ACTING IN A JUDICIAL MANNER

Charles I

The 20^th January is a day crowded with incident, particularly with matters pertaining to people acting in a judicial manner.

On the 20^th January 1649, the Trial of Charles I for treason and other ‘high crimes’ began. The House of Commons passed an Act of Parliament creating a court for Charles' trial.

The charge against Charles I stated that the king, "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...", that the "wicked designs, wars, and evil practices of him, the said Charles Stuart, have been, and are carried on for the advancement and upholding of a personal interest of will, power, and pretended prerogative to himself and his family, against the public interest, common right, liberty, justice, and peace of the people of this nation."

The indictment against the king therefore held him "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."

The High Court of Justice established by the Act consisted of 135 Commissioners but only 68 ever sat in judgement (all firm Parliamentarians); the prosecution was led by Solicitor General John Cooke. Charles' trial on charges of high treason and "other high crimes" began on 20 January 1649, but Charles refused to enter a plea, claiming that no court had jurisdiction over a monarch. He believed that his own authority to rule had been given to him by God and by the traditions and laws of England when he was crowned and anointed, and that the power wielded by those trying him was simply that of force of arms. Charles insisted that the trial was illegal, explaining, "Then for the law of this land, I am no less confident, that no learned lawyer will affirm that an impeachment can lie against the King, they all going in his name: and one of their maxims is, that the King can do no wrong." When urged to enter a plea, he stated his objection with the words: "I would know by what power I am called hither, by what lawful authority...?" The court, by contrast, proposed an interpretation of the law that legitimised the trial, which was founded on

"...the fundamental proposition that the King of England was not a person, but an office whose every occupant was entrusted with a limited power to govern 'by and according to the laws of the land and not otherwise'."

Over a period of a week, when Charles was asked to plead three times, he refused. It was then normal practice to take a refusal to plead as pro confesso: an admission of guilt, which meant that the prosecution could not call witnesses to its case. However, the trial did hear witnesses.

The King was declared guilty at a public session on Saturday 27 January 1649 and sentenced to death. Fifty-nine of the Commissioners signed Charles' death warrant.

The death warrant of Charles I and the wax seals of the 59 Commissioners    

I am struck in particular by the so-called normal practice to take refusal to plead as pro confesso, an admission of guilt. It brings to mind the trial of Sir Thomas More held in Parliament a century earlier. More was charged with high treason for denying the validity of the Act of Succession. More, relying on legal precedent and the maxim "qui tacet consentire videtur" (silence presumes consent), understood that he could not be convicted as long as he did not explicitly deny that the king was Supreme Head of the Church, and he therefore refused to answer all questions regarding his opinions on the subject. So did silence on the part Charles I imply consent or guilt? Is consent the same as guilt? Either way, silence did not deter those acting judicialy from convicting and executing the accused.

Apparently on the 20^th January 1920 the American Civil Liberties Union was founded. The ACLU is a nonpartisan non-profit organisation whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person, in the United States, by the Constitution and laws of the United States." It works through litigation, lobbying, and community education.

A year later, on the 20^th January 1921, another constitution was ratified. It was the first Turkish Constitution that consecrated the principle of national sovereignty. It was a relatively short text consisting of twenty-three articles, the first nine articles laying out the principles upon which the state would be founded. It delegated the executive and legislative prerogatives to "the only true delegate of the sovereignty of the Nation", the National Assembly that was to be elected by direct popular vote. After the proclamation of the Republic on October 29, 1923, the executive powers were to be exercised by the President and the Council of Ministers on behalf of the National Assembly.

▪   Article 1: Sovereignty is vested in the nation without condition. The governmental system is based on the principle of self-determination and government by the people.

▪   Article 2: Executive power and legislative responsibility is exercised by and concentrated in the hands of the Grand National Assembly which is the sole and real representative of the nation.

▪   Article 3: The Turkish State is governed by the Grand National Assembly (Büyük Millet Meclisi) and its government is entitled 'the Government of Grand National Assembly' (Büyük Millet Meclisi Hükûmeti).

▪   Article 4: The Grand National Assembly is composed of members who are elected by the people of the provinces.

▪   Article 5: Elections to the Grand National Assembly are held every two years. The duration of membership is limited to two years but re-election of a member is possible. The former assembly remains in office until the new assembly convenes. When holding a new election seems to be impossible the legislative period can be extended by only one year. Each member of the Grand National Assembly is not only a representative of the province by which he is elected but of the whole nation.

▪   Article 6: The General Assembly of the Grand National Assembly convenes of its own accord on the first day of November.

▪   Article 7: The basic rights of the application of the ordinances of the sacred law; the promulgation, amendment, and abrogation of all laws; the concluding of treaties and peace; the promulgation of the defence of the fatherland (i.e., the declaration of war) belong to the Grand National Assembly. The preparation of laws and regulations will be guided by juridical and religious provisions, which best conform to the modus operandi of the people and the needs of the times, as well as established customs. The functions and responsibilities of the Council of Ministers shall be fixed by a special law.

