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Off with his head

This article is more than 18 years old
Geoffrey Robertson offers a brilliant defence of a fellow lawyer in The Tyrannicide Brief, says Anthony Holden

The Tyrannicide Brief
by Geoffrey Robertson
Chatto & Windus £20, pp429

The legal case soon to be mounted against Saddam Hussein can be traced back, according to human-rights lawyer Geoffrey Robertson, to that argued against King Charles I in 1649. How to try a ruler supposedly above the law, in whose name it is administered? Only one lawyer in all England had the combination of courage and guile to find a successful formula: John Cooke. Eleven years later, come the Restoration, he was hanged, drawn and quartered for his pains.

Robertson has come up with that desperately rare thing: a subject worthy of biography who has never before been addressed and, to his huge advantage, in his field. The result is a work of literary advocacy as elegant, impassioned and original as any the author can ever have laid before a court. The son of a poor Leicestershire farmer, John Cooke won his way to Oxford and the Inns of Court, where he made a reputation as a trailblazing liberal lawyer with a passionately puritan conscience.

As Robertson tells it, Cooke was the first to assert the accused's right to silence, the first to advocate legal aid, even a national health service, and other legal and social reforms that would become this country's democratic hallmarks. Tough on crime, this Roundhead was also tough on its causes, among which, he was the first to argue, is poverty.

As other lawyers ran for cover, Cooke used the 'cab-rank rule' still in practice today to justify his acceptance of a brief requiring as much courage as craft. Made solicitor-general for the Commonwealth, he was charged by parliament with devising a means by which neither divine right nor sovereign immunity could afford Charles impunity for oppressing his people. Cooke came up with a charge of high treason based on the King's 'tyranny': depriving his subjects of their civil rights and mass murder on a scale that would now be called ethnic cleansing.

Cooke's landmark prosecution led to more than the execution of a monarch with supposedly divine protection; it secured parliamentary supremacy and upheld the rule of law, affirming the independence of judges and opening the brief republican era in which were forged many of the democratic ideals still cherished by most of the modern world.

Any rational people, as Robertson points out, would take pride in 'this critical moment for ideological progress'. Instead, it has been 'the British way' to 'ignore or deplore' Charles's trial, rewriting history to date liberty from the 'Glorious Revolution' of 1688, 'a milksop affair', in truth, 'neither glorious nor revolutionary, which merely retrieved from the fall of the Stuarts some of the gains made in 1649.'

One of Robertson's central points, as he painstakingly corrects centuries of bigoted historical misrepresentations, is that Cooke's prosecution of the King set the precedent for trials of such recent heads of state as Pinochet and Milosevic, 'who attempt [just like Charles I] to plead sovereign immunity when arraigned for killing their own people'. Bush and Blair, as he suggests, might 'more credibly' have based their case against Saddam on 'the right to punish a tyrant who denies democracy and civil and religious liberty to his people'.

When Charles's son was restored to the throne, soon after the death of Cromwell, his father's trial was seen as an act of treason and his legal execution as murder. Cooke's prosecution for these crimes was rigged; Robertson paints it as a Stalinist show trial of grotesque proportions.

There has, hitherto, been no serious, let alone accurate, study of either trial; to this day, the Inns of Court have 'striven to cover up their republican past by genuflections to the royal family'.

Cooke has been misrepresented by history as 'an embittered Puritan fanatic' or 'a dodgy lawyer prepared to do the dirty work for the rising Cromwell'. Robertson shows how contemporary historians - he names Antonia Fraser and Christopher Hibbert - still perpetuate the distortions of the 'ranting royalist' JG Muddiman in his 1928 account of the case.

Charles II attended the disembowelling of Cooke, still alive after he had been part-hanged and castrated. The body of 'Britain's most radical lawyer' was then thrown in an unmarked mass grave while his head was put on display at the Palace of Westminster. A royal pardon may seem 'inappropriate', as Robertson grants, but one of today's radical lawyers succeeds magnificently in his mission to commemorate the 'integrity and vision' of his neglected forebear.

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