|The Right of Reply The King Never Had|
|Written by Michael Hodgman QC|
|Saturday, 19 August 2006|
HIS MAJESTY KING CHARLES I - CONSTITUTIONAL MONARCH,
MARTYR AND SAINT
“The Right of Reply The King Never Had”
[SPEECH DELIVERED BY THE HON MICHAEL HODGMAN QC MP, HER MAJESTY’S SHADOW ATTORNEY GENERAL FOR THE STATE OF TASMANIA TO AUSTRALIANS FOR CONSTITUTIONAL MONARCHY LUNCHEON, PARLIAMENT HOUSE, SYDNEY, 16TH JUNE, 2006.]
On the 30th day of January, 1649, the most foul and terrible murder was publicly and brazenly committed. The inexcusable crime of Regicide was perpetrated by the accursed Oliver Cromwell and his regicide henchmen before thousands of silent spectators in front of the Banqueting Hall of St James Palace. The victim was none other than His Majesty King Charles I – Constitutional Monarch, Martyr and Saint. He was the innocent victim of an outrageous phoney Show ‘Trial’ – an illegal, illegitimate ‘trial’ not by a Court but by an arbitrary Cromwell-appointed tribunal totally unknown to the Law – and of the very King of England – and of a ‘crime’ totally unknown to the Law and as distinguished High Court Justice Michael Kirby has succinctly stated ‘retrospectively invented’. The mock ‘trial’ was conducted in circumstances where every known fundamental principle of natural justice was flagrantly breached. From the outset the ‘trial’ was tainted. In his apologist work ‘The Tyrannicide Brief’, Geoffrey Robertson QC lauds those who put King Charles to death as ‘defenders of liberty’ and eulogises the prosecutor – more correctly described as persecutor – John Cooke. Robertson praises Cooke’s ‘conscience’ love of civil liberty and describes him as the bravest of barristers who risked his own life to make tyranny a crime. Others such as Dame Veronica Wedgewood in The Trials of Charles I (1964) described Cooke as an‘over-zealous’ prosecutor. Gray’s Inn today – as Robertson admitted – makes no mention at all of Cooke. They don’t want to know him. In his paper on the 350th Anniversary of the Trial of King Charles I, the Honourable Justice Michael Kirby described the so-called ‘trial’ as ‘by legal standards, a discreditable affair’. If Geoffrey Robertson QC in his revisionist work is right about the Trial of King Charles I and the shameful role of John Cooke then Dame Veronica Wedgewood, the Honourable Justice Michael Kirby, Professor John Bowle, Thomas Babington McAuley and Winston Spencer Churchill are all wrong – and my own good self as well. For my part as Tasmania’s senior Queen’s Counsel and having appeared as Senior Counsel for the Defence in over 550 criminal trials, I condemn the ‘show trial’ of His Majesty King Charles I as an absolute disgrace. His conviction was a travesty of justice. He should have been acquitted on at least six grounds. Geoffrey Robertson QC brushes aside the following damning indictments of the entire process – any one of these points would have justified an acquittal:
1. The alleged crime of tyrannicide was never Law. It was never enacted by the Parliament. It was an ‘Ordinance’ of a Rump of the House of Commons then amended to be a self-proclaimed ‘Act of the Parliament’ notwithstanding it had not passed the House of Lords let alone received the Royal Assent. In other words, it was a total sham – a legal nothing.
2. The King was presented before a hand-picked biased tribunal unknown to the Law and which clearly had no lawful jurisdiction or right whatsoever to try the King himself – or any other person in England for that matter.
3. The King was denied the fundamental right of the presumption of innocence and when he dared to challenge the authority of the Tribunal he was arbitrarily told that he was to be convicted.
4. Even Geoffrey Robertson QC admits that the first charge drafted against the King was the sort of argument that ‘might pass muster in a tavern but not in a criminal court’. (Algernon Sydney said to Cromwell ‘first, the King can be tried by no court; secondly, no man can be tried by this court’. Cromwell allegedly replied ‘I tell you we will cut off his head with the crown on it’.) Geoffrey Robertson QC admits that in the final formal paragraph of the charge that the description ‘tyrant, traitor, and murderer….’ was in some doubt as to whether treason, notwithstanding its extended definition in Strafford’s Case could be committed by a King. Murder most certainly could but what if the war had not been unlawful. There was some question, even amongst Parliamentarians, about who had really started it back in 1642. Even Robertson concedes ‘the King had raised his Standard outside Nottingham, but he had declared war on his own people in order to safeguard what he sincerely believed were his lawful prerogatives and some thought Essex had over-hastily engaged the Parliamentary forces’. What the Solicitor-General (Cooke) had hit upon in a very short time and under intense pressure was a crime of tyranny capable of commission by a Head of State.
