Taking the King to Court, John Cooke

Transcript:

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 states are all examples of the cruellest and most callous humans who have ever seen the light of day. Worse yet, most tyrannies have gone unpunished. Theories of when it is legitimate to resist tyranny have always been articulated by a variety of thinkers, but there was never a legal framework to prosecute a person for being a tyrant. Tyranny was a mortal sin, but not a crime. This all changed in the 17th century in England when a lowborn lawyer by the name of John Cooke became the first person in history to prosecute a head of state for crimes against humanity.

Early Life

In the 17th century, Europe was dominated by monarchs who believed they were divinely ordained to rule over their nations. The English King James I who reigned during the first half of Cooke’s life truly believed that his word was law. A famous example of his hubris occurred in 1609 in a privy council meeting involving Edward Coke, the champion of the common law tradition. In this meeting, James boldly asserted that he was the supreme judge above all others and that since he appointed the judges of England he could overrule their decisions and dismiss them at a whim. Coke disagreed, explained that the king was “under God and the law.” James responded to Coke’s argument by lunging across the room to punch Coke in the face. Coke quickly dodged the blow and prostrated himself before the king apologizing for even suggesting that there was any power more awesome than a king. James wrote a treatise on how to rule as a monarch for his son Charles in which he shows his die-​hard beliefs in his own divine power writing that the king is “the absolute master of the lives and possessions of his subjects; his acts are not open to inquiry or dispute, and no misdeeds can ever justify resistance.” The king’s word was law, no matter how arbitrary or cruel. This was the world John Cooke lived in, but this was slowly changing.

Cooke was born in 1608 to a family of poor farmers living just outside of a small village named Burbage. Cooke’s family were Puritans, a religious minority which sought to cleanse the Catholic church of all elements of supposed ritual and superstition. They were a religious minority which was often discriminated against for their staunch beliefs. Cooke’s family were not wealthy by any means and under usual circumstances, Cooke would most likely remain a farmer for the rest of his life as his father and his grandfather had been before. Thankfully in Oxford, a college had been founded for the poor and needy thanks to the donations of a wealthy protestant named Nicholas Wadham. Cooke was accepted into the college at the age of 14 and studied an intense curriculum consisting of rhetoric, logic, and moral philosophy, as well as learning Greek and Latin.

Cooke pressed on in his studies to become a lawyer training at Gray’s Inn. Here, Cooke studied under men such as Richard Sibbes who taught that the law was “no respecter of persons” whether a noble or a commoner all men were liable for their crimes. An idea that would deeply impact Cooke’s worldview. Sibbes wrote that “of all the men in hell, the torment of great men is most, because they had most comfort in this world. Mighty men shall be mightily tormented, that is all the privilege they shall have in hell.” The curriculum was an arduous seven-​year-​long process but by the end Cooke was a fully qualified lawyer ready to practice.

By the time Cooke had finished his education at Wadham James succumbed to a malaria-​like fever and was succeeded by his son Charles I.

Civil War

While Cooke began practising 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 and promptly ignoring any calls for reform. Back in 1215 English barons revolted against king John and implemented Magna Carta, a legal document which formed the backbone of English common law. Most importantly Magna Carta guaranteed certain legal norms and rights and importantly, that the king could only raise taxes through the consent of parliament. 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 their input. He raised revenue through devious means such as unfair fines, selling monopolies and titles, and erecting customs duties without any say from parliament.

For eleven years parliament sat on the bench, while Charles ruled the country as his own. By November of 1641 parliament passed the Grand Remonstrance, a list of grievances against the king and his conduct during his “personal reign”. On top of passing this damning indictment of Charles reign, five members of parliament were suspected by Charles to have colluded with Scottish invaders (previously). When the king arrived to arrest the five members of parliament he suspected in 1642, he was rebuffed by the rest of parliament who refused to disclose where their comrades had escaped to. Charles left London furiously and quickly began to raise an army to stamp out the rebellious parliament he had always hated.

