The Trial of Charles I – The First War Crimes Trial

Donald H.J. Hermann

 

            King Charles I of England was executed following a trial in 1649 before a Court established by a rump Parliament following his defeat in a protracted civil war.  Charles was charged with making war against his people.  The prosecution of Charles I is an unacknowledged precedent for the prosecution before the Nuremberg War Crimes Tribunal which was established by the Allied Powers following the defeat of Germany in 1945.  A principal charge against the German leadership was crimes against peace or making aggressive war.  The war crimes trials at Nuremberg suffered from the same defects of the trial of Charles I:  questions about the legitimacy of the court or tribunal, and the questionable legality of the charges lodged against the defendants.

            On a cold January afternoon in 1649, the second son of King James VI of Scotland (also James I of England) and his Queen, Anne of Denmark, Charles Stuart, King of England, Scotland, Ireland and France, stepped through a window of the Banqueting House in Whitehall onto a temporary scaffold.  Before a silent crowd, King Charles I was executed by the severing of his head from his body.

            Following what has come to be known as the two English civil wars, King Charles had been held prisoner by both Parliament and the Army.  The subsequent trial and execution of Charles I was a startling event to all of Europe.  Monarchs previously had been killed having been either deposed or murdered by conspirators.  Charles’ own grandmother Mary, Queen of Scots, had been tried and executed, but only after she had been deposed from the throne of Scotland and held captive by her English executioners.  During his trial and at his execution Charles I was recognized as the monarch, as the King of England.

            King Charles was brought to trial by members of Parliament and the Army.  They claimed legal authority based on an act passed by a rump Parliament.  This Act purported to provide the legal basis for the charges lodged against the king, and for the subsequent trial and execution of the monarch.  Supporters of the King maintained there was no legal basis for the trial and execution of the King. Royalists claimed the trial violated the fundamental constitutional basis of the realm since much of the membership of the House of Commons had been excluded from consideration of the Act which established the Court to try the King; the House of Lords had refused to consider the proposal; and the King had not given his consent.  In a pamphlet A Plea for the King and Kingdom published in London in November 1648, an apologist for Charles wrote:

Never was such a damnable doctrine vented before in the world, for the persons of sovereign Princes have ever been held sacred . . . even among the most barbarous Nations; and though in many Kingdoms they have been regulated by force of arms and sometimes . . . deposed and afterwards privately murdered, yet in no History can we find a parallel for this, that even the rage of Rebels extended so far to bring their Sovereign lord to public trial and execution, it being contrary to the law of Nature, the custom of nations, and the sacred Scriptures . . .  What Court shall their King be tried in?  Who shall be his Peers?  Who shall give sentence?  What eyes dare to be so impious to behold the execution?  What arm be stretched out to give the stroke against the Lord’s Anointed, and shall not wither like that of Jeroboam, when he lifted it up against an anointed prophet? 

 

Not only were there constitutional obstacles to the trial of the King.  There was also a more fundamental objection to any challenge to the authority of the Crown.  The King was God’s anointed.  Charles himself believed absolutely in his right to rule and in his responsibility to defend the laws and liberties of the people even against other officials of the English state, including members of Parliament.

            Charles had become heir to the throne upon the premature death of his brother, Henry.  His father James VI of Scotland had succeeded as James I of England upon the death of Queen Elizabeth I.  James’ reign followed upon the death of the Queen who died without heirs of the body in 1603 after a reign of 44 years.  James was the senior member of the Royal House of Tudor as a grandson of Margaret, the eldest daughter of King Henry VII, and sister of Henry VIII.  James was a small, awkward man with a speech impediment.  James firmly believed in the divine right to rule and that the Royal prerogative was unassailable.  As James worked to increase royal power, he came into frequent conflict with Parliament.  James favored the established Church of England over claims of toleration by Catholics and Presbyterians.  James was joined by Charles in the assertion of the divine right to rule and in support of the Church of England.  Many of his Puritan critics viewed James as presiding over a corrupt and debauched court.

