Thieves of State: Why Corruption Threatens Global Security (25 page)

Throughout this protracted struggle, petitions and pamphlets kept citing a collection of “freedoms, rights, customs, traditions, and privileges” as a basis for the new contractual form of government.
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Those rights were enumerated in charters that Low Country notables had in fact made their rulers sign upon accession. Usually the princes put their seal to these papers during a public ceremony splendid with fanfare and pageantry: the lord’s ritual “Entry” into town. The contractual nature of the documents, which stipulated that subjects could refuse obedience in case of infraction, laid the foundations for the remarkable constitutionalism of the Dutch Revolt.
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The texts themselves are detailed. Clauses prohibit the purchase of government office, require functionaries to “be content [with] a reasonable salary” and not extort more from the people. They prohibit arbitrary arrest and ad hoc tolls on the rivers and roads. They spell out the duties of judicial officers and require that locals, sensitive to the opinion of their neighbors, be chosen for government positions.
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The charters—the foundations and origin of modern democracy—were aimed largely at curbing corruption.

D
URING THE
blood-soaked years of their never-ending revolt, thousands of Dutch refugees flung themselves into their boats and crossed the North Sea to England. Some eight thousand parishioners crowded the Dutch Protestant church in London by late in the century.
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English translations of tracts and pamphlets arguing the rebels’ cause hit the streets within weeks of their writing, no doubt influencing the thought of a generation of Englishmen. Queen Elizabeth even provided some military support to the nascent Dutch republic. (She provided more helpful assistance by crushing the Spanish Armada that Philip sent against her
realm. The ships carried an invasion force drawn from troops stationed in the Netherlands.)

But upon Elizabeth’s childless death, the son of her Catholic cousin, Mary Queen of Scots, succeeded, as James I. He lacked Elizabeth’s sympathies for the Dutch Republic. And James, just like Philip II before him, was a fervent exponent of divine right absolutism.

“God gives not kings the style of gods in vain,” reads the opening sonnet of the mirror James I wrote for his son, Prince Harry. “For on His throne His scepter do they sway/And . . . their subjects ought them to obey.”
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Emphasizing in his first speech to the Star Chamber “what a near connection there is between God and the King,” James insisted kings have no one to answer to but God alone.
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Even if subjects suffer tyranny, he told Harry, rebellion is “ever unlawful on their part.”
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Indeed, he advised his son not to suffer the least questioning of royal prerogative: “That which concerns the mystery of the King’s power is not lawful to be disputed, for that is to . . . take away the mystical reverence that belongs unto them that sit in the throne of God.”
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James I was succeeded not by this beloved first son Harry, who died young, but by a sickly and cosseted younger brother, Charles, who fully espoused his father’s doctrine of divine right rule.
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Like their Dutch neighbors, however, the English were loath to live under a government that offered no avenue of appeal.

Upon his coronation in 1626, Charles I quickly began clashing with Parliament, whose powers he begrudged. Parliament took advantage of his need for money to entrench those powers—for only Parliament could raise taxes, and it refused to do so without concessions. The king dissolved Parliament and decreed a levy without its approval. When some MPs refused to pay, he threw them in jail, thus embittering the quarrel.

At stake was the ability of England’s representative assembly to provide recourse for subjects and exercise real checks on a king who ignored their interests.

In 1628, for example, Parliament promulgated a “Petition of Right” in exchange for an appropriation for Charles. The text invoked the protections set forth in England’s own historical charter—the Magna Carta—against arrest, imprisonment, exile, or seizure of property,
except “by the lawful judgment of [a citizen’s] peers, or by the law of the land.” No one should be compelled to “yield any gift, loan, benevolence, tax, or such like charge, without common consent by Act of Parliament.”
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Charles approved the petition, but with no intention of abiding by it.

In 1629 he embarked on more than a decade of autocratic “personal rule.” But in 1639 he decided to make war on Scotland and had no choice but to call the Lords and Commons into session again to grant funds to pay for it.

The MPs seized this chance to expand their powers. Their ensuing fight with Charles was full of drama—MPs rushing to bar their doors and vote on a measure while the king’s soldiers pounded on the stout wood; bells and bonfires, posters plastered on London walls, songs and poems shouted in boozy choruses, and in 1642, Charles himself at the head of hundreds of men-at-arms, marching to Westminster to arrest five MPs.

Failing, he fled London. Parliament raised an army.

What the Lords and Commons were after by now was a true constitutional monarchy. A Grand Remonstrance and accompanying petition spelled out new conditions for a grant. Their terms enshrined no less than a coequal role for Parliament in exercising sovereign authority. “No public act . . . may be esteemed of any validity as proceeding from the royal authority unless it be done by the advice and consent of” a majority of the Privy Council. Top government appointments were to be approved by both houses, and appointees must swear to uphold the Petition of Right. Parliament was to be consulted even about the education and marriage of the king’s children since, as future officials, their personal affairs affected the public interest.
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Charles instantly grasped the revolutionary novelty of such demands. To grant them, he wrote,

were in effect . . . to depose both Our Self and Our posterity. . . . We may have swords and maces carried before Us, and please Our Self with the sight of a crown and scepter . . . but as to true and real power, We should remain but the outside, but the picture, but the sign of a king.
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The ensuing civil war would rage, with a brief hiatus, for seven years. Charles planned and commanded battles both from the field and from the bowels of castles where Parliament imprisoned him. English soldiers raped and pillaged their English neighbors.
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The Parliamentary army and the London mob grew more radically egalitarian as time went on, frightening even the House of Commons that had initiated the conflict. Eventually, the army purged Parliament and assumed decision-making power itself.

