Book Review: The Tyrannicide Brief

Geoffrey Robertson’s 2005 work is more than a biography of John Cooke, the man who successfully prosecuted Charles I of England for treason for making war against his own subjects. It is also an attempt to restore balance to the way English historians have treated the Revolution that took place in the late 1640s and the Commonwealth that, for approximately a decade, provided the government of England.

For example, many histories of the development of human rights appear to skip from the Petition of Right, assented to by Charles in July 1628, to the so called Glorious Revolution of 1688 which brought William of Orange and his wife Mary to the throne of England to replace Mary’s father, James II. The Bill of Rights of 1689, passed by Parliament and agreed to by William and Mary, is seen as true commencement of Constitutional Monarchy in Great Britain and the source of liberties on which modern democratic States pride themselves.

The earlier Revolution, like its French counterpart, failed to deliver all that its supporters promised and hoped for and was followed by a Restoration of the monarchy it replaced. Unlike the French Revolution, however, the English counterpart has not been honoured for the ideas on which it was based, ideas which have been influential in later times and across the world.

A biography of John Cooke is a suitable vehicle for this attempt to redress the neglect of historians. For John Cooke, himself, was the source of many political and legal ideas that promised a fairer society and were well before their time. And John Cooke, despite his central role as a prosecutor in a trial that led to the death of a king, was a man of great faith in his Puritan God; a man of great humility; and a man who served justice without fear or favour in the way that modern judges undertake, by oath or affirmation, to serve.

The ideas which John Cooke championed in a series of pamphlets published between 1646 and 1652 included a plan for a legal aid system funded by pro bono work provided after sufficient income for the year had been earned by the very well-heeled and successful barristers of the time. A second proposal involved a form of national health delivery.

The ideas regarded of greatest importance by Mr. Robertson, however, derive from the circumstances of the King’s trial and received expression in Cooke’s conduct of his defence in his own trial for treason conducted after the Restoration of Charles II. The first forms the most fundamental pillar of the rule of law. The trial of Charles I challenged the notion that most identifies the Stuart ideology, that Kings ruled by divine right and were above and not answerable to the law. The prosecution of Charles I proceeded on a very different basis, that kings were appointed to their office to rule for the benefit of their people and in accordance with the laws.

This principle found renewed expression in the trials at Nuremberg and lies behind the prosecution of Slobodan Milosevic; the proceedings brought against former General Pinochet; and forms the philosophical basis of the International Courts of Justice established to provide justice in the case of war crimes and State crimes including genocide, crimes against humanity, and crimes committed by tyrants against their own people. It is almost accepted generally, in the twenty-first century, that no tyrant has immunity from justice and all tyrants are answerable for their wrongs whether committed against their own people or those of other nations.

John Cooke, in ten short days, assembled the evidence and drafted the charge on which Charles was convicted. In doing so, Cooke was the first to state and act upon the principle that no one is above the law. This principle is a key aspect of the rule of law at home and the efforts of the international community to bring justice to tyrants wherever they are found.

The second key principle seems much more mundane. It is the cab rank rule by which barristers conduct their respective practices. It was at his own trial, which ended dismally for him, that John Cooke so clearly articulated the rule that says that barristers must accept briefs offered to them without picking and choosing among the people and causes for whom they are asked to appear. It formed his defence: namely, that he had no choice but to accept the brief to prosecute the king once it was offered to him and that, having accepted the brief as he must, he conducted the prosecution fairly and without malice.

Mundane as it may be, the cab rank rules remains crucial in providing equal justice to all. Without the cab rank rule, those accused of unpopular crimes would have no guarantee of representation and what representation might be available might often be second rate.

The Tyrannicide Brief, therefore, is a tale for our times.

It is much more, however, than a modern morality tale. It is certainly not a dry lesson in history. For Geoffrey Robertson is a story teller and dramatist of great talent and he brings all those skills to this work. The trials unfold with great drama. The life of barrister Cooke is told against the background of the historical events reverberating around him. The complexity of those events is not avoided but rather managed without impinging at any time upon the importance and excitement of the biographical narrative.

This book was given to me by a friend whose chambers broke from the pattern of taking the names of great English or Australian judges and took the name of John Cooke. I remained unconvinced that the prosecutor of Charles I was a suitable historical figure after whom to name one’s workplace for the next thirty years. The book remained unread for some time.

I was wrong in being unconvinced. I am glad I have now partaken of the product of Mr. Robertson’s painstaking work. I now think that The Tyrannicide Brief is an essential book for those in the law who wish to understand the origins of the principles that underlie and guide our work in the service of justice.

It is also an extraordinarily exciting read.2

Stephen Keim SC

Footnotes

1. Chatto & Windus is an imprint of Random House. See http://www.randomhouse.co.uk/catalog/imprint.htm?command=search&db=main.txt&allreqd=T&max=1&PubDatetype=date_dmy&bwimprintdata=Chatto&Pubdatesort=1&Pubdatesdir=de&Titlesort=2.
2. The recommended retail price is a mere $35.00. The Australian arm of the publisher for direct buying and the webpage devoted to The Tyrannicide Brief may be found at http://www.randomhouse.com.au/Books/Default.aspx?Page=Book&ID=9780701176020.