Legal Affairs

May|June 2004

Charles Was First

England introduced the world to "terror" more than 150 years before the French revolutionaries usually credited with the coinage.

By James Pfander

THE UNITED STATES IS NOW FIGHTING A WAR on "terrorism," but are we sure what the word means? Americans generally think of it in criminal terms, seeing terrorism as violence against civilians intended to cause fear or intimidation either to destabilize an existing government or to advance a political or religious cause. But as many who live around the world point out, freedom fighters always look like terrorists to the regime under attack. Because of this tension, international law has yet to settle on a satisfactory definition of terrorism. But we do know one thing: Terrorism now means something very different from what it once did.

The Oxford English Dictionary and most observers who have remarked on the matter trace the origins of the term to the French Revolution's "Reign of Terror" in 1793-94, in which supposed counterrevolutionaries were tried and executed by special tribunals. In this case, "terrorism" was state-sponsored violence by the party in control of the government used to consolidate power through intimidation. Robespierre and the political group he led, the Jacobins, gave the term its overtones of revolutionary zeal. By proclaiming a "Reign of Terror," the Jacobins stepped outside the law to mete out a harsher form of retribution than normal due process would support.

Edmund Burke's 1790 critique of the French Revolution's excesses helped shape English attitudes toward the Revolution and the meaning of "terror." By the time Thomas Carlyle's history of the Revolution appeared in 1837, "Reign of Terror" had entered the language as a description of the tumult's bloodiest phase. A generation later, Charles Dickens's A Tale of Two Cities, which drew on Carlyle's history, presented the reign as the definitive example of terrorism. Today, philologists and other academics continue to date terrorism to the French Revolution.

The focus on France has obscured an important piece of English history, however. More than 150 years before the Jacobins ruled in Paris, Charles I began what he called a campaign of "Terror" in the countryside of England. The year was 1625, and England, as often happened then, was embroiled in a domestic religious dispute that also had foreign overtones.

Charles sought peace at home and abroad by putting together a military force. He massed 14,000 soldiers in Dover, intending to send them across the English Channel to press the war against Spanish allies in Europe. But he failed to provide adequately for his men, foisting unpaid and starving soldiers on the region. The soldiers grew restive, waiting for food, drink, and payment for their services. The resulting clamor produced civil disorder, with crimes ranging from stealing sheep to rioting to rape.

In response, Charles imposed martial law and applied it to soldiers and civilians alike. It was in the commission authorizing the imposition of martial law that Charles proposed "Terror" as a means of control. The commission empowered specified individuals "to be executed and putt to Death according to the Lawe Marshall for an Example of Terror to others, and to keepe the reste in due Awe and Obedience."

Although historians dispute the extent to which the king's officers employed martial law as a basis for executing civilians, "Terror" meant more or less the same thing here as it later did during the French Revolution: the rule of summary justice, meted out by military officials acting without juries, to produce "awe and obedience" in the target population. In both cases, the ruling party sought to intimidate a civilian population by threatening execution. The word "terror" described its work.

THE USAGE IN FRANCE AND ENGLAND suggests that "terrorism" is etymologically linked to "deterrence," which comes from the Latin deterrere, meaning "to frighten." The Latin in terrorem springs from the same root. Black's Law Dictionary states that in terrorem populi—frightening the people—was a required element of the crime for someone indicted under British common law for rioting.

English and French law embraced the idea that official actions could be taken for their in terrorem effect. Deterrence apparently was uppermost in the mind of Charles I in 1625: He thought an example of terror would raise the level of compliance with the law among civilians and soldiers, reducing the need for more widespread punishment. The deterrence rationale comes through clearly in the commission's explanation of its purpose:

And to the end that all Disorders and Outrages, to the Disturbance of Our Peace, and the Prejudice of our loveing Subjects may be tymely prevented, Wee being more desireous to keepe Our People from doeing Mischiefe, than to have Cause to punish them for doeing the same.

The emphasis on deterrence accounts for the public nature of the executions. Deterrence also comes through as the primary goal when martial law was later imposed in England and its colonies. During the Seven Years' War in North America in the mid-18th century, British forces called for hanging civilians and then leaving their bodies to rot until a defendant's "bones shall drop asunder, as a Terror to all evil minded people."

IT IS QUITE POSSIBLE THAT SIMILAR USAGE of the word "terror" appeared even before the cited 1625 English documents. But the importance of this example lies in its connection to the way observers later described the Reign of Terror in France. The English experience of being intimidated by the threat of summary justice helps explain why English observers later seized on the concept of terrorism to describe what they saw in France.

