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November 16, 2006

Geoffrey Robertson fails to justify the execution of Charles I: The Tyrannicide Brief: The Man Who Sent Charles I to the Scaffold - Geoffrey Robertson

Posted by Matthew Omolesky

The Tyrannicide Brief: The Man Who Sent Charles I to the Scaffold
by Geoffrey Robertson
London: Chatto and Windus, 2005 (Paperback, Vintage, 2006)
Hardback, £20; Paperback, £8.99

The sentence of death passed down by the Iraqi High Tribunal in Saddam Hussein's war crimes trial has appropriately captured recent headlines, but in light of the experiences of men like Slobodan Milosevic, Charles Taylor, and Augusto Pinochet, it is all too easy for the public to lose sight of just how extraordinary it is that tyrants no longer have recourse to the ancient principle of sovereign immunity.

A recent book by the Australian-born human rights lawyer and jurist Geoffrey Robertson, The Tyrannicide Brief, explores in provocative fashion the first significant chink in the armour of sovereign immunity, the trial and execution of King Charles I, and specifically the often overlooked role played by Cromwell's hand-picked prosecutor, John Cooke.

The Tyrannicide Brief makes every attempt to render the trial of Charles I in 1649 relevant to the present day. For instance, state prosecutors and defence counsels ran the risk of assassination by Cavalier or Roundhead fanatics, just as Iraqi lawyers do today. John Cooke himself, a promulgator of various tracts and pamphlets advocating progressive schemes from nationalized health-care to pro bono work for barristers, is (perhaps unfortunately) likened by Robertson to a

seventeenth-century Michael Moore, citing Deuteronomy.
Another contemporary issue presented is that Cooke's legacy of tyrant-killing, in Robertson's opinion, is being undermined by the Bush administration's present opposition to the International Criminal Court. Indeed, Robertson writes, it is:
a crowning irony that the Bush administration, for all its proclaimed Puritan religiousity, is seeking so obsessively to destroy one institution that can deliver on Cooke's proposition that rulers who oppress their people must be brought to justice.
There are to my mind a number of things wrong with this statement, but at the very least it should be recognized that we are dealing with a very odd bird in Geoffrey Robertson. How many of President Bush's critics would fault him for being insufficiently Cromwellian?

As much as Robertson strives to make Charles I's trial relevant to the modern age of human rights tribunals and universal jurisdiction, the crux of his book is an attempt at historical revisionism. No longer should we regard John Cooke as a fanatical Puritan and the ringleader of a show-trial. Rather, Cooke's "tyrannicide brief" marks the beginning of the end of despots' pretensions that state authority allowed them to make war upon their subjects with impunity. Conversely, the trial that led to Cooke's own execution upon Charles II's restoration was:

"victor's justice", a barbaric act of royalist revenge to satisfy the blood-hatred of Charles II.
Thus, Robertson's revisionist offensive, however bold, leaves him in an exposed position. His grandiose claims require nothing less than to prove Charles I's trial and execution wholly legitimate.

Robertson correctly pinpoints twin royalist objections to Charles I's trial, best summed up by Cromwell's ally Algernon Sidney:

First, the King can be tried by no court; secondly, no man can be tried by this court.
The first prong of the royalist legal argument was that Charles I had complete sovereign immunity, and that a Rex v. Rex tribunal was inconceivable. The second prong was that the court that would try Charles was illegitimate.

On the first count, Robertson has an easy enough time of it. Modern society has rejected most notions of sovereign immunity, at least as regards gross war crimes, crimes against humanity, and genocide. In the seventeenth century the notion carried considerably more weight, but, as Sir Edward Coke had written,

Magna Carta is such a fellow he will have no sovereign.
In other words, Charles I was still subject to the rule of law. Still, this was the defense that Charles chose, demanding in his trial to know by
what power I am called hither…I would know by what Authority, I mean, lawful; [for] there are many unlawful Authorities in the world, Theeves and Robbers by the high ways.
The deposed king's demand went unanswered; hence he declined to enter a plea. Defendants who entered no plea were automatically guilty. It was as simple as that.

