Legal History: The story of a prosecutor who won the case but lost his life

By Paul Mark Sandler
BridgeTower Media Newswires

Civil wars raged in England during the mid-1600s, caused by the uprising of the people against the tyrannical rule of King Charles I. He infuriated the Puritans, who opposed the close resemblance of the English Church to Catholicism. He often dissolved Parliament when its members disagreed with him, and imposed taxes without their approval. He fired the chief justice for questioning the legality of certain loans to the monarchy, and he purportedly violated the Magna Carta for imprisoning people without due process of law.

In 1642 Charles attacked the forces of Parliament, and after four years of fighting, he was imprisoned in his palace, where he started a second civil war. Oliver Cromwell emerged, and the war ended unfavorably for the king. But soon, he began orchestrating a third war. This time, some members of the House of Commons sought a power sharing plan with the monarchy, infuriating those opposed to the king’s unlawfulness.

After succeeding in extinguishing the plan of compromised power sharing, Parliament was determined, in 1649, to put Charles on trial for treason. This was unprecedented.

A new court was created for the trial — the High Court of Justice. The indictment included charges of murder, treason, and evil practices against England, including warring against Parliament and the people of England.

John Cooke (1608-1660) would take on prosecution of the king. He was a 40-year-old lawyer and solicitor general of England. He was known for fighting for liberal causes in court, once arguing it was contrary to natural law to compel a person to incriminate himself.

This case against the king would make Cooke the first lawyer in history to prosecute the head of state for crimes against the people. Many of his friends were concerned for his safety, fearing revenge from supporters of the monarchy.

The trial began on Jan. 20, 1649. Presiding was Justice John Bradshawe and 47 commissioners. The first day of the trial, Charles was brought into the courtroom, and as Cooke read the charges, the king thrashed Cooke on the head with a cane.

As detailed in Geoffrey Robertson’s “The Tyrannicide Brief,” Cooke ignored the incident and proceeded: “I do, in the name of the people of England, exhibit and bring into this court a charge of high treason and other high crimes whereof I do accuse Charles Stuart, King of England, here present.”

The king then demanded to know by what authority he was brought to the court. The response by Bradshawe was “by the people of England.”

Charles repeatedly and obstreperously challenged the authority of the court to proceed against him, but refused to enter a plea one way or another. Although he repeatedly challenged the right of the court to put him on trial, the king surprisingly mentioned to his jailors that he had no regret for the thousands of deaths he had caused.

With the king refusing to plead, the prosecution under existing law could not present evidence, as guilt was assumed. But the court did permit Cooke to call more than 30 witnesses in a closed session. Some of the witnesses were Royalist soldiers who testified that Charles incited war against those who opposed his edicts and committed war crimes, including plundering and ransacking civilian homes, starving the citizenry into surrender and extracting large sums of money from small towns at peril of fire.

Evidence was also produced that he received help from Catholics in Ireland and Scotland to fight against the non-Catholics.

On January 30, 1649, King Charles I was executed.

After the beheading, Cooke continued serving as solicitor general and trying cases. He also served as a court judge. The restoration of the monarchy in 1660 ushered to the throne King Charles II, and supporters of royalty. That same year, Cooke was arrested, tried, and convicted of regicide. During trial, Cooke argued that a barrister could not be held responsible for the fate of the person prosecuted. The king had been arrested by others, not the barrister, and it was his duty to proceed. But it was a foregone conclusion that Cooke would be convicted.

The  brutal execution of John Cooke occurred on October 16, 1660. He was hanged, drawn, and quartered for regicide, as were others, leaving the “mark of Cain” upon those who condemned Cooke.

While John Cooke is little known today, his legacy beyond his courtroom advocacy is a gift to the world: Crimes against humanity can — and must — be prosecuted for the sake of humanity, e.g., Nuremburg and the International Court of Justice.
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Paul Mark Sandler is a trial attorney and author.