            Charles was aristocratic in his physical bearing, although he suffered from a speech stammer.  Charles was viewed as religious and more virtuous than his father, but lacking his father’s political skills.  Charles was regarded as so steadfast in his positions that he was viewed as stubborn and inflexible.  A contemporary, Sir Richard Hutton, saw a close connection between Charles’ character and his official demeanor:

The sincere religious convictions which governed his life, while they shaped a private character of singular purity and simplicity, led him into dilemmas of public conduct from which a baser man would have escaped.  To defend the royal authority committed to him became a sacred trust.  James might regard the Divine Right of Kingship only as a convenient dialectical device, but to Charles it was an imperative principle of action.  No obligation inconsistent therewith, which he might be obliged to assume, could be binding on his conscience.

 

            When Civil War broke out in England in 1642, neither the removal of King Charles, nor his prosecution or possible execution were among the objectives of the Parliament or its army.  However as a consequence of the Parliament’s control of the army, the King raised forces to challenge the army controlled by Parliament.  Among his forces, the King enlisted foreign support, just as Parliament enlisted a Scottish army.  Parliament asserted it rightfully should exercise the power of governance; the King viewed Parliament as no more than providing advice.  The initial defeat of the King’s army and the King’s subsequent surrender following the launching of a second war led to the King’s imprisonment by parliamentary forces and ultimately rendered the King a prisoner of the army.  These anti-royalist forces were initially dominated by a moderate Presbyterian leadership hopeful of conciliation with the King.  However, a more radical group of Independents assumed control; their forces were dominated by Puritans who regarded the king as a wicked man who supported a corrupt Church and had brought about death and injury to the people of England.  The Independents were of the view that the King deserved the vengeance of God.  After the King’s second military defeat, the puritan army on November 20, 1648, laid before the house of Commons, a demand that the King to be brought to trial.

            On January 1, 1649, a rump group in the House of Commons passed a law demanding that the King be tried for treason.  The grounds were that the King had waged war on Parliament and on the country.  The House of Lords rejected the bill.  Then, those remaining in the House of Commons responded by again passing a bill requiring Charles to stand trial.  The rump group in the House passed another measure establishing a High Court of Justice with 135 commissioners taken from the military and from Parliament.  The Act passed on January, 1649 contained the central charge that Charles I had “maintained a cruel war” against his people; the charge read:

Whereas it is notorious that Charles Stuart, the now King of England . . . hath had a wicked design totally to subvert the ancient and fundamental laws and liberties of this nation and in their place to introduce an arbitrary and tyrannical government, and that, besides all other evil ways and means to bring this design to pass, he hath prosecuted it with fire and sword, levied and maintained a cruel war in the land against the parliament and kingdom. . . .

 

It is this charge of levying and maintaining “a cruel war in the land against the parliament and kingdom” that provides the basis for the assertion that the trial of Charles I is the first war crimes trial and an unacknowledged precedent for the Nuremberg War Crimes trials.

            The initial Nuremberg war crimes trials were held in 1946.  In the first of these trials, leading figures of the Nazi regime were charged on four counts:  making aggressive wear, conspiracy, war crimes and crimes against humanity.  However, the principal basis for initiating the trials was the charge of aggressive war.

            During World War II, the Allied powers planned to prosecute conventional war crimes such as machine gunning survivors of sunken ships, and torturing of prisoners of war, under existing provisions of established international conventions.  However, such prosecutions would not reach civilian and military leaders causing the war in the first place.  Moreover, the Allied leaders could not identify any existing precedent for judicial proceedings against the leaders of Germany.  For example, the campaign to kill the Kaiser in 1919 had not resulted in any legal action or prosecution.

            From the beginning of World War II, the British government urged summary execution of Hitler out of a fear that any trial would provide a platform for endless legal maneuvering with the possibility of acquittal, while also providing a rallying point for German nationalism.  Foreign Secretary Anthony Eden wrote in 1942:  “The guilt of such individuals is so black that they fall outside and go beyond the scope of any judicial process.”  A program of summary execution at six hours notice following identification of a prisoner by a senior military officer became the policy of the British government from 1943 until the end of the war.

            The British position was supported in the United States by President Franklin Roosevelt and Treasury Secretary Henry Morgenthau.  However, Secretary of War, Henry Stimson, opposed summary justice.  Stimson favored a tribunal reflecting notions of procedural justice including notification to the accused of any charges, the right to be heard, and the right to call witnesses.

