For some time, people have hinted darkly that we are at the brink of civil war. That seems like hyperbole with a little dollop of truth: There is a war on precedent. The national dialogue is broken. We do not feel a shared unity behind all of our differences, the essence of our democracy that made our citizenship an honor and a freely-accepted responsibility.
In Hebrew, the word for peace, shalom, comes from the root that means whole. When we feel part of a whole, we are at peace. When we are not whole, we might patch over differences with forbearance, but this is not true peace.
READ MORE from Shmuel Klatzkin: Trump Battles the Corrupt Governing Class in Court
Before the Civil War, Lincoln cautioned the country that it had become a house divided against itself. Not whole, it could not stand. Wholeness was only re-established by force, first by the defeat of the Confederate armies and then by the violent terror against the newly emancipated and enfranchised blacks that made the defeated Confederates feel whole after their defeat.
It took World War II, when tens of thousands of GIs saw the horrors of the Holocaust first hand, to awaken enough revulsion to racism to change decisively the people’s inner mind. A real revulsion to this way of treating people grew in the American heart. The change of attitude brought about change deeper and more permanent than force could bring. Now, there is no part of American society that believes in racism aside from the lunatic fringe. The legal and cultural structures that racism had animated have been demolished to the sub-foundation; all that is left is the natural preference and bias that makes anyone root for their family or hometown club. This we know how to contain and civilize when we act as the responsible adults we fancy ourselves being. (RELATED: The Systemic Racism of the American Left)
So, the paradigm in history that can give us our bearings today is not so much America’s Civil War but the more complex English Civil War.
As today, it was a struggle between an empowered elite and a other people feeling ill-used by that elite and ready to assert themselves against it. As today, it got nasty and it got complex, as the struggle would bring about different alignments of the various groups of people struggling to secure their own interests.
It started as a struggle between the king and Parliament. The goal of the King, Charles I, was to concentrate all power in himself. Like his father, he believed in the absolute sovereignty of the monarchy, a practice already in place in the Latin world, especially in France and Spain.
Opposing the king at the start was an influential group of Parliament men who united over the idea of ancient liberties enshrined in the unwritten constitution of England. King Charles (first of that name in England) saw he and they were on a collision course. He forced a confrontation. He ignored the precedent that new taxes had to be approved by Parliament, and imposed unauthorized levies on the people. Parliament fought back and after years of growing frustration, it finally came to war.
The country was fairly evenly divided. The King’s high-handedness had lost him the devotion of many of his people. Religious interests got involved, the King being supported by the episcopal Church of England, and Parliament by an uneasy alliance of Presbyterians and congregationalist Puritans. No side would compromise, the battles see-sawed, and there was no clear victor until a fiery new star, Oliver Cromwell, took the lead against the King and defeated him, leading a Puritan army that mastered everyone else. (READ MORE: Seventeenth Century Constitutionalism Saved Britain — Can Its Understandings Save Us?)
Cromwell was not for a constitution; he was for himself. He accepted Parliamentary rights no more than Charles had. As for Charles: Cromwell’s legitimacy depended on Charles’ criminality. He moved quickly to try Charles, leaving no doubt of what the verdict would have to be and the sentence that would follow.
But as it gradually becomes clear to the people that these trials are political … the national mood changes.
But of what crime was Charles guilty? In the Middle Ages, kings had been killed, but it was always pretended that it was never done with the knowledge or consent of the king or the nobles who took his place. In the new age, with the common foundations of the Middle Ages destroyed, those who ruled had to establish and demonstrate the legitimacy of their power. Thus, Cromwell had to try Charles in a solemn legal procedure.
The problem was — there was nothing in English law about trying a king. There was an even greater problem in the precedents of English law. As Winston Churchill pointed out in his history of Britain:
“In vain did Fairfax [a Cromwell ally] point out that the stroke which killed the captive King would make his son in Holland the free possessor of all his rights.”
But tyrants don’t worry about legitimacy. They just use it as a show. Cromwell would rule, not the law. Charles would be tried, convicted, and executed.
The law, however, still held the hearts of the people. Churchill wrote:
“No English jurist could be found to frame the indictment or invent the tribunal. A Dutch lawyer, Isaac Dorislaus, who had long lived in England, was able to deck what was to be done in the trappings of antiquity. The language of the order convening the court had no contact with English history.”
The extraordinary power of English law had been in its hold on the hearts of the people. The greatest scholar of law of that day, John Selden, made a brilliant case for English law streaming out from Jewish law — passed down largely by the people, devoted wholeheartedly to the law they believed guaranteed their God-given dignity.
This trial was a turning point. Charles was unpopular when the war had begun. But now, it was clear that the King’s trial was itself an insult to the law that bound the people together and had their loyalty.
Churchill described the scene at the end of the trial, after the King was not allowed to speak:
The overwhelming sympathy of the great concourse gathered in Westminster Hall was with the King. When, on the afternoon of the final sitting, after being refused leave to speak, he was conducted from the Hall it was amid a low, intense murmur of “God save the King.” But the soldiers, primed by their corporals, and themselves in high resolve, shouted, “Justice! Justice! Execution! Execution!”
As a result, Churchill writes:
“This was not only the killing of a king, but the killing of a king who at that time represented the will and the traditions of almost the whole British nation.”
We can learn from today from that infamous trial. In our divided nation, a side that is Cromwellian in their disregard for any precedent, religious, cultural, or legal, that would limit their power, is attempting to put the stamp of legality on their attempt to eliminate the greatest obstacle to their rule. Never have we so blatantly criminalized political opposition. (READ MORE: The Madness of Criminalized Politics)
The people do believe that no one is above the law, as Common Law tradition teaches. We all derive our legitimate power only on the conditions set by “Nature and Nature’s God.”
But as it gradually becomes clear to the people that these trials are political, and as the horror of that fatal subversion of their own democracy sinks in, the national mood changes.
In his power grab, Charles frittered away his popularity. His deadly enemies restored it to him. Cromwell transformed the King into a martyr. As Fairfax had told prophetically, the law decreed that Charles’ exiled son should succeed him. And shortly after Cromwell’s death, Charles II was welcomed home joyously — but under constitutional limitations that established forever a balance of power.
Churchill described the scene of the Return of the King:
All around the masses, rich and poor, Cavalier and Roundhead, Episcopalian, Presbyterian and Independent, framed a scene of reconciliation and rejoicing without compare in English history. It was England’s supreme day of joy.
I think in our own American way, we can feel the reverberations of the events of the English Civil War and its aftermath. The overreach of the those who have set themselves above the Constitution and its precedents reveal themselves as contemptuous of the people whose sovereignty the Constitution upholds. Just as then, a flawed king was transformed into a symbol of the nation, so a flawed Trump is being transformed through the odious perversion of law and precedent of those who, afraid of his political abilities, would end his life in prison.
