The First Person to Prosecute a Head of State, John Cooke

Edward Coke, a champion of the English Common Law tradition, disagreed. He explained that the king was under God and the law. The king responded by attempting to punch Coke square in the face. Coke quickly dodged and prostrated himself on the floor, apologizing for questioning the king’s authority. The king’s word was thought to be equivalent to law, no matter how arbitrary or cruel. This was the world John Cooke lived in, but this would change dramatically over the next several hundred years.

History has no shortage of tyrants. The emperors of ancient Rome, the monarchs of medieval Europe, and the 20th-​century communist and fascist heads of state are examples of the cruelest and most callous humans who have ever seen the light of day. Worse yet, most tyrannies have gone unpunished. Philosophers from around the world have articulated a variety of theories about when it is legitimate to resist tyranny. Still, for most of human history, there was no legal framework for prosecuting a person for tyranny; it was a mortal sin but not a crime. But that changed in the 17th century when John Cooke, a common-​born lawyer, became the first person ever to prosecute a head of state for crimes against humanity.

A year before the king’s outburst at Edward Coke, John Cooke (no relation) was born in 1608 to a family of poor farmers living outside a small village named Burbage. Cooke’s family were Puritans, a religious minority seeking to cleanse the Catholic church of what they saw as empty ritual and superstition. Puritans were often discriminated against for their staunch beliefs, which conflicted with Anglican orthodoxy. Cooke’s family was not wealthy by any means. Cooke would most likely have remained a farmer for the rest of his life as his father and grandfather had been before but for the opportunity to study at Wadham College in Oxford, which had been founded with special assistance for the poor and needy. While there, Cooke studied an intense curriculum of rhetoric, logic, and moral philosophy and learned Greek and Latin, all at the tender age of fourteen.

Being a bright student, Cooke pressed on in his studies to become a lawyer, training at Gray’s Inn, one of the four associations in London for barristers and judges. Here, Cooke studied under men such as Richard Sibbes, who taught that the law was “no respecter of persons” (Robertson 2005, p. 31) Whether a noble or a commoner, all men were liable for their crimes, an idea that would profoundly impact Cooke’s view of the law. The curriculum was an arduous seven-​year-​long regimen, but by the end, Cooke was a fully qualified lawyer.

As Cooke began practicing as a lawyer, King James was succeeded by his self-​indulgent son Charles I, who spent his days locked away in various splendid halls living lavishly, ignoring any calls for reform. In 1215, English barons revolted against King John and implemented the Magna Carta, a legal document that formed the backbone of English common law. Most importantly, the Magna Carta guaranteed certain legal norms and rights, such as the idea that the king could only raise taxes with parliament’s consent. This allowed for a power-​sharing dynamic between parliament and the king, but Charles had no interest in sharing power. He dismissed parliament in 1629 and ruled without its input. He raised revenue through devious means such as unfair fines, selling monopolies and titles, and erecting customs duties without any say from parliament.

Parliament sat on the bench for eleven years while Charles ruled the country as if it were his own personal estate. By November 1641, parliament passed the Grand Remonstrance, a list of grievances against the king and his conduct during his “personal reign.” On top of this damning indictment of Charles’s reign, five members of parliament were suspected by Charles to have conspired with previous Scottish invaders. When the king arrived to arrest these five members of parliament in 1642, he was rebuffed by the rest of parliament, who refused to disclose their comrades’ location. Charles left London in a rage and quickly raised an army to stamp out the rebellious parliament he had long despised.

The subsequent civil war was among the most grueling and miserable conflicts the English people had ever seen. Estimates of total casualties vary, but perhaps one in ten English men were killed in the conflict, a higher proportion than in World War One based on the population at the time. But by 1646, after four years of conflict, the war was brought to a close thanks to the energetic leadership of Oliver Cromwell and the reorganized parliamentarian army.