            Not surprising the Soviet Union took the view that the German leaders deserved the death penalty; however, the Soviets maintained the death penalty should only be imposed on the German leaders after a full trial.  The Soviet position probably was influenced by the experience of the Soviet show trials of the 1930’s.  Leaders in the Soviet Union undoubtedly expected that German war criminals would be found guilty and executed just as they had expected purge victims to confess their guilt and be shot.

            Following Roosevelt’s death, the successor president Harry Truman took the position that a trial  of the German leaders was feasible and necessary.  The issue of war crimes prosecution was a principal agenda item at the meeting held in San Francisco in May 1945 to set up the United Nations.  The proposed establishment of a military court reflected the prevailing convention that war crimes were a military affair, but in practice the subsequent trial was largely organized and prosecuted by civilian lawyers and judges.

            The preparation of the war crimes tribunal revealed the extent to which the trial was a political act rather than an exercise in law.  When the American prosecution team was appointed in 1945, there was no clear idea about who the principal war criminals would be, nor a precise idea of what charges the German leaders might face.

            The framing of charges provided a major challenge to the prosecutors.  The war crimes defined at the end of World War I and made subject to international agreement did include crimes that had eventually been perpetrated by Germans during the war; these included:  systematic terrorism, torture of civilians, and mistreatment of enemy combatants.  The challenge, however, was to develop charges that could be applied to Nazi leaders, few of whom could be shown beyond reasonable doubt to have directly ordered, perpetrated or participated in specific recognized war crimes.  Instead prosecutors chose the main charge of waging aggressive war.

            With the collapse of the German Reich, the Allies succeeded in arresting two dozen leading Nazis.  Hitler himself was presumed to have committed suicide, along with his senior deputies Himmler and Goebels.  A few other officials managed to disappear.  During the summer of 1945, the Big Four Allies (the United States, Great Britain, France and the Soviet Union) established the London Agreement creating the International Military Tribunal setting out its legal framework in a document known as the Charter.  The trial was ready to begin at Nuremberg in November 1945 with the victor nations trying the vanquished German leaders for unprecedented violations of international law.

            The Nuremberg prosecutors were faced with the challenge of developing and justifying the charges to be brought against the Nazi leaders.  One alternative was to draw on the traditional law of nations, in particular the law of war.  It was well accepted that a victor could try citizens of a conquered nation for crimes committed against the victor’s own nationals, but it was less clear that a belligerent had jurisdiction to try persons for domestic crimes involving the defeated power’s own nationals.  It was possible for the victor powers to look not only to its own martial laws, but also to local German substantive law which includes homicide statutes.  But if German law had been invoked, as promulgated and enforced by the Nazi regime, defendants would likely have maintained their actions were legal under German law, or alternatively subordinate officials could be expected to invoke a defense of obedience to superior orders.  For example, if a German leader such as Herman Goering, who served as Commander in Chief of the Air Force and Chief of War Economy, was  were charged with the murder of German citizens or using political prisoners in war production, he could have based a defense on German law authorizing punishment or execution under existing German penal law for those who opposed or criticized the Reich.  Alternatively, Goering could assert that any official action he took was a result of direction or orders from the Fuhrer.  Moreover, traditional international law lent support to a defense based on the proposition that political decisions leading to war, as well as mistreatment of a state’s own nationals were to be deemed acts of a sovereign State, and that state officials of one nation were not criminally accountable to officials of another nation.

            The Charter adopted in London was drafted to avoid the need to base prosecutions on violation of German law by providing prosecutors the ability to charge the German officials with crimes against peace, conspiracy to commit crimes against peace, traditional war crimes, and crimes against humanity.  The Charter provided that defenses of state immunity and superior orders would not be recognized.  Thus the principal charge lodged against the German leaders was the waging of aggressive war; the indictment read in part:

Count One of the Indictment charges the defendants with conspiring or having a common plan to commit crimes against peace.

 

Count Two of the Indictment charges the defendants with committing specific crimes against peace by planning, preparing, initiating, and waging wars of aggression against a number of other States.

