Passing bull 191 – The people and the crowd

 

 

When people come together to vote for parliament or to serve on a jury – rather similar exercises – we feel good about each other.  But if we see them come together as a lynch mob, we are revolted.  We are revolted because people following the herd instinct are behaving more like animals than human beings.  Most of us are very worried about the crowds behind the gillets jaunes in France.  People have there taken to the streets not just to protest against government but to try to bend the government to do its will.  That is a plain denial of parliamentary democracy.  That kind of government can only work if the overwhelming majority of people accept the decision of a majority.  But ever since 1789, the French have claimed the right to take to the streets to stop government taking a course they do not like.  The result is that France has not been able to push through unpopular reforms in the same way that Germany and England did.  And the result of this triumph of the people is that the people are a lot worse off.  That in turn leads to the gillets jaunes and to the President’s not being able to implement the reforms for which he was elected.  And so the cycle goes on – until one morning the French get up and see a scowling Madame LePen brandishing a stock whip on her new tricoleur dais.  She will have achieved the final vindication of the crowd – the acquisition of real power by real force.

The Bagehot column in The Economist this week is headed ‘The roar of the crowd.’  It begins: ‘The great achievement of parliamentary democracy is to take politics off the streets.’  Well, the English achieved that – but not the French.  The article goes on to refer to street protests being invoked to express ‘the will of the people.’  That bullshit phrase is or should be as alien to the English as it is to us.  It is dangerous nonsense advanced by people over the water like Rousseau – one of most poisonous men who ever lived – Robespierre, Stalin, Mussolini, Franco, and Hitler.

The article also refers to social media –the worst misnomer ever – as ‘virtual crowds online.’  It quotes an 1895 book The Crowd; A Study of the Popular Mind as saying of crowds that they show ‘impulsiveness, irritability, incapacity to reason, the absence of judgment of the critical spirit, the exaggeration of sentiments’ and says that the crowd debases the ordinary person – ‘isolated he may be a cultivated individual; in a crowd, he is a barbarian.’  That is because he has handed over the keys to his own humanity.  All this is just as spot-on for social media as it is to those whom Farage whipped up against Muslims, or those for whom Trump did the same, or those who marched last night in favour of Brexit and did so to a ghastly drum-beat that made them look so much like the English fascists from the 1930’s.

For our system to work, people have to show at least some restraint and toleration.  At least two forces are in my view at work in Australia working against us and in favour of the herd instinct of the crowd.  One is social media.  The other is the Murdoch press.  The first is obvious.  As to the second, a New Zealand observer said there were two reasons for the immoderate restraint and toleration of their government to a crisis of hate – the leadership and empathy of the leader of their government, and the absence of the Murdoch press.  In Australia, Sky News after dark regularly parades Pauline Hanson while Bolt and others defends her and while in The Australian columnists attack Muslims as jihadis in something like a frenzy.  And it was just a matter of time before they spitefully turned on the New Zealand Prime Minister and the ‘Muslimist Aljazeera’ – and of course those middle class pinkos at Fairfax and the ABC.

The people behind social media and the Murdoch press are wont to preach about freedom of speech.  The sad truth is that they go to the gutter for the same reason – for profit.

Two more points.  The current disaster in England started when they went and tested ‘the will of the people’ and got an equivocal answer – yes, leave, but on what terms? – with a majority too slim to permit a simple solution to a difficult problem to be found and implemented.  Now we have the awful and degrading spectacle of parliament behaving worse than the crowd.  And people who got where they are on a vote from the people are with a straight face saying that it would be wrong to ask the people again now that everyone knows what lies were told and who has been the worst behaved.  Indeed, their Prime Minister says a second vote would be a ‘betrayal of democracy.’  Some say an election would be better – when both major parties are hopelessly splintered and there is no reason at all to think that a reconfigured group of those responsible for the present mess might do better.

The real betrayal of democracy has taken place in America.  Trump appealed to the crowd to reject the ‘elites’ – people who know what they are doing.  Neither he nor almost everyone in his government has any idea about governing.  But his betrayal is more elemental.  A President is elected, as Lincoln said ‘of the people, by the people, for the people.’  Trump could not care less about the people.  He is only interested in that ghastly minority that is called his ‘base.’  And since he thinks his base wants him to abandon affordable health care, he will try to kill it.  And to hell with the people.

It’s not just that the policies of people like Farage, Hanson and Trump are revolting – it’s the people they get to work with them that are also revolting.

It looks like the hour of the crowd is with us again and it may never have looked worse.

Bloopers

But Trump bends history to his will.  May simply bends under the will of others.

The Weekend Australian, 30-31 March, 2019.  Mr G Sheridan

It is an interesting view of the strong man.  Amazingly, the editorial was even sillier.

Here and there – What’s all this fuss about foreigners?

 

 

When kids get control of a cubby house, the first thing that they do is to work out how to stop other kids getting in to share the spoils.  We tend to be hostile to outsiders, or foreigners – people who are sometimes called ‘aliens’. We tend to blend ‘alien’ with ‘enemy’, although our usage acknowledges the difference.  We are all apparently built that way. The process was scarily described by William Golding in Lord of the Flies.  You can see it in families, towns, cities – and in law firms.  Whether you see this impulse as one of inclusion or exclusion may depend on how you see the world at large, but being an outsider, like being a stranger, can hurt. (It was Camus who wrote a book about that.)

Ancient Athens and Rome were very fussy about who qualified for their membership, but as time went on, the Romans got more generous – you might say broad minded – about those that they would or would not let into the club, and some historians say that that this was why the empire of Rome lasted much longer and covered a much larger area than that of Athens.

When the English started their jail in this country, they brought their laws with them.  Those laws included a lot of law derived from judicial precedent as the judges over many centuries had recognised the customs of the English people until they hardened into law.  That body of law is called the common law, and it was that law that said that the white settlers in the land they would call Australia brought their English laws with them.  For a variety of reasons, the prior inhabitants were not consulted about this process.