Terrorism as state-sponsored violence retained its meaning through the early years of the 20th century. Following the Russian Revolution, Leon Trotsky's defense of terrorism designed to benefit the proletariat, for example, paralleled the Jacobins' defense of their state terror. But the last 50 years or so have witnessed not only the continuation of state-sponsored terrorism but also the rise of an anti-state form of terrorism, of which the September 11 attacks are an indelible example. With the changing face of terrorism, we have lost the early usage: We rarely associate terrorism with the imposition of martial law and rarely see the victims of terrorism as a civilian population denied due process during times of public insecurity. Yet perhaps we can find a lesson for today in the term's original meaning.

Charles I's "Terror" did not lead him to a happy end. He was beheaded in 1649, and England's Glorious Revolution 40 years later made reversing the royal system of military justice a central aim. While authorizing the use of martial law, the Revolution limited the law's reach to the military. By the century's end, civilians were not subject to summary justice except in narrowly defined times of military conflict or open rebellion. Civilians enjoyed the rights to counsel and trial by jury and the privilege of a habeas corpus writ to test the legality of government detention.

These developments barring the extension of military justice to the English people profoundly influenced the founders of the United States. They built into the Constitution a series of safeguards against the extension of martial law, forbidding the suspension of the writ of habeas corpus except during rebellion or invasion. The due process clause permits military justice but restricts its application to the armed forces or to the militia during times of war. The great antebellum Supreme Court justice Joseph Story celebrated these due process guarantees as a counterweight to unchecked powers of executive confinement, which he described as a dangerous engine of arbitrary force.

President George W. Bush's proposed use of military tribunals for the detention and eventual trial of alleged terrorists and enemy combatants directly descends from Charles's use of military justice. It can claim no legitimate roots in the opposition to that form of justice that inspired the writers of our Constitution.

Prisoners are held at Guantanamo Bay based on Bush's claim that Taliban and al Qaeda forces are unlawful combatants and don't enjoy the protections of the Geneva Convention. His decision to detain some U.S. citizens indefinitely relies on a similar claim—that their status as enemy combatants renders them unfit for certain constitutional protections. The possibility of criminal punishment before a military tribunal looms as a real possibility for these detainees, though the government's mandate for tribunals now officially applies only to aliens.

As the story of Charles I shows, history gives the president reason to proceed cautiously. While Bush defends military tribunals as an essential part of an effective war on terrorism, the harsh justice they exercise may be used as an "Example of Terror to others, and to keepe the reste in due Awe and Obedience." When we set out to make an example of terrorists, we may end up terrorizing ourselves.

James Pfander is the Prentice H. Marshall Professor of Law at the University of Illinois College of Law.