 

The main charge of waging aggressive war had never been defined as a crime in international law, even if the carrying out of war might give rise to specific criminal acts.  War was regarded as legally neutral.  To define the war-making acts of the German government as crimes required adoption of retroactive international law.  The notion of another charge “crimes against humanity” was derived from precepts about the treatment of civilians contained in the Hague Conventions of 1899 and 1907, but never before had there been an assertion of international criminal liability for crimes against humanity.

            The Nuremberg prosecutions adopted a novel legal theory to charge the German leaders:  all actions of the German leadership deemed to be illegal were included under the single heading of a conspiracy to wage an aggressive and criminal war.  The conspiracy to wage aggressive war could include everything the Nazi regime had done since coming to power in January 30, 1933, including deliberate repression of the German people, plans for rearmament, persecution of religious and racial minorities, as well as any traditional war crimes committed as a consequence of launching an aggressive war in 1939.  The charge of conspiracy removed the possibility of a defense based on a claim of obedience to higher orders; or that Hitler, if found and charged, could claim immunity as a sovereign head of state.

            A major problem with the prosecution strategy was the absence of any legal foundation for the charge of conspiring to wage aggressive war.  The prosecution invoked the Kellog-Briand Pact signed in Paris in 1928 by sixty-five countries.  However, the Pact was a statement of intent rather than binding international law; the intent was to renounce war as a means of settling disparities, except in case of self-defense.  In fact during the 1930’s aggressive wars were undertaken by four of the signatory powers including Germany, Japan, Italy and the Soviet Union.  Nevertheless, the prosecution took the position that the Kellog-Briand Pact established aggressive war making as illegal and criminal.

            The defense of the indicted German leaders was that they stood accused of acts not regarded as crimes when they were committed.  One of the defendants Robert Ley, who had served as Leader of the German Labor Front, based his rejection of the legal basis of the tribunal by pointing out that the Charter establishing the Tribunal, issued on August 8, 1945, created laws “after all the crimes mentioned in the indictment, which they wish to judge, had been committed.”  This view was echoed by the Acting Dean of the Harvard Law School, who when asked for an opinion on the charge of conspiracy to make aggressive war, responded that retrospective justice was alien to the spirit of Anglo-American legal thought and urged its rejection as unwise and unjustifiable.

            It is significant that the American Supreme Court Justice and recognized civil libertarian William O. Douglas viewed the Nuremberg indictment as illegal and illegitimate.  In his book An Almanac of Liberty, Justice Douglas wrote:

By our standards no one can be tried for violating an ex post facto law.  An ex post facto law is one which punishes a person for an act which, when he did it, was not a crime.

 

Justice Douglas continued:

 

            The Nuremberg trials, in my view, applied to the defendants such a law.  Hitler and his colleagues were guilty of murder over and over again and deserved the death penalty under the common law of those crimes. . . .  But they were not tried for murder.  The Kellog-Briand Pact of 1928 renounced war “as an instrument of national policy,” and Germany was a signatory.  And so the defendants were tried for the crime of waging aggressive war.  But no matter how finely the lawyers analyze it, the crime for which the Nazis were tried had never been formalized as a crime with the definiteness required by our legal standards, nor outlawed with a death penalty by the international community.  By our standards that crime arose under an ex post facto law. 

 

Douglas concluded:

 

            Goering et al. deserved severe punishment.  But their guilt did not justify us in substituting power for principle.

 

            The charge of conspiracy to engage in aggressive war proved difficult to establish.  Three of the defendants, Von Pappen, Schacht, and Fritzsch were found not guilty on all counts.  Subsequent historical research has failed to establish a concerted conspiracy to wage aggressive war.  While the crime against peace has gained widespread formal acceptance in the past half century, it has never been applied or charged in any court.  Since the World War II prosecutions, no one has been charged with conspiracy to wage war.  By contrast, the recent war crime trials have focused on traditional war crimes and the related concepts of crimes against humanity and genocide, and not on trials for conspiracy to commit crimes against peace.

