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 this book 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. Certainly, if Cooke had significant character-defects we don't read about them here and he emerges as a bit of a 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 at 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 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's trial against those of modern monsters. How the trial of Saddam Hussein may have concluded is anyone's guess, but convention in 1649 dictated that if the prisoner refused to enter a plea that was equated with 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. Pinochet may be too old and gaga to stand trial, but at least the concept of immunity for a head of state seems to have been rejected in his case too.
It makes an excellent read for a layman. Proof-reading in general is good, although "elemental" has crept in for "elementary" at one point, as well as the solecisms (now wearily familiar) of "beseeched" for "besought" and 'wreaked' for "wrought". Oxford has a Christ Church but no Christchurch College, Ormonde alternates with Ormond, and was the lover of Mary Queen of Scots Riccio, or Rizzio? The book 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 his reading list.