5. The Tribunal on a number of occasions adjourned and deliberated secretly in the absence of the King, denying him the fundamental right to hear what was being said against him. Many of the public who were present responded to the unfairness of the Tribunal by calling out ‘God Save the King’.
6. The King was never permitted to expand on his statement that he had ‘defended himself with arms’. ‘I never took up arms against the people but for the laws.’ I am appalled by the fundamental breaches of natural justice to which His Majesty the King was subjected. I will be referring specifically to some of the things that were said at the trial of King Charles I, and for that I rely on three principal authorities - one is that excellent book, The Trial of Charles I by David Lagomarsino and Charles J. Wood which was published for Dartmouth College by University Press; the most excellent biography of King Charles I by Professor John Bowle; and finally to the greatest historian of living memory, Thomas Babington Macaulay.
Some people would say that King Charles I was not a good King, and that King Charles I in many ways was the author of his own misfortune. But the great Winston Churchill got it so right when he said that by his death King Charles I “guaranteed the restoration of the Constitutional Monarchy” and that by killing King Charles I, Cromwell ensured that the ‘republic’ could not survive”. What I say happened at the so-called trial” would amaze anybody who had even the slightest understanding of the rights of an ordinary individual to natural justice and to be dealt with fairly under the Law.
Let me just deal with these points seriatim: when King Charles I, having been illegally kidnapped, is brought before a tribunal purportedly containing 153 persons, being representatives of the House of Commons, and one renegade Lord from the House of Lords, unpresided over by the Lord Chief Justice of England, who would have not a bar of it, nor would any of the Law Lords, nor would the Solicitor General, but with Cooke appointed as prosecutor. When he is produced before this court, he says, “By what authority do you bring me here?” and when he repeats that proper request for the lawfulness of the proceedings, it is rejected and ignored on many separate occasions, and then ultimately without hearing him further they say, 'Because you will not accept the authority of us; we will not only not hear you but we will find you guilty'. Listen verbatim to what King Charles I says when first brought before this illegal tribunal.
'I would know by what power I am called hither ... I would know by what authority - I mean lawful authority’.
The ‘Lord President’ says 'You are here because of the authority that the Parliament has sent us here to deal with you,' and the King says, 'If it's the Parliament I will go before the Parliament and answer.' At that time the House of Lords had been despatched and those who were not in favour of Cromwell had already been removed from the House of Commons. He says this: 'I do not come here as submitting to the "court"; I will stand as much for the privilege of the House of Commons rightly understood as any man here whatsoever’. ‘Let me see a legal authority and I will answer.'
It went on and the ‘Lord President’ again refused to answer the question and the King said this: 'Satisfy me in that and I will answer, otherwise I betray my trust and the liberties of the people. And therefore think of that and then I shall be willing, for I do avow that it is as great a sin to withstand lawful authority as it is to submit to tyrannical or any otherwise unlawful authority. And therefore satisfy God and me and all the world in that and you shall receive my answer.'
On no less than 20 occasions at this trumped up show ‘trial’, His Majesty asked by what authority he was before a mock court, unknown to the law of the land. He says: 'I am not just doing it for me, I am doing it for my subjects.' And listen to these words:
'If it were only my own particular case, I would have satisfied myself with the protestation I made last time I was here against the legality of this court ... But it is not my case alone - it is the freedom and the liberty of the people of England. And do you pretend what you will, I stand more for their liberties.’ ‘My reasons why, in conscience and the duty I owe to God first, and my people next, for the preservation of their lives, liberties and estates - I conceive I cannot answer this till I be satisfied of the legality of it.'
Here is a very great man brought before a preordained arbitrary tribunal who is not just asking because it is his right as King, he is asking it because it affects the rights and the liberties of every individual subject. It was of sufficient moment that on three separate occasions in this rump show ‘trial’ they adjourned and conferred in private so that he had neither the opportunity to answer, nor to make any comment thereon. They then came back and, because he had declined to submit to the authority of this so called court unknown to the law, they deemed that he was guilty. He asked permission to speak. Professor Bowle has obtained the full speech that he wished to make and he was prevented from making it. They said to him, 'You'll be allowed to speak later'. They then adjourned again and when they came back later, without any further ado they imposed sentence of death, having found him guilty of being a tyrant, a traitor, a murderer and an enemy of the people. Not one word was he allowed to speak in his own defence and when he then sought the opportunity to speak, they said, 'No, no, sentence has now been passed. Remove the prisoner'.