            Contemporary critics of the Nuremberg trials also challenged the basis for the existence of the tribunal itself.  It is universally recognized that no tribunal can exercise jurisdiction involving a legal power to administer sanctions, such as imposing the death penalty, unless the court has been created under the authority of recognized law.  The authority of the International military Tribunal rested upon the Agreement executed in London on the 8th of August, 1945, between France, Great Britain, the United States and Russia.  The authority of the victor powers to establish a court to sanction German leaders is subject to the objection that compulsory process derives validity only from an act of sovereignty.  However, the authority of the Nuremberg Tribunal was made immune from challenge by the Charter which established the Court; the Charter provided “Neither the Tribunal, its members, nor their alternates can be challenged by the prosecution or by the defendants or their counsel.”  Critics asked:  To what purpose was such a provision included in the Charter?  Were those who drafted the Charter fearful that the Tribunal could not survive a challenge to its jurisdiction?  It is generally recognized as an element of procedural due process that a defendant has a right to challenge the jurisdiction of a court along with the right to cross-examine witnesses or to impose any other point in law in bar of prosecution.

            The trial of Charles I for making war upon his people suffered from the same essential flaws as the Nuremberg prosecutions.  As we will now see, there were significant defects in the claim of the authority in charging King Charles as well as in the constitution of the court.  Similarly there was a significant basis for objecting to the legality of the charge made against the King for waging war against his people.

            The Second English Civil War provided the basis for the charges brought against  King Charles; the war broke out in February 1648 consisting of royalist risings in Wales, Kent and Essex and an invasion of Scotland.  While members of Parliament were willing to negotiate a peace with the King, the Army was militant in its demand that the King be brought to account for his leadership of a military force directed against it.  On November 18, 1648 a council of officers presented to Parliament the “Remonstrance of the Army,” which demanded that Charles I be brought to trial:  “That the capital and grand author of our troubles, the person of the King, by whose commissions, commands or procurement, and in whose behalf, and for whose interest only, all our wars and troubles have been, with all the miseries attending them, may be speedily brought to justice, for the treason, blood and mischief he’s therein guilty of.”

            The response of Charles to the Remonstrance was a denial of the possibly of a trial of the monarch by any legal means.  Charles wrote:  “By letter of the law, all persons charged to offend against the law ought to be tried by their peers or equals.  What is the law, if the person questioned is without a peer?  Again if the law seems to condemn him, by what power shall judgment be given and who shall give it?”

            The sitting Parliament too rejected the Remonstrance, and proposed to reopen negotiations with Charles.  The reaction of the army to the maneuvering of the Parliament was swift, the army marched on London and occupied Westminster.  Officers of the army and the Independent members of parliament, the more radical element of the House of Commons, opposed efforts at negotiating with the King arguing that:  “[T]he measures taken by the Parliament were contrary to the trust reposed in them, and tending to contract the guilt of the blood that had been shed, upon themselves and the nation. . . .  It was therefore the duty of the army to endeavour to put a stop to such proceedings; having engaged in the war.  Not simply as mercenaries, but out of judgment and conscience, being convinced that the cause in which they were engaged was just, and that the good of the people was involved in it.”

            On December 6, 1648, the commanding officer at Westminster, Colonel Thomas Pride, with the support of his troops barred the doors of the House of Commons excluding from Parliament all members who had supported the King.  The House of Commons was reduced to a rump of seventy members.  With the establishment of the Rump Parliament, the army was completely in control of the government.

            On January 6, 1649, the Rump Parliament passed an Act creating a special High Court of Justice for the King’s trial.  The Act provided in part:

Whereas it is notorious that Charles Stuart, the now king of England . . . hath had a wicked design totally to subvert the ancient and fundamental laws and liberties of this nation and in their place to introduce an arbitrary and tyrannical government, and that besides all other evil ways and means to bring this design to pass, he hath prosecuted it with fire and sword, levied and maintained a cruel war in the land against the parliament and Kingdom. . . .

 

When the House of Lords examined the proposed new law, it was rejected.  Commons then decided that it could act unilaterally.   The Rump Parliament declared that as representatives of the people, its members had supreme power and could make law without the consent or concurrence of the King or House of Lords.  The Commons added another law establishing the High Court of Justice with 135 Commissioners taken from the military and the Parliament.

