel of judges, at a court in The Hague set up by the UN Security Council.
Milosevic opened with the King Charles gambit, refusing to plead on the ground that the court had been unlawfully established. The English presiding judge, Richard May, did not make Bradshawe’s mistake of taking the plea pro confesso: he treated it as ‘not guilty’ and appointed an amicus team to take legal points on Milosevic’s behalf. The defendant instructed his own lawyers but had them sit in the gallery so that he could appear in court like Charles, isolated and alone, and made rabble-rousing addresses which played well on television to his supporters back in Serbia. The proceedings encountered many difficulties before they were abandoned upon his death: the court had approved an overlong indictment so the prosecution lasted for three years; it attempted at one point to foist barristers upon the defendant against his will; it was thrown into some disarray by the defendant’s self-induced ill-health. The problems that were encountered in trying to try Milosevic lend a kinder view to the way similar problems had to be approached by Cooke and Bradshawe back in 1649.
As for Saddam Hussein, there is no one who better fits the allegations of tyranny in Cooke’s charge against the King. When he first appeared in court after his arrest, his language (in translation) was identical to that of Charles: ‘By what authority do you put me on trial?’ This was a good question, since he had been overthrown by a US invasion generally held by international lawyers to be unlawful. The US set up a rump Parliament (the interim administration) which in turn appointed a High Court of Justice (the Iraqi Special Tribunal) empowered to send him to the scaffold for making war on his own people, albeit with poisoned gas rather than poisoned bullets. The Shiadominated government and the Bush administration seem determined that Saddam will die like Charles I, on a gallows in some dusty square packed with soldiers. A brave face at his execution, and this tyrant too will achieve martyrdom.
Meanwhile, former tyrants still live happily ever after while others strut their local stage – in North Korea and Turkmenistan, in Burma and the Congo. The world has plenty of prerogative-happy crown princes and emirs, sultans and kings and presidents-for-life. Nominally democratic republics without effective consitutional safeguards for civil liberties soon develop the oppression and corruption that are features of tyranny-lite. Running a despotic government which commits widespread human rights violations is not currently condemned by the law of nations. (The Taliban would still be the lawful government of Afghanistan, had it not committed the error of harbouring Osama bin Laden.) However much Kofi Annan talks about the need to end impunity, tyranny is not a criminal offence.
The ultimate goal of the modern human rights movement must be to eliminate rulers, be they hereditary monarchs, military dictators, high priests or political despots who comprehensively violate the fundamental liberties of their subjects.27 In today’s world, that could only be achieved by a UN convention against tyranny, which would invalidate provisions in national constitutions preventing the prosecution of leaders for crimes committed while in office and would nullify, once and for all, amnesties and immunities traditionally accorded to those who wield the power of the state. It might go further, and establish an international tribunal empowered to examine the record of particular governments to decide whether their violations of fundamental rights are so systematic and widespread as to justify a finding of tyranny. That finding would serve both as a warning and as a warrant – a warning to change, or else to face the prospect of regime change, if necessary by a war the legitimacy of which could not be in doubt. The moral rightness of overthrowing Saddam Hussein and the wrongfulness in law of the means used to accomplish it, serves to emphasise the lasting importance of John Cooke’s tyrannicide brief.
How history imagines John Cooke: a fic
titious portrait from the National Portrait Gallery.
A typical illustration from Foxe’s Book of Martyrs: John Rogers, the protestant Vicar of St Sepulchre’s and Reader of St Paul’s is burned at Smithfield.
The traitor’s death: hanging, drawing and quartering: the execution of Guy Fawkes and the gunpowder plotters, 1605. Note how the victim is dragged to execution backwards on the hurdle: the smoke is from braziers heating the tongs for disembowelment.
Archbishop Laud dines on a Star Chamber delicacy: the ears of William Prynne.
‘Black Tom Tyrant’ Wentworth and a secretary, painted by Van Dyke in 1634, the year Cooke joined Wentworth’s administration in Ireland.
Puritans on parade: the people of God turn out for Strafford’s execution on Tower Hill in May 1641, as observed by Wenceslas Hollar.
The Tyrannicide Brief Page 46