▪   Article 8: The government of the Grand National Assembly exercises the executive function through ministers who are elected according to its special law. The Grand National Assembly directs the ministers on executive affairs and changes them when necessary.

Article 9: The Head of the Grand National Assembly who is elected by the General Assembly is the Head of the Grand National Assembly for one electoral period. With this status, he is entitled to sign on behalf of the Assembly and to approve the decisions of the Council of Ministers. The Council of Ministers elects one member from among its number as the head of the Council of Ministers. However, the Head of the Grand National Assembly is the natural head of the Council of Ministers.

Note the provisions of Article 7. “The preparation of laws and regulations will be guided by juridical and religious provisions, which best conform to the modus operandi of the people and the needs of the times, as well as established customs. The functions and responsibilities of the Council of Ministers shall be fixed by a special law.” A rather curious and worrying basis for the rule of law.  Whilst seeming to encompass democratic principles, it is hardly likely that laws, which best conform to the ‘ways people have of doing things’ and the requirements of the time (what is expedient) and local customs would constitute an objective and equal system of justice. This article was in fact replaced by the far more satisfactory Article 2 of the 1961 Turkish Constitution:

Article 2 - The Turkish Republic is a nationalistic, democratic, secular and social state, governed by the rule of law, based on human rights and fundamental tenets set forth in the preamble.

It was also on the 20^th January 1942 that the Wannsee Conference was held. The Conference was a meeting of senior officials of the Nazi German regime, held in the Berlin suburb of Wannsee. The purpose of the conference was to inform administrative leaders of Departments responsible for various policies relating to Jews, that Reinhard Heydrich had been appointed as the chief executor of the "Final solution to the Jewish question". In the course of the meeting, Heydrich presented a plan, presumably approved by Adolf Hitler, for the deportation of the Jewish population of Europe and French North Africa (Morocco, Algeria, and Tunisia) to German-occupied areas in eastern Europe, and the use of the Jews fit for labour on road-building projects, in the course of which they would eventually die according to the text of the Wannsee Protocol, the surviving remnant to be annihilated after completion of the projects. Instead, as Soviet and Allied forces gradually pushed back the German lines, most of the Jews of German-occupied Europe were sent to extermination or concentration camps, or killed where they lived. As a result of the efforts of historian Joseph Wulf, the Wannsee House, where the conference was held, is now a Holocaust Memorial. The Wannsee Conference only lasted about ninety minutes, and for most of its participants it was one meeting among many in a busy week.

Partial Text from the Minutes of the meeting:

At the beginning of the discussion Chief of the Security Police and of the SD, SS-Obergruppenführer Heydrich, reported that the Reich Marshal had appointed him delegate for the preparations for the final solution of the Jewish question in Europe and pointed out that this discussion had been called for the purpose of clarifying fundamental questions. The wish of the Reich Marshal to have a draft sent to him concerning organizational, factual and material interests in relation to the final solution of the Jewish question in Europe makes necessary an initial common action of all central offices immediately concerned with these questions in order to bring their general activities into line. The Reichsführer-SS and the Chief of the German Police (Chief of the Security Police and the SD) was entrusted with the official central handling of the final solution of the Jewish question without regard to geographic borders. The Chief of the Security Police and the SD then gave a short report of the struggle which has been carried on thus far against this enemy, the essential points being the following:

a) the expulsion of the Jews from every sphere of life of the German people,

b) the expulsion of the Jews from the living space of the German people.

In carrying out these efforts, an increased and planned acceleration of the emigration of the Jews from Reich territory was started, as the only possible present solution.

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Holocaust denialists claim that the Wannsee Conference decided on no more than the "evacuation" of the Jewish population of Europe to the east, with no reference to killing them. In fact, Heydrich made the ultimate fate intended for the evacuees clear:

"Under proper guidance, in the course of the final solution the Jews are to be allocated for appropriate labour in the East. Able-bodied Jews, separated according to sex, will be taken in large work columns to these areas for work on roads, in the course of which action doubtless a large portion will be eliminated by natural causes. The possible final remnant will, since it will undoubtedly consist of the most resistant portion, have to be treated accordingly, because it is the product of natural selection and would, if released, act as the seed of a new Jewish revival"

Those attending the Wannsee Conference: Top row: Hofmann, Heydrich, Klopfer, Kritzinger, Bühler, Meyer, Neumann, Luther (lower level), Stuckart, Freisler. Second row: Müller, Lange, Schöngarth, Leibbrandt. Bottom left: Eichmann (display at Wannsee Conference House Museum, Berlin)

What manner of men could they have been? It is said that “No less than eight of the fifteen participants held a doctorate. Thus it was not a dimwitted crowd unable to grasp what was going to be said to them. Nor were they going to be overcome with surprise or shock, for Heydrich was not talking to the uninitiated or squeamish.