            The sitting members of Commons initially attempted to staff the court with the highest ranking judicial figures in England; the proposed presiding officers were the Lord Chief Justice of England, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of Exchequer.  They all declined, and the presiding position went to John Bradshaw, a judge sitting in Chester and Wales.  To avoid conducting the prosecution, the Attorney General claimed to be disabled by illness.  A relatively obscure lawyer James Cook was chosen to lead the prosecution of Charles I.  Only sixty-eight of the appointed commissioners accepted their appointment.

            The trial of Charles I opened on January 20, 1649 at Westminster with the reading of the names of the Commissioners.  John Bradshaw, as Lord President of the Court ,began the proceedings with a statement asserting the jurisdiction of the court:

Charles Stuart, King of England, the Commons of England assembled in Parliament being deeply sensible of the calamities that have been brought upon this nation, which is fixed upon you as the principal author of it, have resolved to make inquisition for blood; and according to that debt and duty they owe to justice, to God, the Kingdom, and themselves, and according to the fundamental power that rests in themselves, they have resolved to bring you to trial and judgment; and for that purpose have constituted this high Court of Justice, before which you are brought.

 

            James Cook, acting as the Solicitor of the Commonwealth, then read the charge against the King accusing Charles of ruling as a tyrant and waging war against the Parliament and the English people.  Cook concluded by stating:  “The said Charles Stuart hath been and is the occasioner, author, and continuer of the said unnatural cruel and bloody wars; and therein guilty of all the treasons, murders, rapines, burnings, spoils, desolations, damages and mischiefs to this nation, acted and committed in the said wars, or occasioned thereby.”

            Following the reading of the charge, Justice Bradshaw addressed the King:  “Sir, you have now heard your charge; the Court expects your answer.”  Charles responded directly while refusing to enter a plea:  “Remember I am your King, your lawful King, and what sins you bring upon your heads, and the judgment of God upon this land, think well upon it.  I say, think well upon it, before you go from one sin to a greater . . . I have a trust committed to me by God, by old and lawful descent.  I will not betray it to answer a new unlawful authority.  Therefore resolve me that, and you shall hear more of me.”

            Bradshaw reiterated his demand that Charles enter a plea to the charge lodged against him “in the name of the people of England of which you are elected a King.”  The novel political theory of an elected monarch implicit in Bradshaw’s demand brought forth a further statement from the King:  “England was never an elective kingdom, but a hereditary Kingdom for near these thousand years; therefore let me know by what authority I am called hither; I do stand more for the liberty of my people than any here that come to be pretended judges.”

            Thus, the King challenged the High Court’s jurisdiction and refused to plead.  The High Court could not cope with this assertion of lack of jurisdiction other than to insist repeatedly that it did have jurisdiction and that Charles should answer the substantive charges.  On three occasions, Bradshaw responded to Charles’ refusal to plead by ordering the King removed from the courtroom.

            Charles tied his jurisdictional defense to far larger themes:  the requirement of legal legitimacy and the protection of the people’s liberties.  According to Charles, if an illegitimate group could claim state power and enact laws to try the King, no one in the Kingdom was protected  by law.  Charles claimed to stand for law against lawlessness.  According to Charles’ argument, a rump Parliament claimed to have created a court to try the King and thus wrongfully claimed the power to alter the Kingdom’s constitutional structure of government.  Charles maintained that such illegitimate institutions and lawless conduct threatened all English citizens.  The King insisted that in challenging the legitimacy of the Court and the charges against him, he was defending the liberty of the English people:  “The duty I owe to God in the preservation of the true liberty of my people will not suffer me at this time to be silent:  for, how can any free-born subject of England call life or anything he possessed his own, if power, without right, daily make new, and abrogate the old fundamental laws of the land which I now take to be the present case?”

            The King principally based his refusal to plead on the unconstitutional nature of the proceedings, and the extra-legal formulation of the charges, against him.  According to Charles:  “[I]t were full as strange, that they should pretend to make laws without King’s or Lords’ House, to any that have heard speak of laws of England.”

