September 21, 2005

STRICT ACCOUNTABILITY:

What the Regicides Did For Us: Far from being the bogeymen of history, Geoffrey Robertson QC says that the English regicides were men of principle who established our modern freedoms. (Geoffrey Robertson, History Today)

The proceeding against Charles i in 1649 secured the constitutional gains of the Civil War – the supremacy of Parliament, the independence of judges, individual freedom guaranteed by Magna Carta and the common law. But they brought little fame to those who presided over the trial and signed the King’s death warrant. Apart from Cromwell (who later became king in all but name) the regicides are not portrayed on statues or stamps, and their fate is seldom mourned: in 1660, after a rigged trial at the Old Bailey, their heads were stuck on poles and their body parts fed to the stray dogs of Aldgate. British liberty is usually dated from the ‘glorious revolution’ of 1688-89, but forty years earlier the House of Commons had declared 1649 to be ‘The first year of freedom, by God’s blessing restored’.

The King’s trial was, from a modern perspective, the first war crimes trial of a head of state. The arguments in Westminster Hall resonate today in the courtrooms of the Hague and even in the Iraqi Special Tribunal – Saddam Hussein’s opening words to his judge were, in translation, a paraphrase of those of Charles: ‘By what power am I called hither… I would know by what authority, lawful I mean…’. Three centuries before the rulings against Pinochet and Milosevic, this was a compelling argument. Charles had the purest form of sovereign immunity: he was a sovereign, both by hereditary and (as many believed) by divine right. Judges had always said that the king, as the source of the law, could do no wrong: rex is lex is how they had put it in the ship-money case when they found against John Hampden.

As for international law, the ink was hardly dry on its modern foundation, the Treaty of Westphalia (October 1648), which guaranteed immunity to every prince, however Machiavellian. The best thing about the Treaty of Westphalia, however – from parliament’s point of view – was that England was not a party to it. On January 6th, 1649 the purged House of Commons, without waiting for the equivocating House of Lords, passed an ‘Act’ to establish a High Court of Justice ‘to the end that no chief officer or magistrate may hereafter presume traitorously or maliciously to imagine or continue the enslaving or destroying of the English nation, and expect impunity for so doing.’

This was the origin of ‘impunity’ in the sense that Kofi Annan and Amnesty International now use the word, to refer to the freedom that tyrants should never have to live happily ever after their tyranny. Parliament’s brief to end impunity was sent to a barrister at Gray’s Inn, John Cooke, who prosecuted Charles Stuart as ‘the occasioner, author and continuer’ of the civil wars, ‘a tyrant, traitor, murderer and a public and implacable enemy to the commonwealth of England’. ‘Tyranny’ was an apt description of what today would include crimes against humanity and war crimes: Cooke used it to describe the conduct of leaders who destroy law and liberty or who bear command responsibility for the killing of their own people or the plunder of innocent civilians or the torture of prisoners of war.

What was truly astonishing about the trial of Charles I was that it took place at all. In January 1649, a third civil war seemed imminent: the king’s navy, commanded by Prince Rupert and the Prince of Wales, would link up with the waxing royalist army under the duke of Ormonde, whose Irish ‘confederacy’ had just signed a treaty with the perfidious Dutch. ‘Pride’s Purge’ of Parliament in 1648 had been the army’s way of declaring a state of national emergency, and in this atmosphere Charles could, with perfect legality, have been court-martialled as the enemy commander and immediately executed by firing squad. The summary justice of the provost martial had been a feature of ‘turbulent times’ in England since Edward I, and it was visited upon captured leaders on the principle that ‘a man who is dead renews no war’.

By opting, instead, for a public trial, the King’s judges were taking an enormous risk – they were providing the King with a political platform as well as an opportunity to contest his guilt (for this very reason, Churchill strenuously opposed the trial of Nazi leaders at Nuremberg). But these Puritan lawyers and MPs were determined that the King should have justice – whether he wanted it or not. More justice, indeed, than given to ordinary prisoners, who were automatically deemed guilty if, like Charles, they refused to plead. Before the King was convicted, however, the court required the prosecution to prove his guilt.

The ideal mixed regime requires a king, but one of limited powers who is not above the constitution.

Posted by Orrin Judd at September 21, 2005 6:00 AM
Comments

Yes, and the United States has one: The President.

Posted by: Robert Schwartz [TypeKey Profile Page] at September 21, 2005 11:59 AM

Too much a party man to qualify.

Posted by: oj at September 21, 2005 1:15 PM

Why a king and not an elected president serving solely as head of state - like in Italy?

Posted by: Brandon at September 21, 2005 3:29 PM

An elected king who serves for life or until incapacity might suffice, though not popularly elected.

Posted by: oj at September 21, 2005 4:10 PM

How does that make a mixed regime ideal? I didn't get that from the review you linked to.

Posted by: Brandon at September 21, 2005 7:34 PM

It's the one institution that serves only the best interests of the nation and acts as a total brake on democracy in limited instances.

Posted by: oj at September 21, 2005 8:05 PM

"acts as a total brake on democracy in limited instances."

I've never seen a better definition of a "right."

Posted by: Rick Perlstein at September 22, 2005 4:11 AM

Rick:

Exactly. Democracy is always a threat to rights.

Posted by: oj at September 22, 2005 7:36 AM

Mob rule is just Democracy in a hurry.

Posted by: Raoul Ortega at September 22, 2005 5:00 PM
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