While the war raged, Cooke made a name for himself as an advocate for reforming the legal system to be fairer to the population’s poorest. The legal system in Cooke’s day was rife with arbitrariness, abuse, and corruption. Many lawyers engaged in bribery, nepotism, and favoritism. Often, public officials sold positions to the highest bidder, not the most qualified candidate. On top of this, the law was wholly inaccessible to the layperson. Statues and reports were written in archaic Norman French, meaning that unless a person was well educated and had the time to learn a foreign language, they couldn’t understand the legal decisions that affected them. The legal process was also extremely slow, leading to hefty legal fees. Lastly, and most importantly, the law was fundamentally unequal. Those of status and wealth often avoided the gruesome punishments reserved for the poor, and if someone had an education, they could avoid their first penalty, a perk known as the benefit of clergy.

Cooke, horrified by these gross injustices, penned The Vindication of the Professors & Profession of the Law. Controversially, Cooke also argued that lawyers ought not to earn above a certain amount, given that their profession was about pursuing justice, not avarice. Cooke even urged lawyers to waive fees for the poor, believing the law’s protection should extend to everyone regardless of their wealth. Cooke condemned the benefit of the clergy and even argued that when educated people break the law, it is worse as they do not have the excuse of ignorance. A legal system that favored some over others was anathema to reason itself. Having experienced a slow justice system’s difficulties in a case involving his own family, Cooke knew that a speedy legal system would benefit the defendants by cutting legal fees and allowing lawyers to attend to more clients. Vindications was a damning indictment of the justice system, but it was also a vision of what the law could be in the future: a speedy, equal, and impartial system.

In another pamphlet known as the Poor Man’s Case, Cooke pleaded with legislators to show mercy and compassion to the poor. Being from a poor community, Cooke had great sympathy for the miseries of poverty. He noted that dire circumstances drove the poor to crime to make ends meet. Such criminals, due to circumstances, should be treated with a degree of mercy. At a time when any theft over a shilling was a hanging offense, Cooke’s mercy was a breath of fresh air.

For his advocacy, Cooke was nicknamed “White Cooke” for his ability to keep his conscience pure. Then, in 1649, Charles was imprisoned again for trying to start a second civil war. Parliament could no longer tolerate Charles as a monarch with even limited powers. Parliament had waged war to uphold Magna Carta and its commitment to the law’s supremacy over the will of kings. Leading members of parliament deliberated and decided to put the king on trial for his crimes against the English people, an unprecedented court case.

When this was announced, most lawyers fled London. If the new English republic failed, those who took part in the trial against the king would surely face reprisals. The punishment for treason was to be hanged, drawn, and quartered, a barbaric execution where the condemned were slowly hanged while their entrails were cut out and burned in front of their eyes. Afterward, the victim’s body would be cut up and displayed throughout the country.

Being one of the few senior lawyers who stayed in London, Cooke was quickly appointed solicitor general responsible for collecting evidence and writing the legal arguments for the king’s trial (though he would not have a leading part in the trial itself). That role was to be taken by Matthew Steele, who would be the face of the trial. However, whether by fate or cowardice, Steele claimed to be ill, and Cooke was quickly promoted to fill the void. Cooke would now sign the charge against the king and read it aloud in Westminster. It was upon his shoulders to show that neither divine right nor sovereign immunity as a head of state could save a leader from facing his just punishment. With limited time, Cooke hastily prepared his prosecution.

The trial began in earnest on the 20th of January, a mere ten days after Cooke’s ad-​hoc promotion. The halls of Westminster were packed with people despite being the largest hall in the country at three hundred feet long. Many were still ardently loyal to the king and were willing to do anything to stop this trial. As a precaution, the president of the court, John Bradshawe, had his cap lined with lead that could stop a bullet, and he wore armor beneath his robes in case an assassin attacked.

When the trial began, Charles took his place before a specially appointed group of judges. Charles was equipped in his full kingly wardrobe, covered in black silk, adorned with a medal of Saint George, and walking with a silver-​tipped cane.