            However, Charles went further and attacked any claim that the Court’s legitimacy rested on popular sovereignty or represented the wishes of the English people.  Charles argued that even if “the people of England’s commission could grant your pretended power, I see nothing you can show for that; for certainly you never asked the question of the tenth men in the Kingdom, and in this way you manifestly wrong even the poorest ploughman, if you demand not his free consent.  Nor can you pretend any colour for this your pretended commission, without the consent at least of the major part of every man in England . . . which I am sure you never went about to seek, so far are you from having it.”

            On the second day of the King’s trial, the prosecutor, James Cook, reiterated the charge and reminded the court that instead of answering the charge, the King had challenged the jurisdiction of the Court.  The prosecutor demanded that the King enter a plea to the charges brought against him:  “My humble motion . . . is that the prisoner be directed to make a positive answer either by way of confession or negation; which if he shall refuse to do, that the matter of the charge may be taken pro confesso, and the Court may proceed according to justice.  Justice Bradshaw concurred in the view that if the King would not answer the charge, he should be regarded as having admitted his guilt.  This is of course contrary to current practice in the United States where when a defendant stands mute, the court will enter a plea of not guilty for the defendant.

            As with the Nuremberg tribunal, no challenge to the jurisdiction of the Court was to be permitted.  The Lord President of the Court attempted to end Charles’ denial of the court’s legitimacy:  “Sir, you are not to dispute our authority, you are told it again by the Court.  Sir, it will be taken notice of, that you stand in contempt of Court, and your contempt will be recorded accordingly.

            Charged with making war against his people through murder and treason, the threat of contempt was not persuasive.  The King continued to insist that he, like any accused person, had the right to question the legitimacy of the court and denied there was any precedent for the Court’s proceedings.  Nevertheless, the Court remained insistent that its jurisdiction not be questioned.  Bradshaw responded to the King:  “You are concluded, you may not demur to the jurisdiction of the Court.  If you do, I must let you know, that they overrule your demurrer.  They sit here by the authority of the Commons of England, and all your predecessors and you are responsible to them.”  With the King continuing to challenge the authority of the Court, Bradshaw ordered the King to be removed from court warning him that the next day session of the trial would be the last.  As he was being removed the King first asserted his right not to answer the court saying:  “Sir, remember that the King is not suffered to give in his reasons for the liberty and freedom of all his subjects.”  Finally, the King asserted his innocence of the charges of making war against his people:  “Sir, under favour, it was the liberty, freedom, and laws of the subject that ever I took – defended myself with arms; I never took up arms against the people, but for the laws.”

            During the third day of the trial the King continued to spar over the issue of the courts legitimacy and jurisdiction.  The prosecution not only insisted on the Court’s jurisdiction but also asserted that the question of the King’s guilt was clear.  The prosecutor declared:  “The House of Commons, the supreme authority and jurisdiction of the Kingdom, they have declared, that it is notorious, that the matter of the charge is true, as it is in truth, as clear as crystal and as the sun that shines at noonday; which if your lordship and the Court be not satisfied in, I have notwithstanding, on the people of England’s behalf, served witnesses to produce . . . And therefore I do humbly pray that speedy judgment be pronounced against the prisoner at the bar.”  Justice Bradshaw responded by stating the Court would be justified in sentencing the King without delay, but continued to provide Charles the opportunity to enter a plea.  Again Charles answered defiantly that the charge was without basis or significance, but more significantly the court was without authority to try him; the King responded:  “For the charge, I value it not a rush; it is the liberty of the people of England that I stand for.  For me to acknowledge a new court, that I never heard of before.”  Bradshaw responded that the king should “find that you are before a court of justice.”  The King anticipating Justice Douglas’ distinction in criticizing the Nuremberg prosecutions which he viewed as based on power and not principle or legitimacy, Charles defiantly stated:  “I see I am before a power.”

            Since the king’s refusal to plead was viewed by the Court as a guilty plea, witnesses could not be called before the Court.  However to strengthen its case, the prosecution spent two days presenting in a private hearing before the Commissioners testimony, mostly from soldiers, that the King had taken part in the Civil War.