It took all that—as in the Netherlands, it took such an anguish of destruction and carnage and repeated betrayals—to drive the English to envisage severing their allegiance to Charles.

In
The Tyrannicide Brief
, a remarkable and penetrating analysis of the English Civil War, the human rights lawyer Geoffrey Robertson highlights the significance of the approach the rebels chose. Rather than commit tyrannicide (which even John of Salisbury had condoned)
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—rather than take the easy tack, in other words, of poisoning Charles, or shooting him during some “attempted escape”—the rebels put him on trial. A public trial, following standard English adversary procedure.
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The decision . . . to put Charles before a tribunal tasked to apply the common law, permitting him to justify his cause in public and requiring the prosecution to prove his guilt, was a step as unnecessary as it was unprecedented. . . . There was no example to suggest that the trial of a head of state was feasible.
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What this choice did, for the first time in modern history, was make a reigning king formally liable for the specifics of his misdeeds—not just to God in the hereafter, as the mirrors repeat, but to man, under law, in this life. A lever, based on defined legal principles, was being fashioned to provide redress.

Though it was man, not God, who would hold Charles accountable, the legal axioms used to convict him could have been taken from the pages of a number of mirrors. There was that oft-repeated adage, for example, that the guilt for subordinates’ misdeeds lies with the ruler.

“The existence of iniquitous judges,” wrote Jonas d’Orléans in 830, “is the sin of the prince.”
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Or as fourteenth-century William of Pagula put it: “He takes on the guilt of the perpetrator who neglects to fix what he can correct.”
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The principle of command responsibility was central to the prosecution brief against Charles: “The said Charles Stuart, hath
caused and procured
many thousands of the free people of this nation to be slain.”
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Prosecutor John Cooke, in what would have been his closing argument, elaborated—with an explicit repudiation of the “rogue subordinates” thesis.

Nor does the common objection “that the judges and evil counsellors, and not the king, ought to be responsible for such mal-administrations, injustice and oppression” bear the weight of a feather in the balance of right reason. For, 1) Who made such wicked and corrupt judges? Were they not his own creatures? . . .
He that does not hinder the doing of evil, if it lies in his power to prevent it, is guilty of it as a commander
.
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This was exactly the type of guilt Afghans imputed to the United States for the Karzai government’s misdeeds.

Cooke also pointed out that the king “had benefit of [the] illegal fines”
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—was, in words that Afghans might have used, profiting from corruption, and by that means implicitly approved it.

And Cooke analyzed the way purchase of office, a feature of many modern kleptocracies, allows for the wholesale capture of government institutions. “For when a man shall give five or ten thousand pounds for a judge’s place,” and the king

shall the next day send to him to know his opinion of a difference in law between the king and the subject and it shall be intimated unto him that if he do not deliver his opinion for the king he is likely to be removed out of his place the next day . . .

. . . and having gone into debt to buy that place, the man can’t afford to lose it, then “the law was as the king would have it,” and “that very act of his made the king at the least a potential tyrant.”
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On the mesmerizing occasion of the trial, which transfixed the
population of England and much of the Western world as accounts of it spread, the king refused to plead—to the great frustration of Cooke, who had counted on the legitimacy that a full, adversarial procedure would confer. The barrister produced enough evidence to take up two days of proceedings.
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But he never did deliver that closing argument, because there was no one to argue against.

Under English law at the time, silence was considered a confession.
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Charles I’s judges found him guilty and, after deep and fearful deliberation, condemned him to death. The king was executed on a frigid January 30, 1649.

And so England, like Holland before it, woke up one morning a republic—though it did not stay that way for long. Even so, the effort of groping their way toward representative government forced the English to think the mechanics through. The ideas developed during those years would inspire the American experiment a century later.

Though it was immaterial to his case against Charles, for example, Cooke took up the argument against monarchy itself. In his view, even benevolent monarchs were nefarious, “for when kings are good, the people are never jealous of their liberties, and fair language and a few good acts . . . bring the people into a fool’s paradise.”
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Cooke’s contemporary, John Milton, also writing just after Charles I’s trial, made a more elaborate argument against monarchy. “All men naturally were born free,” he took as his starting point, “born to command and not to obey.” Only because of their propensity to commit violence did they gather in towns for protection and ordain a governing authority: “not to be their lords and masters, but to be their deputies and commissioners.” Laws were made “that should confine and limit the authority of whom they chose to govern them,” to subtract “as much as might be from personal errors and frailties.”

But what if “the law was either not executed, or misapplied” ?

The only remedy left them [was] to put conditions and take oaths from all kings and magistrates at their first installment . . . who upon those terms and no other received allegiance from the people. . . . And this ofttimes with express warning, that if the king or the magistrate proved unfaithful to his trust, the people would be
disengaged. And they added also counselors and parliaments, not to be only at his beck, but with him or without him, at set times.

Thus did Milton, echoing the Dutch a century earlier, explicitly resolve the fundamental defect in the Mirrors for Princes: their failure to provide any recourse but God’s judgment against a transgressing king. “For if the king fear not God—as how many of them do not—” then what are the people to do? “If [rulers] may refuse to give account, then all covenants made with them at coronation, all oaths are . . . mere mockeries, all laws which they swear to keep made to no purpose.”

It follows, wrote Milton,

that since the king or magistrate holds his authority of the people . . . for their good in the first place and not his own, then may the people as oft as they shall judge it for the best, either choose him or reject him, retain him or depose him, though no tyrant, merely by the liberty and right of free born men to be governed as seems to them best.
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Milton had described elective kingship, or a presidency. He had built the argument for democracy—as the best practical means of guaranteeing redress of legitimate grievances, the best means of appeal here on earth.