But did this court have prima facie competence? This was the second prong of the royalist objection, and Robertson struggles mightily with this one. Cromwell had rejected the easiest solution, summary execution, and a military tribunal was likewise rejected. Military justice would in fact have been appropriate on a certain level, as the king was a vanquished prisoner of the New Model Army. But the trial was not to be "done in a corner", and a public trial was chosen. Cromwell and his prosecutor declined to give the king a jury trial, however. Robertson defends the decision in the following terms:
[It was] not because they feared the outcome but because the common law denied juries (made up of commoners) to those of royal blood and they wanted to be as legalistic as possible in this trial without precedent.
For a trial whose goal was to spill royal blood, and abolish the very idea of royalty, this deference to Charles I's status doesn't ring true. More likely is the historian Simon Schama's explanation:
Anyone with even a passing acquaintance with the history of the previous century might have known that it was a bad idea to put members of the house of Stuart on trial. Exacting and nimble displays of legal punctiliousness, followed by a dignified preparation for martyrdom, were their forte.
Robertson, having justified Charles I's denial of jury trial, must then defend the legitimacy of the Rump Parliament. How Robertson wrote with a straight face that the infamous Rump:
was in fact the first modern enunciation of democratic principles by a legislature purporting to embody it
is quite beyond me, but he managed it just the same.

This is the fundamental flaw of The Tyrannicide Brief. It attempts to cast as heroic events those which were anything but, however seminal they may have been. Cooke himself was a devout man and a conscientious barrister, but his client, Cromwell, was not a crusader for human rights. Charles I was branded a tyrant, a traitor, and a murderer, but which of those descriptors could not be used of the man for whom John Cooke worked? Recall that the year Charles I was executed was the very year of the enormities that occurred at Drogheda-on-the-Boyne, where royalists were indiscriminately massacred in a manner far exceeding anything Charles I did in his reign. Robertson, while acknowledging that atrocities were committed on both sides during the Civil War, and admitting that the seventeenth century was an era in which
post-Renaissance minds could be moved by the poetry of Shakespeare yet approve of the most savage torture in the interests of public order,
elides over the inherent contradictions at the centre of his revisionist argument. Charles I's trial was not a vindication of human rights, it was the same sort of victor's justice that was employed when John Cooke and the regicides met their end in 1660. I am reminded of Montesquieu's Persian Letters, in which it is written that:
The English say that one of their kings, having defeated and taken prisoner a prince who was a rival for his crown, wanted to reproach him for his disloyalty and treachery. "It is only a moment ago", said the unfortunate prince, "that it was decided which of us is the traitor". A usurper will declare that anyone who has not persecuted the country like him is a rebel; and in the belief that there is no law where he cannot see a judge, he causes the caprices of chance and fortune to be venerated as if they were decrees of Heaven.
Robertson, despite his convincingly sympathetic portrayal of John Cooke the man, cannot fully rehabilitate the trial he orchestrated. Yet The Tyrannicide Brief should provoke readers into considering precisely what victor's justice is, and whether or not its unsentimental honesty is perhaps preferable to idealistic but flawed tribunals. In this sense, Robertson does indeed accomplish his goal in making the tenebrous events of 1649 immediately relevant to 2006.

Matthew Omolesky recently received a master's degree in Diplomacy and International Relations from the John C. Whitehead School of Diplomacy, and is currently a Juris Doctor candidate pursuing a certificate in international trade and development at The Ohio State University, Columbus, Ohio.

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Two things I remember from my school history about Charles I. One was that he raised money by “selling titles to rich men”. It seems that our present-day Scotia Nostra are in the same business.

The other thing is that he claimed the “Divine Right of Kings”. Now even if one takes Sir Winston Churchill’s view and regards Cromwell as even worse than Richard III, one is still faced with the fact that God historically punished the transgressions of Israel by raising up real baddies against them (for example, the Babylonians, as Habakkuk pointed out). Claiming the Divine Right was going beyond the limits of human law, and so arguments about the legality of his trial are rendered void, as squabbles over the wave or particulate nature of light were nullified by the arrival of quantum mechanics.

Posted by: Robert H. Olley at November 17, 2006 06:45 PM
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