Our legal ancestors are therefore the English.  And their ancestors were in turn the Anglo-Saxons, and before that the people of the German forests whom the Romans branded as ‘barbarians’.  (The Athenians had been even more exclusive or stand-offish.)    It is not therefore silly to say that the origins of our laws are German in nature rather than Roman.  Roman law was thoroughly received in Germany, so thoroughly that a distinguished American legal scholar, James Barr Ames, would much later be able to say, with a perfectly straight face ‘The English law is more German than the law of Germany itself.’    Roscoe Pound said the same thing, and that the doctrine of the supremacy of law goes back to a fundamental notion of Germanic law.

How then did our legal ancestors deal with foreigners?  (I must confess to a preference for that word over ‘aliens,’ as the latter for me summons up images of flying saucers, Martians, and Alec Guinness waving a funny kind of a sword.)  If you were born in England, you were not a foreigner, or alien.  But if you were born outside England, you were an alien, and nothing short of a statute could give an alien all the rights of a natural born subject.

The critical issue for the English in the middle ages was loyalty or allegiance.  If a foreigner sued in England, he could be met by the plea: ‘You are an alien and your king is at war with our king.’  You will see here the premium put on personal allegiance – a vassal pledged loyalty to his liege lord.  The English had it on good authority (Matthew 6:24) that no man could serve two masters.  But once you got past that simple split, things got murky and downright distasteful.

Maitland teaches us that the starting point of the laws about aliens finds itself with the loss of Normandy – about 1259.  He also says this:

Of course very ancient law may regard every stranger as an enemy; but it will lay far more stress upon purity of blood than on place of birth; it will be tribal rather than territorial law…..But feudalism is opposed to tribalism and even to nationalism; one becomes a lord’s subject by doing homage to him, and this done, the nationality of one’s ancestors and the place of one’s birth are insignificant.  The law of feudal contract attempts for a while to swallow up all other law.  In England however a yet mightier force than feudalism came into play.  A foreigner at the head of an army recruited from many lands conquered England, became king of the English, endowed his followers with English lands.  For a long time after this, there could be little law against aliens, there could hardly be such a thing as English nationality.

(This is from Pollock and Maitland, The History of English Law before the time of Edward I, 1895. Pollock wrote only the first chapter. Included in the ‘Sorts and Conditions of Men’ are the ‘Unfree, Aliens, Jews, Outlaws, Convicted Felons, Excommunicates, Lepers, Lunatics and Idiots – and Women’.   Bracton said that excommunicates were ‘spiritual lepers’.  The concept of bankruptcy was still in the offing.  What these people all have in common is some disability, some lack of rights – some loss of status not to be entered into lightly or ill advisedly.)

There are three things to note from this excursus.

First, the English nation now is the product of a history that features a number of invasions or, at least, movements of peoples.   So is Australia.  Since some white people here get skittish about the word ‘invasion’ in this context, we might use the term ‘encroachment’ or ‘settlement’, begging the question of assent of those imposed upon – although that was not an issue at the arrival of the first Aborigines on this land.  (I have a recollection of Sir William Blackstone referring to the Norman Conquest as a ‘rude shock’ which, as understatements go, is pleasingly English.)  Indeed, unless you are standing smack dab in the middle of the Garden of Eden, or the Rift Valley, we are all descended from migrants.  And we are still building this country by welcoming migrants (with one appallingly mean and hypocritical exception).

As Maitland showed us, issues of identity may be very fluid when a nation is being formed by migration and settlement – or invasion.  The meanness of the kids in the cubby house may then become very unsettling.  And these issues of identity are made more fluid for us now by the significant numbers of people who now hold two passports or who claim to be dual nationals – something quite beyond the comprehension of our ancestors.

In short, and unsurprisingly, the denotation of a term like ‘alien’ varies in time and space.

Secondly, when we seek to find the underlying rationale of our laws about our treatment of foreigners or aliens, we may find ourselves on ground that is very wobbly – both intellectually and morally.  Maitland was writing two generations before Mein Kampf came out, but the terms tribalism, nationalism and purity of blood are now likely to die on our lips.  And that’s before you get to the four lettered word beginning with ‘r’.   So, entering into this territory is worse than watching little boys playing with matches – it’s like watching Superman fondling kryptonite.  (And I resist the temptation to refer to a minister fondling a piece of coal.)

Thirdly, and as we have seen, classifying a person as an alien diminishes that person’s legal standing and legal rights.  For example, I cannot be deported; if I were an alien, I could be, and the whole lynch-pin of my rights to the due process of the law would have taken a mighty hit.  No Australian wants to become subject to deportation by some stroke of a pen or some other fluke or error – or some law that is stated in doubtful terms or is of doubtful validity.  And this is not least the case when both major parties resemble kids in a cubby house showing extreme vigilance and a malignant jealousy about just who might come into and remain in the cubby house.  Otherwise decent people have been heard to descant loudly on their powers about who we will let in to our cubby house.

The other day, the High Court had to deal with issues about who may or may not be an ‘alien’ within the meaning of that term in our Constitution.  Before looking at their Honours’ decision, may I mention one other fact? What is clear, what is transcendentally clear, is that when on that fateful day the people of our first nation saw the sails of the first fleet round the heads of Sydney Cove, and beheld some of the foetid and depraved human cargo on board, they were looking at something more alien than anyone else on this planet had ever been exposed to.  And we may well imagine, as did Keats when writing of the men of Cortez staring at the Pacific, that they ‘Look’d at each other with a wild surmise’ – but with anything but silence.  These white people were at least as alien to these black people as flying saucers would be to us.  At Botany Bay, Lieutenant King ordered a marine to drop his pants to satisfy the Aborigines about what we may call the provenance of the white people, and he followed that by placing a white hanky on a native woman where Eve had put the fig leaf.   One informative account of the upcoming tragedy says this:

When the white people arrived to start their colony in Australia 1788, the nation that had just perfected the steam engine that would revolutionise the whole world, and confirm Britain’s imperial dominance, came into contact with people who did not know how to boil water.  The white people may as well have come from Mars.    