Charles preferred outcomes in the conflict were quite simple, crush parliament and continue ruling the way he had before. The parliamentarians had a much less cohesive view of what they wished to achieve. None imagined an England without a king, their plan was to defeat Charles and put him back on the throne albeit with limited powers. They were fighting a man they wished to reinstall as the head of state. The Earl of Manchester has an excellent point which explains the bizarre nature of parliament’s war against the king, he stated that “The King need not care how oft he fights… If we fight 100 times and beat him 99 he will be King still, but if he beats us but once, or the last time, we shall be hanged, we shall lose our estates, and our posterities be undone.”

The subsequent civil war was one of the most gruelling and miserable conflicts the English people had ever seen. Estimates of total casualties are varied but some believe one in ten English men were killed in the conflict, a higher proportion than world war one based on the population at the time. But by 1646 after four years of conflict, the war was brought to close thanks to the enigmatic leadership of Oliver Cromwell and the reorganized parliamentarian army dubbed the new model army which was a much more professionalized and modern fighting force.

But this was not the end of civil strife. Charles was imprisoned under something akin to house arrest, but in a castle with servants and all kinds of luxuries. He spent his time scheming while the parliamentarians squabbled amongst themselves. By 1648 he convinced the Scottish to invade England and reinstall him on the throne while royalist forces rebelled internally. The Scottish invasion and royalist riots were quelled by Parliament’s new model army and once again Charles was imprisoned. By now it was becoming obvious that parliament could no longer tolerate a king who would not only lead his nation to civil war twice but even invite foreign forces to subdue his own subjects.

We have almost forgotten about the subject of today’s episode, John Cooke, so what was he doing while civil war engulfed England? Cooke did not take part directly, however, he published pamphlets supporting the parliamentary cause. In his political pamphlets, he rallied alongside the radicals of his day arguing for religious tolerance stating that “the sword has no capacity to settle religion.” In another pamphlet, he argued against the idea of forming a government based upon divinely ordained rule. Instead, Cooke articulated that all men were born free and that government can only be legitimately established through consent.

Vindication

The legal system of Cooke’s day was rife with arbitrariness, abuse, and corruption. Firstly lawyers themselves engaged in dubious practices nepotism and favouritism were rife in a system that did not promote merit but instead currying favour with powerful friends. Important legal positions in the government were often up for sale by the highest bidder. Secondly, the law was wholly inaccessible to the layperson. Statues and reports were written in Archaic Norman French meaning unless a person was well educated and had the time to learn a foreign language, they would barely understand the legal decisions that affected them. Thirdly, the law was not equal, those of status and wealth often avoided the gruesome punishments which were reserved for the poor. Those who were educated had a get out of jail free crime on their first penalty, this was known as the benefit of the clergy. Lastly, justice was slow, this meant that legal fees were racked up as cases stretched on endlessly.

Cooke a lover of fairness, was horrified by the gross injustices perpetuated throughout the legal system and penned The Vindication of the Professors & Profession of the Law, an attack upon the injustices which plagued the system. Controversially, Cooke also argued that lawyers ought not to earn above a certain amount. Their profession was about justice, not money. Cooke even urged lawyers to waive fees for the poor as he believed the protection of the law should extend to everyone, regardless of their wealth. Cooke condemned the benefit of the clergy and even argued that those who are educated breaking the law is worse as they do not have the excuse of ignorance. A legal system that favoured some over others was anathema to reason itself. Having experienced the difficulties of a slow justice system over a case involving his family, Cooke knew that a speedy legal system would be better for everyone. It would benefit the defendants by cutting down on fees and allow lawyers to see 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 fair system presided over by those of merit and integrity men such as Cooke who were in short supply.

Poor Man’s Case

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 himself Cooke had great sympathy for the miseries of poverty. He noticed that many criminals were driven to crime because of circumstances and he argued that in these cases people should be treated with a degree of mercy. At a time when any theft over a shilling resulted in a hanging, Cooke’s mercy is a breath of fresh air. Cooke even argued for a loosening of medical licenses as a means to increase the number of doctors available for the poor and even defended a doctor who had cured patients during a plague without a license.

From what we have learned about Cooke it is no surprise he was nicknamed White Cooke for both his adherence to keeping his conscience pure and his possibly pasty complexion. He acted with integrity, waived fees for the poor, and never shirked away from doing what he believed was right. He was a deeply pious man, in his personal letters he discusses his faith in God planning all things for a greater purpose, Cooke’s greater purpose was just around the corner in January 1649.