					May\|June 2004 Charles Was First England introduced the world to "terror" more than 150 years before the French revolutionaries usually credited with the coinage. By James Pfander THE UNITED STATES IS NOW FIGHTING A WAR on "terrorism," but are we sure what the word means? Americans generally think of it in criminal terms, seeing terrorism as violence against civilians intended to cause fear or intimidation either to destabilize an existing government or to advance a political or religious cause. But as many who live around the world point out, freedom fighters always look like terrorists to the regime under attack. Because of this tension, international law has yet to settle on a satisfactory definition of terrorism. But we do know one thing: Terrorism now means something very different from what it once did. The Oxford English Dictionary and most observers who have remarked on the matter trace the origins of the term to the French Revolution's "Reign of Terror" in 1793-94, in which supposed counterrevolutionaries were tried and executed by special tribunals. In this case, "terrorism" was state-sponsored violence by the party in control of the government used to consolidate power through intimidation. Robespierre and the political group he led, the Jacobins, gave the term its overtones of revolutionary zeal. By proclaiming a "Reign of Terror," the Jacobins stepped outside the law to mete out a harsher form of retribution than normal due process would support. Edmund Burke's 1790 critique of the French Revolution's excesses helped shape English attitudes toward the Revolution and the meaning of "terror." By the time Thomas Carlyle's history of the Revolution appeared in 1837, "Reign of Terror" had entered the language as a description of the tumult's bloodiest phase. A generation later, Charles Dickens's A Tale of Two Cities, which drew on Carlyle's history, presented the reign as the definitive example of terrorism. Today, philologists and other academics continue to date terrorism to the French Revolution. The focus on France has obscured an important piece of English history, however. More than 150 years before the Jacobins ruled in Paris, Charles I began what he called a campaign of "Terror" in the countryside of England. The year was 1625, and England, as often happened then, was embroiled in a domestic religious dispute that also had foreign overtones. Charles sought peace at home and abroad by putting together a military force. He massed 14,000 soldiers in Dover, intending to send them across the English Channel to press the war against Spanish allies in Europe. But he failed to provide adequately for his men, foisting unpaid and starving soldiers on the region. The soldiers grew restive, waiting for food, drink, and payment for their services. The resulting clamor produced civil disorder, with crimes ranging from stealing sheep to rioting to rape. In response, Charles imposed martial law and applied it to soldiers and civilians alike. It was in the commission authorizing the imposition of martial law that Charles proposed "Terror" as a means of control. The commission empowered specified individuals "to be executed and putt to Death according to the Lawe Marshall for an Example of Terror to others, and to keepe the reste in due Awe and Obedience." Although historians dispute the extent to which the king's officers employed martial law as a basis for executing civilians, "Terror" meant more or less the same thing here as it later did during the French Revolution: the rule of summary justice, meted out by military officials acting without juries, to produce "awe and obedience" in the target population. In both cases, the ruling party sought to intimidate a civilian population by threatening execution. The word "terror" described its work. THE USAGE IN FRANCE AND ENGLAND suggests that "terrorism" is etymologically linked to "deterrence," which comes from the Latin deterrere, meaning "to frighten." The Latin in terrorem springs from the same root. Black's Law Dictionary states that in terrorem populi—frightening the people—was a required element of the crime for someone indicted under British common law for rioting. English and French law embraced the idea that official actions could be taken for their in terrorem effect. Deterrence apparently was uppermost in the mind of Charles I in 1625: He thought an example of terror would raise the level of compliance with the law among civilians and soldiers, reducing the need for more widespread punishment. The deterrence rationale comes through clearly in the commission's explanation of its purpose: And to the end that all Disorders and Outrages, to the Disturbance of Our Peace, and the Prejudice of our loveing Subjects may be tymely prevented, Wee being more desireous to keepe Our People from doeing Mischiefe, than to have Cause to punish them for doeing the same. The emphasis on deterrence accounts for the public nature of the executions. Deterrence also comes through as the primary goal when martial law was later imposed in England and its colonies. During the Seven Years' War in North America in the mid-18th century, British forces called for hanging civilians and then leaving their bodies to rot until a defendant's "bones shall drop asunder, as a Terror to all evil minded people." IT IS QUITE POSSIBLE THAT SIMILAR USAGE of the word "terror" appeared even before the cited 1625 English documents. But the importance of this example lies in its connection to the way observers later described the Reign of Terror in France. The English experience of being intimidated by the threat of summary justice helps explain why English observers later seized on the concept of terrorism to describe what they saw in France. Terrorism as state-sponsored violence retained its meaning through the early years of the 20th century. Following the Russian Revolution, Leon Trotsky's defense of terrorism designed to benefit the proletariat, for example, paralleled the Jacobins' defense of their state terror. But the last 50 years or so have witnessed not only the continuation of state-sponsored terrorism but also the rise of an anti-state form of terrorism, of which the September 11 attacks are an indelible example. With the changing face of terrorism, we have lost the early usage: We rarely associate terrorism with the imposition of martial law and rarely see the victims of terrorism as a civilian population denied due process during times of public insecurity. Yet perhaps we can find a lesson for today in the term's original meaning. Charles I's "Terror" did not lead him to a happy end. He was beheaded in 1649, and England's Glorious Revolution 40 years later made reversing the royal system of military justice a central aim. While authorizing the use of martial law, the Revolution limited the law's reach to the military. By the century's end, civilians were not subject to summary justice except in narrowly defined times of military conflict or open rebellion. Civilians enjoyed the rights to counsel and trial by jury and the privilege of a habeas corpus writ to test the legality of government detention. These developments barring the extension of military justice to the English people profoundly influenced the founders of the United States. They built into the Constitution a series of safeguards against the extension of martial law, forbidding the suspension of the writ of habeas corpus except during rebellion or invasion. The due process clause permits military justice but restricts its application to the armed forces or to the militia during times of war. The great antebellum Supreme Court justice Joseph Story celebrated these due process guarantees as a counterweight to unchecked powers of executive confinement, which he described as a dangerous engine of arbitrary force. President George W. Bush's proposed use of military tribunals for the detention and eventual trial of alleged terrorists and enemy combatants directly descends from Charles's use of military justice. It can claim no legitimate roots in the opposition to that form of justice that inspired the writers of our Constitution. Prisoners are held at Guantanamo Bay based on Bush's claim that Taliban and al Qaeda forces are unlawful combatants and don't enjoy the protections of the Geneva Convention. His decision to detain some U.S. citizens indefinitely relies on a similar claim—that their status as enemy combatants renders them unfit for certain constitutional protections. The possibility of criminal punishment before a military tribunal looms as a real possibility for these detainees, though the government's mandate for tribunals now officially applies only to aliens. As the story of Charles I shows, history gives the president reason to proceed cautiously. While Bush defends military tribunals as an essential part of an effective war on terrorism, the harsh justice they exercise may be used as an "Example of Terror to others, and to keepe the reste in due Awe and Obedience." When we set out to make an example of terrorists, we may end up terrorizing ourselves. James Pfander is the Prentice H. Marshall Professor of Law at the University of Illinois College of Law.