Well, we the white people are no longer the aliens.  Indeed, our arrogance was such that we probably never saw ourselves as aliens.  We now at least see ourselves as the native Australians, or, in the ghastly demotic of the outer, as dinkum Aussies.  And are we now to say that it is not we but they – the people of our first nations – who are the aliens in this land?  These are people whose span of time here makes ours look like a grain of sand at the base of Uluru, but we have never quite managed to suppress our feeling of superiority over them.  Can we so glibly strip them of their rights and standing here – and then just eject them from their land, a land for which they feel a spiritual bond that passes our understanding?

You may by now have divined the question that I will put and my answer to it.  Our relevant statutory law is the standard cross between a quagmire and a minefield, and I will spare you any reference to it.  As I follow what the High Court said in Love v Commonwealth, it held, by a majority, that a power of the Commonwealth to make a law about aliens does not extend to making a law about people who are obviously not aliens.  Aborigines are obviously not aliens.  Therefore that power does not extend to them.  Here is a more formal version of what I understand to be the relevant syllogism.

  1. The power of the Commonwealth under the Constitution to make laws dealing with ‘aliens’ does not extend to a power to make laws affecting a person who could not possibly answer the description of ‘alien’ in the ordinary understanding of that word.
  2. According to the Oxford English Dictionary, an ‘alien’ is ‘Belonging to another person place or family; esp.to a foreign nation or allegiance’ or ‘Foreign in nature, character or origin’ – in short, a foreigner. (The old judicial preference was for ‘belonging to another person or place.’)
  3. An Aborigine, as found by applying the criteria in the two Mabo cases, has a connection to the land and the waters of Australia, and a history and a status under our law (at least since the Mabo cases), that entail that that person is incapable of answering the description of an ‘alien’ in the ordinary sense of that word.  In short, an Aborigine is not a foreigner.

4 It follows that insofar as the Commonwealth statute has sought to characterise Aborigines as ‘aliens’, it is beyond power and invalid.

There is no argument about pars 1 and 2 and par 4 in my view follows ineluctably if par. 3 is established.    That is, the only room for argument that I see is in par. 3.  (There may be some ellipsis about the process of reading down, but I leave that to the purists.)  The point is clearly arguable on both sides – as shown by the judgments of seven distinguished lawyers – but neither result could in my view be stigmatized as juristically untenable.  What side you determine to come down on may depend not so much on your technique in working the law, as on your view of history.

As I see it, the crux of the case may be found in these passages of the judgment of Justice Bell.

The plaintiffs’ and Victoria’s argument depends upon the incongruity of the recognition by the common law of Australia of the unique connection between Aboriginal Australians and their traditional lands, with finding that an Aboriginal Australian can be described as an alien within the ordinary meaning of that word…..

The Commonwealth’s concern, that to hold that its legislative power does not extend to treating an Aboriginal Australian as an alien is to identify a race-based limitation on power, is overstated. It is not offensive, in the context of contemporary international understanding, to recognise the cultural and spiritual dimensions of the distinctive connection between indigenous peoples and their traditional lands, and in light of that recognition to hold that the exercise of the sovereign power of this nation does not extend to the exclusion of the indigenous inhabitants from the Australian community.

If I may be permitted to say so, I regret that the Commonwealth chose to refer to a ‘race-based limitation on power’.  That kind of label is seldom helpful and always dangerous.  It is the kind of branding that you might expect from a politician or a member of the press of a certain stripe.  In the context of this case, the suggestion looks to me to be little more than a rhetorical pout at what the more intellectually challenged parts of the press call ‘political correctness’,  or to evince a fetish about that slippery term ‘equality’.  And it might have the unfortunate result of being seen as what is elsewhere called throwing red meat to the base.  (As was predictable, the line has already been claimed by the usual suspects in think tanks and the press in a display of ignorance that is only matched by arrogance.  We might divert ourselves by asking why these people, who are so sadly inane, do not proffer their opinion on how we might perform brain surgery.)

To suggest that an Australian Aborigine is not a foreigner in Australia hardly seems novel, much less controversial.  It is hard, then, to see how the minority Justices could deal comfortably with the ‘incongruity’ identified by Justice Bell. (Another Justice apparently thought that the minority view was ‘bizarre’.)  If as a matter of our law an Aborigine does belong to this land now called Australia, as his ancestors have for more than 40,000 years, on what basis would the court that gave the nation the two decisions in Mabo lend its imprimatur to the suggestion that notwithstanding that status, an Aborigine may be deprived of his rights allowed to Australians by a finding that this can be done under an act of parliament that validly reduces him to the status of an alien?

Now, I may be quite wrong in all of what I say – if the terms ‘right’ and ‘wrong’ have any real use at this level.  And if it is said that I am being emotive, I happily plead guilty.  But I clocked off some time ago after thirty years of decision-making, and at a far, far lower altitude, indeed right at the bottom of the hierarchy. And as some of the judgments show, there is a fair bit to be emotive about in this case.  And of course, I have the luxury of being allowed to be candid about matters of policy.

And what I might also say, with respect, is that when it comes to subtlety, nuance, cleverness, or ingenuity – or any other epithet that usually signals to counsel that they are a goner – honours are in my view about equal between members of the majority and minority.  Most parts of these judgments will be way above the pay level of the average lawyer, and completely indecipherable to those parts of the press I referred to before.  I for my part failed to find the spot in the judgments, or the 748 footnotes, where the Justices engaged in their version of a juristic scrum on what I see as the issue in the case – that is, whether an Aborigine is a person who is capable of being described as an alien under our Constitution.

Indeed, as I struggled on, wondering if all this was harder than Kant’s Critique of Pure Reason, including his justly celebrated refutation of the ontological argument for the existence of God, I could not help falling back on that wonderful anecdote of Ludwig Wittgenstein: ‘During the last war, the trains carried a sign: ‘Is this journey really necessary?’’

