A self-styled "country lawyer" from Salt Lake City has just returned from London, where he acted as the American judge in a fascinating British mock trial of George Washington for treason.
Washington was acquitted.Discussing it in his chambers, A. Sherman Christensen, a respected federal judge for 36 years, animatedly described it as the "experience of a lifetime."
A TV version of the trial to be shown on the BBC in Britain runs four hours. Christensen says the American version will probably be cut to 1 1/2 hours. When it is shown, it will be well worth seeing - not only to see Washington vindicated -but to witness the blending of two great, complementary systems of justice.
Christensen, who at 85 is unusually vigorous and articulate, is a pioneer in the American Inns of Court movement, now 10 years old and boasting 124 inns in 36 states with more than 7,500 members. Since Christensen has a reputation as a jurist of exceptional sensitivity and disarming courtesy, it is fitting that he should spearhead a movement that accents skills, ethics, civility and professionalism in the practice of law.
The American Inns of Court is patterned after the venerable English Inns of Court in London, which date back to the late 1400s. They were established as fraternal residences for the Royal Court's entourage of practicing barristers. Because of the free exchange of ideas at the Inns, the legal practice in Britain became more unified and standards of professional competence, etiquette and ethics emerged.
It was the connection between two Inns of Court that led to the mock trial. Lord Goff of Chieveley, a "law lord" of the English House of Lords, a position equivalent to a U.S. Supreme Court justice, issued a friendly challenge last June to the American Inns of Court Foundation meeting in Washington. He said George Washington was a traitor and should have been tried for high treason.
The late 17th-century penalty for treason was severe. A convicted person was drawn (dragged to the gallows), usually with a blanket or sled to avoid abrasion, then hanged and his body quartered, with its parts to be at the disposition of the king - hence the expression "drawn and quartered."
The American attorneys, led by Michael Coffield and Jim Figliulo of the Chicago Inn of Court, took up the challenge and said, "We'll defend George Washington if you really want to indict him." Lord Goff obliged, and an elaborate mock trial was scheduled for Oct. 18 at one of the shrines of legal London - the high-walled, stained-glass, Victorian splendor of the Great Hall of Lincoln's Inn.
The trial was set in 1779, some time after the Declaration of Independence, under the imaginary premise that Gen. George Washington had been indicted for treason and returned to London to face and defend the charge before a British court. Treason was defined on the basis of the Statute of Treasons of 1351, for "levying war against the king."
Washington, his white hair tied back in a bow and dressed in the royal blue tunic of commander-in-chief of the colonial forces, was portrayed with solemn dignity by William Sommerfield of Philadelphia. To the American side, Washington was the "foremost example of how the crown broke the social contract with its colonial subjects, how it forced them to take a stand, not out of treason, but out of reason." Benjamin Franklin and Thomas Jefferson acted as key witnesses on the American side, and Lord North and Edmund Burke on the British.
The American statesmen, in 18th-century dress, were played by members of the Philadelphia-based Royal Pickwickians, a troupe that combines acting with historical research.
Acting for the crown, Sidney Kentridge, the human rights lawyer who defended Steven Biko in South Africa, only cited the undisputed historical truth, that the accused, Washington, had organized and led the revolutionaries. In 1775, he had taken over as commander-in-chief of the colonial forces with the sole aim of overturning the crown's authority.
Michael Coffield argued for the defense, saying, "We are establishing the case that our client owed no allegiance to the crown after the British levied punitive taxation and denied the colonies democratic representation. James Figliulo said, "We have a right to defend ourselves to resist those acts of tyranny. We ask only to be free, we ask only to govern ourselves."
The law to be applied was English law. Washington had three defenses - the right of a people to rise up against oppression and a right of self-determination, the right of self-defense and provocation, and a breach of the social compact between the king and his people.
On the bench sat three judges, two British and one American: Lord Bridge of Harwich, a senior law lord; Sir Patrick Neill, a British appellate judge and one of England's leading historians; and Christensen, who deems his selection a most unusual honor.
"It was exciting to see the interface of the two systems of justice. The American lawyers who were perhaps less polished and more direct, dressed in their contemporary American business suits, and the British, calm, articulate and more disciplined in their colonial dress. The trial was a very moving one. I tried to practice judicial impartiality."
Christensen found the advocacy highly effective on both sides, and he was especially stirred by Thomas Jefferson's words. During the trial, Christensen confessed "predisposition" in view of his "sojourn in the Colonies" and his "distant acquaintance with some of the witnesses," but vowed with the other judges "to decide the case without fear or favor."
They listened to testimony for four hours. When the judgment came, it was unanimous for the acquittal of Washington. Lord Bridge began, saying that Washington had led a community that believed it was being intolerably oppressed by an imperial government thousands of miles away. "The colony had every right to protect itself. I reject the crown case," he said.
"I could not match the polish of the British judges or their sophisticated references to British history," says Judge Christensen. "My contribution may have been in recognizing the synergistic relationship of the three defenses, and distinguishing between individual unregulated self-determination - which was not what the Revolution was about - and the self-determination of a people fighting against insufferable oppression and discrimination. I asked Lord North what single unalienable right, if any, were recognized by the crown, and he said, `The right to protection by our law.' That was the heart of the case. If it were the only right protected it should have been enough to effect Washington's release."
In the end, says Christensen, "it was British law that oppressed the Americans as much as British actions did. To give the Colonies the right only to the laws that were oppressing them would be like sending lettuce home with a rabbit."
It only took about five minutes for the judges to reach their decisions, and about 30 minutes to deliver their concurring opinions. That process was criticized by some journalists covering the trial, who thought the judges should have deliberated longer. But Christensen maintains that by agreed procedure the decisions were reached independently, and no deliberation by the judges was necessary.
When the verdict was announced, says Christensen, Washington became subject to "immediate discharge. In triumph, yet with reserve and dignity, he got up and walked the length of the Great Hall, and everyone - Americans and British alike - got up and cheered. At that point, I'm afraid I may have lost my judicial composure."
The only room for regret lies in the fact that George Washington himself was not present to see his role - and by implication the colonial role - in the American Revolution vindicated in a British court.
It was an event of the ages.