The heavily armored Bradshawe opened the proceedings with a speech on why everyone had gathered. After Bradshawe’s speech, it was Cooke’s turn to read out the charge. Cooke stood to read the speech, and as he did, he felt a tap on his shoulder from the petulant King Charles, who prodded him with his cane, telling Cooke to wait. After a moment, Cooke began to read again. The king once more prodded the commoner with his cane. Cooke took no notice and started reading the charge for a second time. A furious Charles, not used to commoners standing against his will, smacked Cooke with his cane, dislodging the beautifully crafted silvertip that rolled along the floor.

Charles then beckoned for Cooke to stoop down and pick up his jewelry. Cooke did not, instead looking the king directly in the eyes and reading the charge aloud, which in the final paragraph reads, “And the said John Cooke on behalf of the people of England does for the said treasons and crimes impeach the said Charles Stuart as a tyrant, traitor, murderer and a public and implacable enemy to the Commonwealth of England” (Robertson 2005, p. 15). As Cooke read aloud the charge, Charles, with a sour face, knelt on the floor to pick up his cane’s tip. The symbolism was not lost upon the numerous commentators. A divinely ordained king was forced to bow to an earthly authority by a commoner no less.

Charles played his gambit when called upon to plead guilty or not guilty. He asked, “I would know by what powers am called hither” (p. 155). In effect, he denied the court’s legitimacy and refused to recognize them as a legitimate legal body, now a common tactic for dictators on trial. The second day of the trial played out much in the same manner. Charles believed this would put a spanner in the works of the trial and give him time to plan some scheme to wriggle his way out of the situation. But he made a massive blunder. After the second day of the trial, he talked to his escorts candidly, laughing about how he felt no guilt for any of the deaths due to the civil war. This was immediately reported to a perturbed Cooke, who saw that the king could not be trusted.

On the third day of the trial, Cooke, enraged by the king’s blasé attitude towards the dead, explained that it must be taken as an implicit confession of guilt if a prisoner does not plead. Charles was given another chance to plead, but Charles decided to attack the court’s legitimacy instead. With that, the king’s fate was sealed. Many judges were uneasy with prosecuting the king based on a pro confesso or implicit confession. To appease their consciences, Cooke called for two days worth of evidentiary sessions with a multitude of witnesses where Cooke rattled off the endless war crimes Charles had committed during the civil war, including the torturing of prisoners, the pillaging of innocents, and his secret conspiracies patched together by intercepted letters. Charles was to be executed. Few had thought it would come to this, and many men had entered the trial hoping for a more peaceful solution. But Charles, by not recognizing the court and evincing his blasé attitude towards the dead, had sealed his fate. King Charles was executed by beheading on January 30th, 1649.

Cooke never got to use his hastily written prosecution against the king. But Cooke published what he would have said just a week after the beheading in what was entitled King Charles. Cooke’s argument was a mixture of legal, political, and moral reasoning, all organized to make one point: that tyrants should not be able to live with impunity even after their reign has ended.

Cooke’s legal argument centers around the fact that the atrocities perpetrated during the Civil War were under Charles’s direct command, giving him what is now known as “command responsibility” in modern war crime trials. Cooke explains, “He that does not hinder the doing of evil, if it lies in his power to prevent it, is guilty of it as a commander thereof” (Hargrave 1776, p. 999). Charles could have at any time ended the atrocities, but he did not, and so was guilty as if he had ordered them himself.

For Cooke’s political arguments, he affirmed that the king’s position is not a person but instead an office. God does not ordain kings, but instead kings are chosen by people because, as Cooke wrote, “All just power is now derived from and conferred by the people” (Robertson 2005, p. 191). The people entrust kings to uphold the law and defend people’s rights. Many parliamentarians argued that if a king breached his duties, he could be deposed by the people. Cooke takes this a step further. Since the king is an office created by the people’s consent, they can withdraw their consent and depose a king, or even more radically, abolish the monarchy entirely if they so choose.

