High Court Rules for French at Agincourt

Mock Trial at Shakespeare Theatre Results in Big Damages Against Henry V

(Wed, March 16, 2010 – Sidney Harman Hall, Washington, DC) The Supreme Court of the Amalgamated Kingdom of England and France – a dazzling collection of judicial talent headed by Justice Ruth Bader Ginsburg as Chief Justice – unanimously ruled that King Henry V’s slaughter of French prisoners of war was legally unjustified and awarded unspecified damages to the POW estates.

Judge Merrick B. Garland, Judge David S. Tatel, Justice Samuel Alito and Justice Ruth Bader Ginsburg (Photo: Kevin Allen)

The ruling was a huge triumph for the French Civil Liberties Union, which had pressed the cause of the French POWs and their families unsuccessfully through a Global War Crimes Tribunal, the District Court of Agincourt and the Court of Appeals before the high court made its ruling. French attorneys M. Gregory S. Garre, a former U.S. Solicitor General now partner in the D.C. firm of Latham & Watkins LLP, and M. Viet Dinh, Georgetown Professor of Law and Principal of Bancroft Associates PLLC, put the lie to the shibboleth that “justice delayed (by six hundred years) is justice denied” by winning against the English.

Readers who have already seen the Shakespeare Theatre Company’s production of Henry V are conversant with the facts: The Archbishop of Canterbury convinced Henry that the French wrongfully passed over Henry’s great-grandfather, the English King Edward III, for the French throne and that he, Henry, was the true and lawful ruler of France. Henry upholstered his claim with a military campaign, but he was woefully outnumbered by the French army. At Agincourt, against five to one odds, Henry defeated the French – but when he heard rumblings that the French were sending reinforcements, he concluded that he could not waste personnel in guarding the French prisoners of war and had them slaughtered. (His attorneys also argued that he ordered the execution of the prisoners in reprisal for the French killing of children Henry had assigned to carry the English luggage.)

Here, as Paul Harvey might have said, is the rest of the story: when the dust cleared, the Global War Crimes Tribunal, at the instigation of the FCLU, arrested Henry and the Archbishop of Canterbury and charged them with the death of all French non-combatants and the execution of the Prisoners of War. After a lengthy trial, the GWCT cleared the defendants of both charges, ruling that Henry’s war was legal, that no non-combatant was killed unlawfully, and that Henry bore no criminal responsibility for the death of the POWs.  The FCLU immediately sued in civil court, on behalf of the estates of the POWs. After a fourteen-month bench trial, the Judge concluded that he was bound by the GWCT’s conclusions of law, thus ruling for the English. The Court of Appeals affirmed without opinion, clearing the matter for the Supreme Court’s determination.

M. Garre, opening argument for the French, surprised the sold-out house by appearing to go for the home run – challenging the legitimacy of Henry’s claims in the first place. After King Phillip IV of France died, Garre observed, the French crown had passed, in succession, to his three sons – Louis X, Phillip V, and Charles IV. None of these three Kings had surviving male children when they died. Henry argued that the crown should have passed to Phillip IV’s surviving child – his daughter Isabella, or to her son, the English King Edward III. Instead, it went to her cousin, Phillip VI, under the French Salic law, which prohibited descent of the crown through the female line. Henry claimed that Salic law was wrong and inapplicable, and his claim to the French kingship, as a descendent of Edward, was legitimate. This was Henry’s justification for the invasion. But Henry was wrong, Garre argued. If Salic law hadn’t been applied, the crown would have gone through King Phillip V’s daughter to his male grandson. Henry was a loser with or without Salic law, Garre asserted.

It was clear from Justice Ginsburg’s first questions why Garre had taken such an audacious tact. She asked whether the doctrine of sovereign immunity – the legal principal that “the King can do no wrong” and thus could not be sued – robbed this (and all) courts of the right to hear the FCLU’s case. No, replied Garre, because this is a French court as well as an English one – and Henry is not the legitimate King of France!