(I may add that in addition to references to ‘spiritual’,  you will find references to the ‘metaphysical’ in the judgments.  May I say that this area is tricky enough without seeking to count how many angels can dance on the point of a needle?  Given the context, I wonder if I should reconsider this passage in a book called The English Difference?: ‘In the upshot, French and German thinkers concerned themselves in the highest level of rational speculation.  It was called metaphysics.  The English think metaphysics is worthless nonsense’.  For the record, The Oxford Dictionary of Philosophy begins its discussion of the term by quoting Bradley to the effect that ‘metaphysics is the finding of bad reasons for what we believe on instinct’.  It later cites the famous denunciation by David Hume that any text on metaphysics should be ‘committed to the flames, for it can contain nothing but sophistry and illusion.’  That is the attitude that caused me to make the remark above.)

In my view, we lawyers in this country have done enough damage to our aborigines up to now.  The doctrine of terra nullius was more than a gross insult to them – it was an affront to humanity that came from the darkest side of our imperialism.  And, yes, we did adopt imperialism from the mother country, as we tamely shared the white man’s burden and docilely trundled off to help the Empress of India put down the Boers in South Africa.

The aboriginal community would surely have seen a contrary ruling in this case – by, say,  five to two – as just another kick in the head in the rough lottery of Australian colonial justice in what some may have seen as a triumph of legal formalism over ordinary human decency.  If such a prospect is said to be extraneous to the proper exercise of the judicial function at this level, I would be both surprised and saddened.  And if someone told me that these issues were not even canvassed in the corridors of power, I would be incredulous.  My understanding of the law is informed by that expressed in these very familiar observations of Oliver Wendell Holmes.

The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have a good deal more to do than the syllogism in determining the rules by which men should be governed.  The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.  In order to know what it is, we must know what it has been, and what it tends to become….And as the law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism, it will be found that when ancient rules maintain themselves in the way that has been and will be shown in this book, new reasons more fitted to the time have been found for them, and that they gradually receive a new content, and at last a new form, from the grounds to which they have been transplanted.

We do not appoint our judges to stand guard over a mausoleum.

May I, then, conclude on a note of undiluted heresy?  Yes, I know that judges have to apply the law; but they also have to sleep at night.  One of the great jurists anywhere in the world during my lifetime gave voice to a sentiment that you will not often see expressed elsewhere, if at all.

Trial by jury is a unique institution, devised deliberately or accidentally – that is, its origin is accidental and its retention is deliberate – to enable justice to go beyond that point [the furthest point to which the law can be stretched ]…The fact that juries pay regard to considerations which the law requires them to ignore is generally accepted…It is, for example, generally accepted that a jury will tend to favour a poor man against a rich man: that must be because at the bottom of the communal sense of justice there is a feeling that rich man can afford to be less indifferent to the misfortunes of others than a poor man can be.

Now, of course I would never suggest that any of their Honours in their eyrie fastness at Canberra would ever behave like mere jurors – but what I would say is that any judge who repudiates what Lord Devlin says as anathema would not be the kind of dude that you want to have at your back during tense moments in an Indian tiger hunt.  Nor would you want to leave your fingers in the opening of the trap-door to the cubby house.

Top Shelf – 49 – Gibbon

MEMOIRS OF MY LIFE

Edward Gibbon (1814)

Folio Society, 1991; bound in green cloth, gold embossed, in stone slip case.

I had now attained the solid comforts of life, a convenient well-furnished house, a domestic table, half a dozen chosen servants, my own carriage, and all those decent luxuries whose value is more sensibly felt the longer they are enjoyed…To a lover of books, the shops and sales in London present irresistible temptations…..

Before looking at what Gibbon said, you need either to recall or know that Gibbon was one of the most graceful writers of prose that England has produced.  He was also one of the most devastating hit-men that the world has seen.  Apart from the grace of his style, and the rhythm of his writing, he had a wickedly nice, dry irony.  Here is one short example:  ‘See the tragic and scandalous fate of an Archdeacon of royal birth, who was slain by the Turks as he reposed in an orchard, playing at dice with a Syrian concubine’.  Count the criminal libels or mere denigrations in that off-the-cuff remark about one dead man of God.

Here is my all-time favourite put-down by this author.  It is of the Emperor Gallienus.

In every art that he attempted, his lively genius enabled him to succeed; and as his genius was destitute of judgment, he attempted every art except the important ones of war and government.  He was a master of several curious but useless sciences, a ready orator and elegant poet, a skilful gardener, an excellent cook, and most contemptible prince.  When the great emergencies of state required his presence and attention, he was engaged in conversation with the philosopher Plotinus, wasting his time in trifling or licentious pleasures, preparing his initiation to the Grecian mysteries or soliciting a place in the Areopagus of Athens.  His profuse magnificence insulted the general poverty; the solemn ridicule of his triumphs impressed a deeper sense of the public disgrace.  The repeated intelligence of invasions, defeats and rebellions, he received with a careless smile; and singling out, with affected contempt, some particular production of the lost province, he carelessly asked whether Rome must be ruined unless it was supplied with linen from Egypt, and Arras cloth from Gaul.

There you have the style of Edward Gibbon, and the story of the decline and fall of Rome.

Gibbon came from a family of squires in the Weald of Kent.  He was not well enough to stay at Winchester.  His mother died from breeding six other children who also died.  His father retired from Parliament to return to live among the landed gentry.  He was a man of whim.  One such whim was to enrol Gibbon as a Gentleman Commoner at Magdalen College, Oxford.  In this autobiography Gibbon rained some venom on his old university.

The Fellows or monks of my time were decent easy men who supinely enjoyed the gifts of the founder.  Their days were filled by a series of uniform employments:  the chapel and the hall, the coffee house and the common room, till they retired weary and well satisfied, to a long slumber.  From the toil of reading or thinking or writing they had absolved their conscience, and the first shoots of learning and ingenuity withered on the ground without yielding any fruit to the owners or the public…..Their conversations stagnated in a round of college business, personal stories and private scandal; their dull and deep potations excused the brisk intemperance of youth; and their constitutional toasts were not expressive of the most lively loyalty for the House of Hanover. 

