The marriage of William Windsor and Catherine Middleton has revived, for the moment at least, British passion for its inbred German monarchy. Lest we forget, however, one of the future king’s ancestors — specifically his 11th great uncle, Charles Stuart — once faced a parliamentary court on charges of treason. The former Charles I was stripped of his crown and ultimately his life, facing the executioner’s block on January 30, 1649.
The trial of Charles Stuart proved to be a watershed event in the history of English common-law jurisprudence, which influences American law to this day. Geoffrey Robertson wrote a compelling book in 2006, The Tyrannicide Brief, which examined Stuart’s trial from the perspective of the prosecutor, John Cooke. It was Cooke who formulated the novel charge of “tyranny” in his indictment of Stuart:
That the said Charles Stuart, being admitted King of England, and therein trusted with a limited power to govern by and according to the laws of the land, and not otherwise; and by his trust, oath, and office, being obliged to use the power committed to him for the good and benefit of the people, and for the preservation of their rights and liberties; yet, nevertheless, out of a wicked design to erect and uphold in himself an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people, yea, to take away and make void the foundations thereof, and of all redress and remedy of misgovernment, which by the fundamental constitutions of this kingdom were reserved on the people’s behalf in the right and power of frequent and successive Parliaments, or national meetings in Council; he, the said Charles Stuart, for accomplishment of such his designs, and for the protecting of himself and his adherents in his and their wicked practices, to the same ends hath traitorously and maliciously levied war against the present Parliament, and the people therein represented…
This was a radical departure from the “divine right” theory of monarchy that held the king and the state itself were indivisible. Indeed, Stuart’s only defense at trial was to deny the court’s jurisdiction, claiming that since he never approved the court’s formation as king — i.e., he never waived “sovereign immunity” — he could not lawfully be judged by the same.
Robertson explained how Cooke turned the traditional understanding of the king’s authority on its head, charging that it was an office held by a man who was charged with maintaining the public interest, not his own power:
Whether a policy was for the people’s benefit was generally a subjective question — but, as this charge went on to explain, a policy of war that resulted in the deaths of tens of thousands of Englishmen could never qualify. On the charge of tyranny, the King’s guilty mind (mens rea as lawyers call it) consisted in waging aggressive war against his own people for his personal advancement rather than the public interest, in seizing unlimited power to rule according to his royal will rather than law and in particular abolishing the most precious of the people’s fundamental rights, namely access to frequent Parliaments to remedy grievances.
This was essentially the same rationale the American Congress used in declaring independence from George of Hanover a century later. But in Stuart’s case, he was tried after waging a bloody war against his own people.
The importance of the tyranny charge came in its distinction from treason — waging war against the state — which was the original charge framed by the court against Stuart. Again, Robertson explained:
For Cooke, tyranny was a crime committed by absolute rulers who became tyrants not just by virtue of the servitude of their position inculcated, but by their fixed intention to govern without Parliament or an independent judiciary or any other democratic check on their power. Kings were not invariably tyrannical; monarchial government was tolerated by God and by the law of nations, so long as the monarch did not abuse his power — by, for example (and it was the example to hand), waging war on the people in order to destroy their vested political rights to an independent judiciary and to a regular Parliament for the redress of their grievances. When the ruler’s oppression becomes systematic and widespread, the people were entitled to have him arrested and put on trial. If he could claim to have acted from incompetence or honest misjudgment as to the public good, he might be permitted to abdicate in favour of an heir bound to observe constitutional limits. But if his misconduct had been motivated by a desire for absolute power, a just sentence would be death and disinheritance.
Stuart’s conviction and execution hardly settled the matter. Stuart’s son, restored to the throne as Charles II following the downfall of Oliver Cromwell’s “protectorate,” proceeded to try and execute Cooke and others responsible for his father’s trial. They were guilty, in Stuart’s mind, of “regicide” and treason against the inviolable monarch, his father. (The history of Charles I and Charles II doesn’t bode well for the future Charles III, the father of today’s bridegroom, who may want to consider adopting a new regnal name upon his accession.)
In modern times, the idea of trying certain heads of state for “war crimes” or “crimes against humanity” has gained a certain legitimacy. (Geoffrey Robertson himself sat on a United Nations tribunal trying war crimes in Sierra Leone.) But this is oftentimes just another form of the same victor’s justice the son of Charles Stuart used to sanction the murder of John Cooke. The famed Nuremberg Trials, for instance, executed a number of former German officials for the exact same sort of “war crimes” committed by the Allied powers. Even more recent United Nations tribunals are a case of stronger nation-states asserting their might over officials of less powerful nation-states.
The radical idea suggested by Cooke was that the people themselves, without regard to pre-existing state institutions, could directly try and punish tyrants themselves. Now even today, there are monarchist scholars who insist the Stuart trial was illegal because it was conducted by an ad hoc court without foundation in traditional English legal practice. But as Robertson’s book noted, Stuart was in many cases afforded greater due process rights than the typical criminal defendant of the time. Ultimately, Stuart failed to offer any defense for his actions; he never even denied the specific acts of tyranny attributed to him. He simply asserted he was the king and therefore above the law.
Today, America faces tyrants from many corners. There are literally thousands of individuals who claim their government title as a license to engage in tyranny. And these modern tyrants enjoy a degree of “sovereign immunity” that even Charles Stuart might have have deemed excessive. Just a few weeks ago, the US Supreme Court held that a local prosecutor who intentionally withholds evidence in order to frame an innocent man is subject to no liability for the offense. Every day there are new stories of various paramilitary officers — i.e., “police” — who murder, assault, and plunder the population with no fear of reprisal. And as I’ve reported for years, “regulators” like the Federal Trade Commission engage in “systematic and widespread” oppression of individual liberties “without Parliament or an independent judiciary or any other democratic check on their power.”
Now, the knee-jerk response of some will be, “You can’t compare the FTC or police officers with Charles Stuart, who literally waged war against his own people, or the Nazis, who slaughtered millions.” But that’s merely a distinction of degree. The crime of tyranny itself applies equally in all these circumstances. Theft is theft whether you steal ten dollars or ten thousand dollars.
In defining “tyranny” within a contemporary libertarian legal framework, I would suggest third things. First, tyranny is not simply corruption — such as taking a bribe — or occasional abuse of one’s office. Tyranny is the claim that possession of office entitles one to engage in a pattern of behavior that is inconsistent with the protection of individual rights, i.e. the non-aggression principle. Second, it is not a defense against tyranny to merely assert that one “acted within the law.” That is to say, one cannot usurp individual rights by imposing a series of technical “laws” that purport to retroactively authorize the tyrant’s actions. That itself is tyranny.
Finally, murder is not a required element of tyranny. A tyrant need not kill anyone to be guilty of the offense. It is sufficient that the person engage in systematic deprivation of the people’s liberty and property. This is important because, again, there is always a temptation to rationalize tyranny by comparing the offenders to the most wretched form of tyrants (e.g., Hitler).
Recognizing tyranny as a distinct crime is an important step in constructing a libertarian legal order. As John Cooke attempted to do nearly five centuries earlier, identifying and punishing tyranny is the best remedy for the corruption of common law that is “sovereign immunity.” It forces us to dissolve the abstraction of “the state” into its component individuals and determine actual responsibility for the deprivation of life, liberty, and property.