Now we come to the drama of Cooke’s life. In 1649 Charles is imprisoned yet again for trying to start a second civil war. Parliament could no longer install Charles as a monarch with limited powers, he had proven time and time again he was an untrustworthy and devious person who would do anything to see himself back in power. The easy solution was to kill Charles, poison his food or kill him during one of his many botched escape attempts. But the war parliament had waged was about upholding Magna Carta and a commitment to the law over the will of kings, lex before rex. Revenge was not legitimate, justice was and to this end, parliament committed to putting the king on trial for his crimes against the English people, an unprecedented affair.

When this was announced most lawyers fled London. Taking part in a kings trial was a dangerous endevour. If the new English republic failed those who took part in the trial against the king would surely face retributions for treason. The punishment for treason was well known, hanging drawing and quartering, a barbaric execution where the condemned were hung and their entrails were cut out and burned in front of their eyes. After the punished had died their body would be cut up and displayed throughout the country. So it is no surprise most lawyers did not want to touch this monumental case with a ten-​foot pole lest their guts be displayed in public.

Being one of the few senior legal minds who stayed, Cooke was appointed as solicitor general, he was in charge of collecting evidence and writing the legal arguments, but he would not have a leading part in the trial. The prosecution was to be headed by Matthew Steele who would be the face the of trial. However, by divine providence 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 or sovereign immunity as a head of state would save a leader from facing his 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 Westminister were packed with people, as the largest hall in the country at the time being three hundred feet long. This was the perfect place to stress the public nature of the trial, there were not to be any shady underhanded tactics. Justice was to be done in the light. But this presented problems, many were still ardently loyal to the king and were willing to do anything to stop this trial. The president of the court John Bradshawe had his cap lined with lead to stop a bullet and wore armour beneath his robes in case an assassin attacked at the advice of his wife. The acoustics of Westminster were infamously bad so reporters were allowed to form a small press gallery at the epicentre of the trial meaning we have detailed accounts of the events.

With everything in place, the trial could begin. Charles took his place in front of a specially appointed group of judges. He was dressed like a king, covered in black silk with the medal of Saint George walking with a silver-​tipped cane. The heavily armoured Bradshawe opened up the proceedings with a speech on why everyone had gathered today. After Bradshawe’s speech was over 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 Charles cane who told him to hold. As he began to read again Charles tapped him yet again with his cane demanding he hold. Cooke took no notice and began reading a second time. A furious Charles smacked Cooke with his cane dislodging the beautifully crafted silver tip. The king beckoned for Cooke to stoop down and pick up his jewellery. Instead, Cooke looked the king directly in the eyes and read the charge aloud which in the final paragraph read “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.” As Cooke read aloud the charge, king knelt to the floor to pick up his cane’s tip. The symbolism was not lost upon commentators, the king had just bowed to earthly authority. For the first time, Cooke the son of a farmer had made a king bow to the laws of men.

When called upon to plead guilty or not guilty the petulant king played his gambit. He asked, “I would know by what powers am called hither.” In effect, he denied the legitimacy of the court and refused to recognize them as a legitimate legal body. The second day of the trial played out much in the same manner. Charles would state time and time again “A King cannot be tried by any superior jurisdiction on earth.” Charles believed that this would put a spanner in the works of the trial and give him time to plan some form of scheme. But he made a massive blunder. After the second day of the trial, he talked to his escorts candidly laughing that he felt no guilt for any of the deaths that had occurred due to the civil war. This was immediately reported to a perturbed Cooke who began to see that the king could not be reasoned with.

On the third day, Cooke, enraged by the king’s blase attitude towards the dead, sprung up and made his own gambit. He explained that if a prisoner does not plead it must be taken as an implicit confession of guilt. Charles was given yet another chance to plead in which he decided to instead yet again attack the legitimacy of the court. And with that, the king’s fate was sealed. Many judges were uneasy with prosecuting the king on the grounds of a pro-​confessio or implicit confession, to satiate their consciences Cooke called for evidentiary sessions where he rattled of the endless war crimes Charles had committed during the 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, many men had entered the trial hoping for a more peaceful solution, but Charles not recognizing the court and his Blaise attitude for the dead sealed his fate.