Lastly, Cooke employs a moral argument against tyranny. In Cooke’s words, natural law is “written in every rational man’s heart with the pen of a diamond” (p. 192) He believes that the conclusions of natural law it is blatant that when a person entrusted with power betrays trust and becomes an enemy of the people, they deserve severe punishment. He explains that the law of God and the law of nature is “written in the fleshly tablets of men’s hearts” and states that “if the King become a tyrant he shall die for it” (p. 192).

After the death of Charles, England was declared a republic, and the monarchy was formally abolished. Sadly, this is not the end of Cooke’s story. The Commonwealth of England, as a republic headed by no monarch, only lasted a meager eleven years before the king’s son, Charles II, was reinstated.

Charles maintained to the end that he was an innocent man who did nothing wrong. He played the part of the martyr to perfection. What might be surprising to modern observers is that many English people still had favorable opinions of monarchy. After all, they knew little of the alternatives. It is difficult to dislocate hundreds of years of propaganda from people’s minds. When replacing monarchy caused so much chaos, people wondered if it was better to go back to having a monarch.

When Charles II returned in 1660, he introduced a general pardon to stop any more bloodletting (except, of course, for those who had prominent roles in the death of his father). Cooke was quickly apprehended and kept in prison for four months. The trial of Cooke was deeply unfair, featuring a packed jury and subject to ever-​changing laws. Despite this, Cooke defended himself admirably by arguing that he had no choice in the matter. Lawyers, he argued, have to accept the cases given to them regardless of the damage it might do to their reputation. This is a principle we today call the “cab-​rank rule.” (Akin to taxi drivers, lawyers do not always choose who they serve). The royalist-​sympathizing judges charged Cooke with abuse. Eventually, Cooke was condemned to hanging, drawing, and quartering, the infamous punishment for treason.

Despite the gruesome end that awaited him, Cooke’s undying faith kept him calm and collected. When his wife was allowed to visit him before the execution, she cried loudly for her husband. Cooke replied to her and said: “let us not part in a shower…[for] in heaven all tears shall be wiped from our eyes” (p. 231). Cooke was killed on October 16th, 1660. He never renounced his heartfelt belief that he had done the right thing. In Cooke’s eyes, he had fought for the principle that all men are equal under the law, be they a king or pauper. In a letter he wrote while imprisoned, Cooke explained he dedicated his life “to that noble principle of preferring the universality before particularity” (p. 287): applying all laws to all people equally, be they paupers or kings. It is cruel that a man so dedicated to fairness died in such a deeply unfair manner.

It might seem like all of this was for nothing. After all, the republic failed, and the monarchy ultimately won. But history vindicated the sacrifice of men like Cooke. Parliament asserted itself and was never suppressed again. When Charles’s son, James II, attempted to revive his grandfather’s absolutist policies in 1688, he was overthrown and replaced by William of Orange in what is called the Glorious Revolution. In the aftermath of this revolution, the English Bill of Rights was established, providing the inspiration for the American Bill of Rights. The trial of King Charles established a precedent of utmost respect for legal principles and instilled the principle that rulers must uphold the duties owed to their subjects.

But Cooke has been hard done by history. Besides Geoffery Robertson’s wonderful The Tyrannicide Brief, few books delve into his life and role in the trial. It is a great tragedy that Cooke has been relegated to obscurity. Few have ended tyrants’ reigns, and even fewer have brought them to justice. Among libertarians, classical liberals, anarchists, and really anyone skeptical of state power, Cooke should be hailed as a heroic figure. Throughout his life, Cooke advocated for a more equitable system of law, one in which the powerful and wealthy could not dominate the rest of society with impunity. Cooke set an important precedent: no matter how high a person may be, the law is above them, even a king.