Gibbon was too young to enjoy ‘the taverns and bagnios of Convent Garden’.  Instead, he fell under the spell of the Church of Rome.  This was too much for his father, who banished him to Lausanne, where he stayed for five years to have that nonsense knocked out of him by Monsieur Pavilliard, a learned Calvinist minister.

Gibbon dropped a girlfriend when Dad took exception.  ‘I sighed as a lover.  I obeyed as a son.’  Both limbs of the equation were probably untrue, and we might hope that Gibbon later regretted that tart dismissal of his one and only love.  (Mademoiselle Churchod went on to other things.  She married Monsieur Necker, who became the Minister of Finance in France, and played a large part in the French Revolution, and she gave him a daughter, Mme de Staël.)

Gibbon served for a time in the militia, and remained in it for years, and we might imagine Captain Gibbon, the small man with the rather large and ridiculous head, jogging at the head of his bucolic Grenadiers.  He sought to get away from it all with nights of ‘bumperizing that left him in the morning where he could ‘do nothing … but spew’.

When looking back on his life, Gibbon had no doubt that it was formed by the nearly five years he had spent at Lausanne.  ‘Such as I am in genius or learning or in manners, I owe my creation to Lausanne ….  I had ceased to be an Englishman’.  But he had previously recorded that his taste for the French theatre had only ‘perhaps abated my idolatry for the gigantic genius of Shakespeare, which is inculcated from our infancy as the first duty of an Englishman’.

Gibbon embarked on the Grand Tour.  His lack of worldliness – he had been too young to visit the whores when he was at Oxford – may have left him even more at sea with the French ladies than David Hume had been.  He saw Voltaire perform in a play.  Then he came at last to Rome while he was still casting about for a subject for a history, for it was to writing a history that he would devote his life.  His mixed upbringing enabled him to give a more balanced view of the religious divide than others – ‘the Catholic superstition, which is always the enemy of reason, is often the parent of taste’.  The lines with which Gibbon celebrated his visit to Rome are still celebrated by his admirers.

My temper is not very susceptible of enthusiasm, and the enthusiasm which I do not feel I have ever scorned to affect.  But at the distance of twenty-five years, I can neither forget nor express the strong emotions which agitated my mind as I first approached and entered the eternal City.  After a sleepless night I trod with a lofty step the ruins of the Forum; each memorable spot where Romulus stood, or Tully spoke, or Caesar fell, was at once present in my eye;…several days of intoxication were lost or enjoyed before I could descend to a cool and minute investigation…In my Journal the place and moment of conception are recorded;  the fifteenth of October 1764, in the close of evening, as I sat musing in the Church of the Zoccalanti of Franciscan friars, while they were singing Vespers in the Temple of Jupiter on the ruins of the Capitol.  But my original plan was circumscribed to the decay of the City, rather than the Empire; and, though my reading and reflections began to point towards the object, some years elapsed and several avocations intervened before I was seriously engaged in the execution of that laborious work.

The six volume work of The Decline and Fall of the Roman Empire was indeed to be his life’s work.  Gibbon greatly admired the History of Hume.  Gibbon’s first work had been written in French, but Hume persuaded him to write his History in English.  Hume thought, being an astute Scot, that the flowering of America would lead to English having the greater coverage.  Hume, and most of the rest of Britain, were generous in their praise of the History as it came out, volume by volume.  The Church was not.

Gibbon held court and would allow little chance of reply.  But this Georgian England had a vivacious conversational character.  He once unloaded one of his best foreign anecdotes and was waiting for his tribute of applause.  ‘When a deep-toned but clear voice was heard from the bottom of the table, very calmly and civilly impugning the correctness of the narrative, and the propriety of the doctrines of which it had been made the vehicle.’  This was no less than William Pitt the Younger (the youngest Prime Minister of England at the age of 24).  Gibbon was obliged to give ground and then excused himself and left the room.  He was apprehended looking for his hat, and when asked to return he said that the gentleman who had interrupted him was ‘extremely ingenious and agreeable, but I must acknowledge that his style of conversation is not exactly what I am accustomed to, so you must positively excuse me’.  Jane Austen could have written that.

He died on 16 January 1794 of an appalling illness that had long troubled him.  He was at peace and without fear, but it is a very fair guess that no other writer of history has been so read, so admired, and so loved.  It is certainly the case that this rather absurd Englishman still talks to us and enlightens us after we have gone more than two hundred years down the road.

The great historian looked for patterns in the past.  He was not to devote his life’s work to describing outlines of spent tea leaves.  ‘History to a philosopher’ he said, ‘is what gambling was to the Marquis de Dangeau:  he saw a system, relations, consequences, where others saw only the caprice of fortune’.  Gibbon was describing the decline and fall of an empire.  He saw that decline occurred with the rise of religion; he asked why ancient civilisation failed and if it could happen again.

Perhaps it was because Georgian English gentlemen suspected that their England suffered from similar lesions on its society that they were content to allow Athens and Rome to be described as civilised.  But it is a little curious that educated Europeans should have sought to find how this mighty and civilised empire was brought low – was felled in truth – by a scrawny ragamuffin hasid whose teaching of the Sermon on the Mount underwrote all of what the English would come to call civilised about their empire.  And how could Rome have sought to hold an empire under arms if it subscribed to the view that it is the meek who inherit the earth?

It is not surprising that Gibbon followed what might be called the party line in describing Rome as civilised, but we might notice that he began his first published work, the Essai, with the following words of eternal verity: L’histoire des empires est celle de la misere des hommes. ‘The history of empires is the history of the misery of mankind.’

Sadly, space allows only a couple of quotations on the Crusades:

… the name and nature of a ‘holy war’ demands a more rigorous scrutiny;  nor can we hastily believe that the servants of the Prince of Peace would ensheath the sword of destruction unless the motive were pure, the quarrel legitimate, and the necessity inevitable. 