Garre stuck to his guns, even under the fierce judicial cross-examination of the surprise star of last night’s trial, Court of Appeals Judge David S. Tatel. Tatel is the sort of judge lawyers dream about at night – in their nightmares. Masking his laser-hot, surgically precise questions with a patient, even gracious demeanor, Tatel reduced even the prodigiously gifted lawyers appearing before him last night to stuttering, and would have reduced lesser legal lights to tears and simpering. But Garre stubbornly insisted, even in the face of Judge Tatel’s withering cross-examination, that France had persistently denied descent of the crown through the female line, and in the end convinced the jurists that Henry’s claim to the throne had no basis in law.

This opened the door for Garre’s colleague, M. Dinh, to argue that Henry, now not immune to suit, was liable when he concluded – as set forth in IV.vi – that when “The French have reinforced their scatter’d men:/Then every soldier kill his prisoners/Give the word through.” According to Dinh, Henry ignored the law of nations when he directed that the prisoners be killed. Rather than kill the prisoners, Dinh argued, Henry – who clearly could not have wasted his limited personnel on guarding the prisoners when the French were reinforcing themselves – should have let them go. This provoked a fearsome reaction from Judge Tatel and Judge Merrick B. Garland of the D.C. Court of Appeals, who expressed profound skepticism that the law of nations (particularly in the fifteenth century) would have required King Henry to put his own troops at risk to assure the safety of the French POWs. (Dinh replied that a broad historical view of the French would have assured the King that they were unlikely to attack).

The English counsel, Lord Kannon Shanmugam (Williams & Connelly) and Lord Miguel Estrada (Gibson Dunn & Crutcher, LLP), as perhaps appropriate for a legal team defending the lower court decision, contented themselves with parrying the French arguments rather than breaking any new legal grounds. Indeed, Lord Shanmugam, a prodigy who went to Harvard at sixteen and was the first person to join Williams & Connolly directly as a partner in twenty-two years, surfed tricky legal territory between argument and stand-up comedy during his presentation before the High Bench. Surprisingly, the British team did not attempt to argue that the Global War Crimes Tribunal’s determination was binding on the High Court, despite being urged to do so by Justice Ginsburg.

As is perhaps inevitable with any discussion of Shakespearean history, the participants evoked the present along with the past. Some of it was subtle, as when M. Garre suggested that Henry was a young man with a riotous past whose claim to the throne was open to question and who took on foreign adventures to distract attention from domestic problems. Some of it was less subtle, as when Justice Alito speculated that Henry’s problem involved his decision to release his prisoners from a “Channel Island,” where they had been previously detained.  Some of it was less subtle still, as when Lord Estrada cited, among the “medieval legal authorities” who supported King Henry’s position, the Hon. Antonin Scalia. And some was not subtle at all, as when Judge Brett M. Kavanaugh of the D.C. Court of Appeals asked Lord Estrada whether his argument that the Court should give King Henry’s military decisions wide deference was the same as U.S. King Richard XXXVII’s statement that “when the President does it, that means it’s legal.”

Though the matter was closely debated, and the ballot cast by the audience was closely counted (red and blue chads, weighed on a scale, seemed to me to slightly favor the British position), the issue was clear to the High Bench. While the Court was divided on the issue of whether Henry’s invasion of France was legal (this outcome, Ginsburg said, was influence by “large gift packages”, presumptively from the Archbishop of Canterbury) the Court unanimously found for the French on the issue of the slaughter of the POWs, under, as Justice Alito said, “evolving standards of civilization”.

Joining Justices Ginsburg and Alito and Judges Tatel, Garland and Kavanaugh on the Amalgamated French and English Supreme Court were Chief Judge Paul R. Michel of the Federal Circuit Court of Appeals and Judge Janice Rogers Brown of the D.C. Circuit Court of Appeals.

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