The Trial of Charles I – The First War
Crimes Trial
Donald H.J. Hermann
King
Charles I of
On
a cold January afternoon in 1649, the second son of King James VI of
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
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
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
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
On
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
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
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
Not
surprising the
Following
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
The
The
Charter adopted in
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
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
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
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
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
The
trial of Charles I for making war upon his people suffered from the same
essential flaws as the
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
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
On
On
Whereas it is notorious that
Charles Stuart, the now king of
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
The
trial of Charles I opened on
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
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
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
As
with the
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
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
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
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
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
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
It
is significant that since the