On the scaffold His Majesty King Charles I proclaimed, “I die a martyr for my people”. What Professor Bowle says about him and what the great Thomas Babington Macaulay says about him vindicates His Majesty and proves beyond doubt that this was one of the greatest men ever in the history of the world. Listen to what Professor Bowle says about him. Writing immediately after the execution has occurred Professor Bowle said this:
'Thus with military precision Oliver Cromwell and his generals inaugurated the rule of the sword masked until 1653 by the Rump Parliament of the Commonwealth, but under the Protectorate undisguised. An unnecessary war had been concluded with a crime that was a political blunder. As that sober historian J.R. Tanner points out, "By the deed militarism, in the moment of triumph, began to preface the way for the Restoration." '
Macaulay puts it beautifully when he wrote: -
'The military ‘saints’ resolved that, in defiance of the old laws of the realm, and of the almost universal sentiment of the nation, the King should expiate his crimes with his blood. He for a time expected a death like that of his unhappy predecessors, Edward the Second and Richard the Second. But he was in no danger of such treason. Those who had him in their gripe were not midnight stabbers. What they did they did in order that it might be a spectacle to heaven and earth, and that it might be held in everlasting remembrance. They enjoyed keenly the very scandal which they gave. That the ancient constitution and public opinion of England were directly opposed to regicide made regicide seem strangely fascinating to a party bent on effecting a complete political and social revolution. In order to accomplish their purpose, it was necessary that they should first break in pieces every part of the machinery of the government; and this necessity was rather agreeable and painful to them. The Commons passed a vote tending to accommodation with the King. The soldiers excluded the majority by force. The Lords unanimously rejected the proposition that the King should be brought to trial. Their House was instantly closed. No court, known to the law, would take on itself the office of judging the fountain of justice. A revolutionary tribunal was created. That tribunal pronounced Charles a tyrant, a traitor, a murderer, and a public enemy; and his head was severed from his shoulders before thousands of spectators, in front of the banqueting hall of his own palace.
In no long time it became manifest that those political and religious zealots, to whom this deed is to be ascribed, had committed not only a crime, but an error. They had given to a prince ... an opportunity of displaying, on a great theatre, before the eyes of all nations and all ages some qualities which irresistibly call forth the admiration and love of mankind, the high spirit of a gallant gentleman, the patience and meekness of a penitent Christian. Nay, they had so contrived their revenge that the very man whose life had been a series of' mistakes 'now seemed to die a martyr in the cause of those liberties'. No demagogue ever produced such an impression on the public mind as the captive King who, retaining in that extremity all his regal dignity, and confronting death with dauntless courage, gave utterance to the feelings of his oppressed people, manfully refused to plead before a court unknown to the law, appealed for military violence to the principles of the constitution, asked by what right the House of Commons had been purged of its most respectable members and the House of Lords deprived of its legislative functions, and told his weeping hearers that he was defending not only his own cause, but theirs.'
So you see that by dying as he did King Charles I was not just dying for Constitutional Monarchy; he was the first martyr for Parliamentary Democracy and he was the first martyr for the liberties of the people of England. Now we inherit a Parliamentary democracy under the rule of law. We inherit the same rights and the same freedoms as spring from the common law. He was right when he said, 'I will not acknowledge the authority of a court unknown to the law. I will not demean the rights and liberties of my subjects by submitting to something which is not only unconstitutional but which has no legal basis whatsoever'. I have reached the conclusion that His Majesty King Charles I, as Professor Bowle has pointed out, was probably one of the greatest constitutional monarchs in the history of the world. In the last three weeks of his life he achieved a greatness and by his actions he thus ensured the Restoration.
As the great Sir Winston Churchill wrote in his History of the English Speaking Peoples “ … as misfortunes crowded upon him he increasingly became the physical embodiment of the liberties and traditions of England. In the end he stood against an Army which had destroyed all Parliamentary government, and was about to plunge England in a tyranny at once more irresistible and more petty than any seen before or since. He did not flinch in any respect from the causes in which he believed. He never departed from his central theme, either in religion or State. By his constancy, he preserved the causes by which his life was guided.”
The great Sir Winston concluded by specifically referring to ‘English liberties and the English Church’ and by profoundly proclaiming, of His Late Majesty King Charles I, “ … he died for them, and by his death preserved them not only to his son and heir, but to our own day.”
GOD SAVE THE QUEEN!
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