448 pages, Pantheon Books, ISBN-13: 978-1400044511
Geoffrey Robertson has a long and distinguished record as a barrister in
the field of human rights, and in The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold he turns constitutional
historian to raise awareness of the significance of one John Cooke for English
legal history. It is startling to realize that the only written
constitution England has ever had was a republican one, for the duration
of Cromwell's Protectorate 1649-1660. Its roots were shallow, and its
fate was sealed with the death of Cromwell himself during a ferocious
storm in 1658, widely touted as an omen. Nevertheless, the law and polity
of England under the Stuart kings were a sickening morass: James I,
founder of the dynasty, had indoctrinated his son Charles from boyhood
with the doctrine of Divine Right, under which the monarch was allegedly
above the law. This convenient theology was understood by Charles,
literally and unquestioningly. He did not even pretend to think that his
agreements were binding on himself; he was unencumbered by scruples in
the matter of raising taxation, he was indifferent to the death of one
in every ten of his male subjects in the civil wars that he incited and,
when pressed on such matters at his trial, he asserted sublimely that he
embodied the security of his people, whatever this concept may have
conveyed to him.
Robertson writes as an advocate: he is not trying to rescue Cooke's
reputation, Cooke having very little reputation in the first place (if Cooke had significant character-defects, we don't read
about them here and he emerges as something of a secular saint). However, the basic
objective seems to be to argue for Cooke's unrecognized importance in
the precedents he set. English Common Law is all based on case-law and
precedent. I'm not myself clear to what extent Cooke's judgments stuck
for posterity, but in the least he is presented as having a mind-set
ahead of his time. A liberal lawyer of our era has recognized a kindred
spirit in a less enlightened age; indeed, some of Cooke's views verge on
welfare socialism with legal aid for the poor and something like a
health service (unsurprisingly, this did not make him popular with
everyone). Giving judgments in favor of tenants in Ireland didn't endear
him to the rapacious landlords whose ideas of their own rights in this
matter were the mirror-image of the King's. Belief in religious
tolerance upset those who had recruited the Creator of Heaven and Earth
to their own vested interest or at least to their own ideas of how He
ought to see the matter. The Protectorate was certainly an improvement
on the Stuarts in the matter of basic fairness, but Cooke was always a
bit of a loner, and to stigmatize him as "radical" (on top of his
obscure origins) was condemnation enough for the self-complacent and
partisan.
Cooke's rigid belief in due legal process led him to accept as his duty
the prosecution of the King when barristers of greater eminence wisely
took cover. Robertson recounts the trial as a professional and
connoisseur, and trials make good drama. Charles was well advised, and
it is beyond a legal layman to judge of the legitimacy of the arguments
by which Cooke prevailed. Trials under the Stuarts, with their packed,
suborned and bullied juries and their rigging of the law, are a clear
affront to ordinary human notions of equity, but it's hard to see that
the King's trial was any model of modern rectitude or due process, either,
and Robertson seems to me to sail perilously close to arguing "That's
just the way it had to be". His prejudices are basically mine too, but
that is not really the issue. The doctrine that national leaders are
above the law was later re-enshrined in the Treaty of Westphalia, and it
took new legal ingenuity to get around that when it came to the
post-WWII trials (indeed, at the trial of the Japanese leaders the Indian
judge dissented from all the guilty verdicts as being victors' justice).
Part of Robertson's own self-brief is to measure Charles' trial against
those of modern monsters. How the trial of Saddam Hussein may have concluded
is anyone's guess, but conventional thought in 1649 dictated that if the prisoner
refused to enter a plea then that was equated with an admission of guilt, and
this cramped Cooke's style. Robertson rightly commends Richard May for directing a plea of not-guilty to be recorded
when Milosevic took the same line of refusing to recognize the court,
but faults him for allowing an indictment so long that the trial
promised to go on indefinitely, this being an error that the King's
judges had avoided. The Tyrannicide Brief makes for an excellent read for a layman: it is patently fair and the partisanship, though obvious, is
rational. How it will all play out for the next putative King Charles, I
can't tell, but I suggest this book for the defendant's reading list.
No comments:
Post a Comment