Charles was executed by beheading on January 30th 1649. Cooke never got to use his hastily written but magnanimous prosecution against the king. But thankfully Cooke published what he would have written in what he entitled King Charles, His Case published a week after the king had been beheaded. Cooke’s argument is a mixture of political, legal, and moral reasoning all organized to make one emphatic point, tyrants should never live with impunity after their reign has ended. Cooke’s legal argument centres around the fact that the atrocities perpetrated during the civil war were under the direct command of Charles giving him what is now known as command responsibility in war crime trials. Cooke explains that “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.”

Cooke constantly states that the position of king is not a person but instead an office. Kings are not ordained by God but instead chosen by people because “all just power is now derived from and conferred by the people.” Kings are entrusted by the people to uphold the law and defend people’s rights. Many parliamentarians argued that if a king breached his duties he was liable to be deposed by the people. Cooke takes this a step further since the king is an office created by the consent of the people, they can withdraw their consent and depose a king or even abolish the monarchy entirely if they so choose at any time. Lastly, Cooke employs a moral argument against tyranny. The natural law which in his words “written in every rational man’s heart with the pen of a diamond” that when a person entrusted with the preservation of peoples liberties betrays their trust and becomes an enemy of the people they deserve severe punishment. He explains that the law of God and the law of nature “written in the fleshly tablets of men’s hearts” states that “if the King become a tyrant he shall die for it.”

England was declared and republic and monarchy was formally abolished. Sadly, this is not the end of the story. The new republic ironically kept afloat by the de-​facto monarch Oliver Cromwell was doomed. The Commonwealth of England headed by no monarch only lasted a meagre eleven years before the king’s son Charles II was reinstated, monarchy firmly entrenched itself in English life yet again. There are a variety of factors that could explain the fall of the English republic, what I believe is most important is the ideological aspect.

Charles maintained to the very end that he was an innocent man who did no wrong. He played the part of the martyr to perfection. Surprisingly many English people still had favourable opinions of monarchy, after all, they knew little else of the alternatives. It is difficult to dislocate hundreds of years of propaganda from people’s mind and when the replacement for monarchy had caused so much chaos people started to think maybe it is better to just grin and bear it with a monarch presiding over everything. Simply put liberty is difficult.

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 4 months. The trial of Cooke was deeply unfair with a packed jury and ever-​changing laws. Despite this Cooke defended himself admirably by arguing that he had no choice in the matter, lawyers 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 choose who they serve. The royalist judges never dealt with Cooke’s nuanced arguments and simply hailed him with invective and abuse. Cooke was condemned to hanging drawing and quartering, the 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 held her and said: “let us not part in a shower…in heaven all tears shall be wiped from our eyes.” Cooke died but never renounced his heartfelt belief that he had done the right thing. The best way to sum up Cooke’s life’s work is in his own words. In a letter, he wrote while imprisoned he was dedicated “to that noble principle of preferring the universality before particularity.” 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 an unfair manner.

This might seem like a hopeless ending, the republic failed and heroes like Cooke died. But history vindicated men like Cooke’s sacrifice. Parliament asserted itself and was never suppressed again. Charle’s I second son was driven from England when attempting to revive absolutist policies in 1688. What is called the Glorious Revolution of 1688 established the English bill of rights which eventually inspired the American bill of rights could not have been established without the king’s trial. This trial established a precedent of utmost respect for legal principles and upholding the contract between ruler and subject. The trial of Charles in 1649 deified the rule of law as the greatest jewel of England.

Cooke has been hard done by history, few history books delve further into his life besides a quick mention of his name while discussing the trial. It is a great tragedy Cooke has been relegated to obscurity. Few have ended tyrants’ reigns, even fewer have brought them to justice. And in this regard Cooke set an important precedent, no matter high a person may be, the law is above them, even a king. Thanks to the precedent set by Cooke, criminals such as Saddam Hussein and Slobodan Milošević were brought to justice for their wrong doings. When Cooke first entered Oxford his status was recorded as Plebeian. But this plebeian was an admirable legal reformer, a genius legal mind, and the first person to prosecute a head of state. Overall, not a bad performance for a plebeian.