Gibbon attacks indulgences with savagery.  He then goes on to describe the beginning of the first Crusade.

Some counts and gentlemen, at the head of three thousand horse, attended the motions of the multitude to partake in the spoil, but their genuine leaders (may we credit such folly?) were a goose and a goat, who were carried in the front, and to whom these worthy Christians ascribed an infusion of the divine spirit.  Of these, and of other bands of enthusiasts, the first and most easy warfare was against the Jews, the murderers of the Son of God.  In the trading cities of the Moselle and the Rhine, their colonies were numerous and rich, and they enjoyed under the protection of the Emperor and the Bishops the free exercise of their religion.  At Verdun, Trèves, Metz, Spires, Worms many thousands of that unhappy people were pillaged and massacred, nor had they felt a more bloody stroke since the persecution of Hadrian ….  The more obstinate Jews exposed their fanaticism to the fanaticism of the Christians, barricadoed their houses, and precipitating themselves, their families and their wealth into the rivers of the flames, disappointed the malice, or at least the avarice, of their implacable foes.

Gibbon next savages the institution of knighthood and then goes on to describe the taking of the Holy City, Jerusalem.

A bloody sacrifice was offered by his mistaken votaries [Tancred’s] to the God of the Christians:  resistance might provoke, but neither age nor sex could mollify their implacable rage: they indulged themselves three days in a promiscuous massacre; and the infection of the dead bodies produced an epidemical disease.  After seventy thousand Moslems had been put to the sword, and the harmless Jews had been burnt in their synagogue, they could still reserve a multitude of captives whom interest or lassitude persuaded them to spare.  ….  The Holy Sepulchre was now free; and the bloody victors prepared to accomplish their vow.  Bare-headed and bare foot, with contrite hearts and in a humble posture, they ascended the hill of Calvary, amidst the loud anthems of the clergy; kissed the stone which had covered the Saviour of the world;  and bedewed with tears of joy and penitence the monument of their redemption.  This union of the fiercest and most tender passions has been variously considered by two philosophers: by the one, as easy and natural; by the other, as absurd and critical.

The first philosopher referred to is David Hume; the second was Voltaire.

Here is Gibbon on Israelite conquests.

When the posterity of Abraham had multiplied like the sands of the sea, the Deity, from whose mouth they received a system of laws and ceremonies, declared himself the proper and as it were the national God of Israel; and with the most jealous care separated his most favourite people from the rest of mankind.  The conquest of the land of Canaan with so many wonderful and so many bloody circumstances, that the victorious Jews were left in a state of irreconcilable hostility with all their neighbours.  They had been commanded to extirpate some of the most idolatrous tribes, and the execution of the Divine will had seldom been retarded by the weakness of humanity.

Here is Gibbon on the absolutism of the followers of Jesus of Nazareth.

But the primitive church, whose faith was of a much firmer consistence, delivered over, without hesitation, to eternal torture, the far greater part of the human species. A charitable hope might perhaps be indulged in favour of Socrates, or some other sages of antiquity, who had consulted the light of reason before that of the Gospel had arisen.  But it was unanimously affirmed that those who, since the birth or the death of Christ, had obstinately persisted in the worship of the daemons, neither deserved nor could expect a pardon from the irritated justice of the Deity.  These rigid sentiments, which had been unknown to the ancient world, appear to have infused a spirit of bitterness into a system of love and harmony.

Finally, this is Gibbon on celibacy.

Since desire was imputed as a crime, and marriage was tolerated as a defect, it was consistent with the same principles to consider a state of celibacy as the nearest approach to Divine perfection. It was with the utmost difficulty that ancient Rome could support the institution of six vestals [virgins] but the primitive church was filled with a great number of persons of either sex who had devoted themselves to the profession of perpetual chastity.

In the footnote, Gibbon records of the six Roman maids: ‘nor could the dread of the most horrible death always restrain their incontinence.’

How did our brothers and sisters of Asia fare? Gibbon said that for all his powers of eloquence, Mohammed was an illiterate barbarian, although he says that the ‘base and plebeian origin of Mohammed is an unskilful calumny of the Christians.’ (How did they class the origin of Jesus of Nazareth?)  Gibbon does of course praise Mohammed for dispensing with priests, sacrifices, and monks, but he rejects the doctrine of damnation by which ‘the greater part of mankind has been condemned for their opinions.’ Gibbon was, like most people, fascinated by sex.  He had this comment on Paradise.

Seventy-two Houris, or black-eyed girls, of resplendent beauty, blooming youth, virgin purity, and exquisite sensibility, will be created for the use of the meanest believer; a moment of pleasure will be prolonged to a thousand years, and his faculties will be increased a hundredfold to render him worthy of the felicity ….This image of carnal paradise has provoked the indignation, perhaps the envy, of the monks…

But this Paradise was assured to those who died for the faith since the Prophet had said ‘The sword is the key of heaven and of hell: a drop of blood shed in the cause of God, a night spent in arms, is of more avail than two months of fasting or prayer…’ .

It is very hard now to imagine history in any language being written with such pitch and such intensity.  But he may have unsheathed a sword the consequences of which he never intended.

In Gibbon’s view, Greek philosophy had infected the teaching of those following Jesus of Nazareth.  It was notorious that many of the divisions of the early church were fed on thinking that came to its members from the Platonist school.  Gibbon thought that Platonism did not mix well with Christianity.

But theology, which it was incumbent to believe, which it was impious to doubt, and which it might be dangerous, even fatal, to mistake, became the familiar topic of private mediation and popular discourse.  The cold indifference of philosophy was inflamed by the fervent spirit of devotion.

It may have been like global warming disputants trying their hand with the theory of relativity or string theory.

The familiar study of the Platonic system, a vain and argumentative disposition, a copious and flexible idiom, supplied the clergy and the people of the east with an inexhaustible flow of words and distinctions; and, in the midst of their fierce contentions, they easily forgot the doubt which is recommended by philosophy, and the submission which is enjoined by religion.