            The Court then reconvened with the Lord President stating that the Court had fully considered the case, since the prisoner had not pleaded, he must be regarded as having confessed; and since the charges brought against the king were notorious, its members had agreed upon the sentence of death.  But the Court was still willing to hear the King speak in his defense before pronouncing sentence, so long as the King did not “offer any debate” about the Court’s power.  The King responded that he would not waive his objections to the Court.  Because of Charles’ refusal to acknowledge the legitimacy of the Court, Bradshaw refused to permit the King to make a statement before sentence was imposed.  The Lord President closed his remarks speaking to the King:  “You disavow us as a Court:  and therefore for you to address yourself to us, not acknowledging us as a Court to judge of what you say, it is not to be permitted.  And the truth is, all along, from the first time you were pleased to disavow and disown us, the Court needed not to have heard your one word.”  The clerk was directed to read the sentence against the King:

Whereas the Commons of England in Parliament had appointed them a High Court of Justice, for the trying of Charles Stuart, King of England, before whom he had been three times convened; and at the first time a charge of high treason, and other crimes and misdemeanours was read in the behalf of the Kingdom of England. . . .

 

The clerk continued:

 

            Which charge being read unto him, as aforesaid, he the said Charles Stuart was required to give his answer:  but he refused so to do; and so expressed the several passages of his trial in refusing to answer.  For all which treasons and crimes the Court doth adjudged, that the said Charles Stuart, as a tyrant, traitor, murderer, and a public enemy, shall be put to death, by the severing of his head from his body.

 

Since according to English law, a prisoner condemned to death was considered already dead in law, the King was not allowed to speak after sentence.  Two days later, fifty-nine of the commissioners signed the King’s death warrant directing the army to carry out the King’s execution the next day.  The King was executed on January 30, 1649 at Whitehall at forty-eight years of age, and in the twenty-second year and tenth month of his reign.

            The Allied Nations following World War II were convinced of the necessity of punishing those Germans deemed responsible for bringing about World War II by the invasion of neighboring countries and for conducting a war through terrorizing enemy combatants as well as mistreating citizens of Germany and occupied countries.  The English army and allies in Parliament believed that removing King Charles from office was essential for the nation’s survival and that executing him was essential to prevent Charles from reclaiming the throne.  Both the allied powers at Nuremberg in 1945 and the English authorities in London in 1689 felt a compelling need to clothe their actions with apparent legal authority and to pursue their objectives in conformity with legal procedures.  The laws of England offered no mechanism for removing and executing a King.  Therefore the army and its Parliamentary allies had to create a court and legal charges to serve as a legal mechanism to eliminate the King.  The Allied Powers following World War II could have adopted the British suggestion of summary execution of the German leadership.  Instead the Allied Powers chose to establish a special tribunal and to pursue a prosecution based on novel charges including crimes against peace or making aggressive war.

            It is hard not to conclude that prosecution for making war or crimes against peace involve nothing more than victor justice.  While concepts like “just war” and “defensive war” have theoretical significance, it is difficult to establish the practical significance of these concepts in actual international relations.  Certainly Charles felt justified in resisting what appeared to him as a threat of revolutionary military action directed by members of Parliament against the Crown.  The trial of Charles was authorized by a parliament that was a rump, Charles was sentenced by a court that was illegitimate acting on charges of questionable legality.  Similarly, the governments of Germany and Japan based their territorial expansion on historical claims and national need.  The fact that neither the Nuremberg Tribunal nor the High Court created by the Rump Parliament permitted challenges to their jurisdiction raise issues about these courts’ legitimacy.  The ex post facto nature of the charges lodged against Charles and the Nuremberg defendants raise issues about the legality of these war crimes prosecutions.

            It is significant that since the Nuremberg prosecutions, no one has been charged with crimes against peace or making aggressive war.  While European monarchs, including Louis XVI, have been put on trial by their own subjects following the precedent of the trial and execution of Charles Stuart, the reputation of Charles himself was rehabilitated and he became revered as the martyred monarch after the Restoration of the Monarchy in 1660.  One can in the end hear echoes of Herman Goering’s defense theme at the Nuremberg Trials:  “The victor will always be the judge, and the vanquished will always be the accused.”