Farewell Sovereignty

Stephen Sedley

  • The Tyrannicide Brief: The Story of the Man who Sent Charles I to the Scaffold by Geoffrey Robertson
    Chatto, 429 pp, £20.00, October 2005, ISBN 0 7011 7602 4

When I read for the English Bar in the 1960s, the legal history lecturer stopped when he reached 1649 and explained that he was now moving directly to 1660, because everything that had happened between the trial of the king and the restoration of the monarchy was a nullity. By this simple and efficient process John Cooke, the barrister who prosecuted Charles I, has been airbrushed from history, save by a handful of historians of the trial who have written him off as a hack. Geoffrey Robertson has set out to rescue him from the enormous disregard of posterity, and from the ignominy of his death in 1660 by hanging, drawing and quartering.

Robertson is a practising barrister and has served as the president of the Sierra Leone war crimes tribunal. He is also a media personality, a status which tends to sit uneasily with scholarship. But, if one forgives the unnecessary double entendre of its title and its sometimes excessively feisty prose, this is a scholarly book. To say scholarly is not, of course, to say impartial: writing as counsel for Cooke’s defence, Robertson launches some damaging salvos at dismissive historians. The worst of them by far is J.G. Muddiman, a passionate monarchist (and a descendant of Henry Muddiman, known to Pepys as ‘an arch-rogue’, first an apologist for the Rump Parliament and then one of the Restoration’s principal political witchhunters) who edited the trial of Charles I for the Notable British Trials series and whose treatment of Cooke is a farrago of prejudice and error.

Robertson’s purpose is twofold: to write the first biography of Cooke, and in doing so to vindicate the regicides, Cooke prominent among them, as precursors of modern international human rights law. This is not quite as far-fetched as it sounds. The crime of tyranny for which Charles was tried and executed is now, Robertson argues, recognised as an offence justiciable in every country’s courts. International law may meanwhile have substituted sovereign immunity for divine right, but human rights law has since 1946 gradually broken through this shield, placing the worst crimes of rulers against their people within the reach of justice and beyond impunity. It may have been, as Robertson says it was, the ruling of the House of Lords that Spain could extradite Pinochet on charges of torture which turned the tide of head-of-state immunity on which Pol Pot, Idi Amin and a good many other despots had managed to sail away to safety; but it should not be forgotten that Chile’s own legal system was already investigating charges against its former dictator. Robertson may not be right in his claim that Slobodan Milosevic is the first ruler since Charles I to stand trial before a full court for crimes against his own people (Jean-Bédel Bokassa was tried, convicted and sentenced to death in 1987 for treason against his own people, though he eventually walked free), but he is right to point out that both Milosevic and Saddam Hussein have confronted their tribunals with the same question as the Stuart monarch put to his: by what authority do you try me? The bald answer in each case has been the same: the authority of the power that has supplanted yours.

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