It has to be said that these observations ring many bells, and not just in the context of the Christian church.

Baroque sentences flowed out Gibbon just like baroque music flowed out of Mozart.  His canvass blazes like that of El Greco.  He had a sense of grace and rhythm that would have appealed to the instincts of Errol Garner and which had a lasting effect on one of his greatest followers.

For my own part, looking out upon the future, I do not view the process with any misgivings.  I could not stop it if I wished; no one can stop it.  Like the Mississippi, it just keeps rolling along.  Let it roll.  Let it roll on full flood, inexorable, irresistible, benignant, to broader lands and better days.

May I conclude on a whim of my own fancy?  For me, Gibbon was and is the greatest writer in prose of them all.

 

Here and there – Evading the question

 

People in public life are trained to evade answering questions.  They practise it.  It becomes second nature.  You might think that people in positions of trust should be obliged to answer questions about their discharge of that trust candidly and in good faith.  The law and I would agree with you.  But that is not what happens.  What we get are evasion, equivocation and half-truths.  The idea is never to give a straight answer.  Even if you are just asked to say what time it is.

Here are some of the most popular techniques.

  1. Restate or reframe the question so that you can answer it favourably to yourself. Mediators are trained to do this in a good way to try to take some heat out of the dispute.  It is notorious that opinion polls can be slanted by the way the question is framed.  ‘Do you think that it is in the public interest for the media to have more protection – more freedom of speech, if you like – in reporting on political issues?’  That is very different to: ‘Should we give Rupert Murdoch carte blanche to walk all over us in political cat fights?’  Instead of saying what your party has done, say what its policy is.  This is very common – offering motherhood in place of fact.  Alternatively, instead of talking about policy, say what your party has in fact done.  This simple if blatant evasion is standard.  For question A you have response X; for question B you have response Y; and so on.
  2. Challenge a premise of the question. ‘When did you stop beating your wife?’ is objectionable as it assumes that you do beat your wife.  What about: ‘Why do you call this informant a whistle-blower?  He is just a common garden snitch and liar.’  ‘I object to your labelling this man as a conservative.  He is a closet lefty…anarchist ….alarmist’ …..and so on.
  3. If you get a chance to say that the question is ambiguous, think about saying so. (Some lawyers think that if their opponent looks clumsy, it may be best to leave them to try to dog paddle to shore on their own.)
  4. Brand the question as hypothetical and say that you don’t answer hypothetical questions. This may sometimes be true.
  5. Or invoke some other trite label. ‘I don’t engage in the Canberra bubble’, ‘water cooler gossip’, ‘locker room banter’, ‘hearsay’, ‘bloviations of the elites’, ‘virtue signalling’, ‘politically motivated’, ‘fake news’ or ‘deep state’……  Or, I speak to ‘quiet Australians’ (who never answer back).  You can get the full range of this nonsense every Saturday in The Weekend Australian.  Seasoned operatives take the view that the more meaningless and inflammatory the label is, the better off is the response.  It may depend on the acuity of the audience.
  6. If asked about the past say that you are focussed on the future. One Australian Minister, whose sense is matched by their deportment – the avoidance of gender is deliberate – always ‘looks to move on.’  (Walking backwards for Christmas does not enjoy a good pedigree.)  Then, when asked about the future, you decline to speculate on the suppositious or academic.  The golden template is in these immortal lines from the greatest movie ever made.

YVONNE: Where were you last night?

RICK: That’s so long ago, I don’t remember.

YVONNE: Will I see you tonight?

RICK: I never make plans that far ahead.

But, alas, that kind of spark is missing from those who bring coals into our parliament.  (On a good day, they remind me of a bus driver from Box Hill in the Fifties.)

  1. If the matter is sensitive – say gun control or climate change – say that current or recent events make it in bade taste to allow ‘political point scoring’ to cloud delicate and personal issues. You can use the word ‘opportunistic’ – and hope that you are not asked to say what you mean.  In this country at least, this is a dead horse – except for followers of Sky After Dark or The Australian.
  2. A primary object is to keep onside that part of the audience that fears doubt and is made insecure by a want of finality. (This is sometimes called ‘the base’ – a useful double entendre.)  That sadly is a large part of the audience (although not as large as in the U S).  For that purpose, keep serving up the same old platitudes.  The simpler, the better.  But be careful about mixing escalation and increase in volume with repetition.  (The leading modern exponent of that technique is currently – in November, 2019 – heading for a gutser.)
  3. Be like a good poker player. Just bluff hard and big and look them dead in the eye and dare them to call you out.  After all, this is all about saving   You could model this aspect on President Xi.  (Who would play poker with that sphinx?)
  4. Blind them with science or big words. This is mandatory in any discussion of science or economics.  (The two are very different things.)  Remember the immortal advice cited by Professor Frankfurt in On Bullshit – ‘Never tell a lie when you can bullshit your way through.’  It’s like throwing sand in your protagonist’s eyes.  But this response, too, requires care.  Your supporters take offence if they think you are deliberately aiming to go above their heads (which it is alarmingly easy to do).
  5. Bury them with detail. ‘Yes, in order to deal with that issue in the manner it deserves, I need to take you to some of the figures……’  This is called a snow job.  It is very common in legal and commercial negotiations.  You may look aggrieved if you are called on to get to the point.  ‘This is not a matter to be entered into lightly or ill-advisedly.’  You could then give the Andrew Bolt look of dolour – with appropriate hand gestures.
  6. Alternatively, you may say that the question calls for an opinion that you are not qualified to give. You must apply this technique with extreme care –especially if you devote most of your time to doing just that (which is the case for many lawyers and most politicians).
  7. A similar caution goes for slowing down the process by taking an inordinate time to answer the question – or, more properly, to respond to the question. This technique can be useful in dealing with tyro journalists or barristers in cross-examination, but it may not fit your schtick – this is no place for modesty – and it may not appeal to that ghastly mirage called your ‘base.’  They are happy with front and bluff, and not impressed by a devotion to care; or, for that matter, by fidelity of any colour.
  8. Depending on the forum, you may choose to be pleasant – you should always at least look polite and courteous and under control. If you are prepared to resort to flattery, leave aside the trowel.  And ‘That’s a very good question’ is badly overdone.  And don’t ramble.  You might convict yourself out of your own mouth.  And avoid traps like ‘sincerely’ or ‘honestly.’  (What is your condition when you do not expressly adopt that position?)
  9. An alternative is to belittle the questioner. This too requires care and skill.  Many people don’t like bullies.  (That proposition is just one of those that is refuted by the current rise of two worst leaders in the West.)  Cajolery may be better.  (Blackmail of course should not be undertaken in public, and then only under total and detachable and renounceable cover in private – witness aid to the Ukraine.)
  10. Attack the questioner head on. ‘Well, that’s just the kind of bias I would expect from the ABC.’  (Compare: ‘Well, Mr Hawke, what does it feel like to have blood on your hands at last?’)
  11. The Latin tag for playing the man is ad hominem ( ‘to the man’). It is repellently overused by diverting attention to the other side.  ‘Well, we are not perfect.  We are realists.  But just have a look at the mess that our opponents left for us – and for you, the people.’  This is intellectual trash, but you get truckloads of it every day, and the people out of doors don’t hear the sighs or groans.
  12. If in doubt, start a fight. This has been the resort of lawyers and business people from time out of mind.  It comes ever so naturally to those who appeal to the gutter, because they know that the gutter enjoys a good fight.
  13. The alternative to a fight is just to walk out. That may be easier to live with than an admission of guilt – and the whole point of the exercise is to avoid precisely that.

They are some of the more common techniques.  The questioner must recall one of the major rules of cross-examination.  Make sure that the witness answers the question.  If you get a snow job or some other windy evasion, bring them back to the point.  ‘Well, are you quite finished?  Are you sure?  Did you understand the question?  Well then, could you now please answer it?’  It’s about even money that they will say that they forget what the question was – and sometimes that may be the case.

Professor Frankfurt cites two definitions of ‘bull’: ‘Talk which is not to the purpose; ‘hot air’; ‘slang term for a combination of bluff, bravado, ‘hot air’ and what we used to call in the Army ‘kidding the troops’’.  He spoke of people ‘unconstrained by a concern with truth.’

It is just this lack of connection to a concern with truth – this indifference to how things really are – that I regard as the essence of bullshit…..For the essence of bullshit is not that it is false but that it is phony….The bullshitter is faking things.  But this does not mean that he necessarily gets them wrong….Our natures are, indeed, elusively insubstantial – notoriously less stable and less inherent than the natures of other things.  And insofar as this is the case, sincerity itself is bullshit.

That book was published in 2005.  Since then, bull has become an art form and reached its apotheosis in Messrs Trump and Johnson.

Now, you may well think that whatever else we have been talking about, it is not honesty.  I agree with you.  But that is where we are now.

Passing Bull 227 – What’s wrong with activists?

 

Many people of the Murdoch press, especially Sky News after Dark, are fond of sneering at activists.  In truth, they are fond of leering, jeering and sneering at large.  They do more than sneer at young Greta – they snarl, roll their eyes, and froth at the mouth.  It has not yet occurred to them that their behaviour is of itself her vindication.  A friend and colleague of mine, Julian Burnside, is routinely shellacked for being an activist on behalf of refugees.  (Although, there, jealousy of one sort or another is well to the fore.)  But some people seem to think that there is something inherently objectionable about activism – especially about the environment – or the climate.  Why is this so?

An activist is a person who actively seeks to change the world for the better.  Outstanding examples are Ghandi, Bonhoeffer and Mandela – all as near to sainthood as a secular world might conceive.  All through the 1930’s, Winston Churchill was the supreme activist in warning the world of the rise of Hitler.  His activism then failed, with consequences that could well have been terminal.  Keynes was an activist in looking after institutions that had taught him.  After the Second World War, two of the greatest minds of that century – Bertrand Russell and Einstein – were activists about disarmament.  Not many people sneer at Ghandi, Bonhoeffer, Mandela, Churchill, Keynes, Russell or Einstein.  Sneering at any of them would be like a gnat straining at a camel (if I may invoke Shelley).  And that’s before you get to religious activists.  Or people in charities, or sports, or clubs, or churches, or unions – or, for that matter, political parties.

If you believe, as I do, that no state that allows slavery can be called civilised, then civilisation did not arrive until the early nineteenth century.  It came with one of the most remarkable exercises in self-denial that the world has ever seen – or is ever likely to see again.  It came when the English abolished slavery.  And who was it who actually drove this almost miraculous confiscation of property and denial of wealth?  You got it – activists.  They were led by Evangelical Anglicans, but they were driven by the Society of Friends – the Quakers.  God, therefore, was in this up to His neck, and the achievement of these people of faith is one unquestionable gift of that faith to the world.

The Quakers had been pitifully persecuted on each side of the Atlantic.  As happens to victims of persecution, they were very sensitive to the persecution of others.  They set out to mould public opinion.  They door-knocked and they petitioned and they signed people up in the first great PR campaign the world has seen.  They showed a determination that some would now deride as fanatical.  And they succeeded by winning over the establishment and the public and the parliament.  They had shifted from quietism to activism.

In his book Moral Capital, Christopher Brown describes the foundations of British abolitionism.  He said this of the Quakers.

In addition to adhering to vows to do no harm, Quakers would have to commit themselves to the more difficult mission of stopping harms performed by others.  For a program of this kind, Friends in England had few precedents.  Never before in the eighteenth century had they tried as a group to shape national legislation through a public crusade.  Indeed, taking a stand on moral questions broke with their established habit of leaving sinful neighbours to their devices.  And standing forth publicly deviated from their scruples against political activism.

Here then was what Edward Gibbon may have called a ‘singular prodigy.’  And their success came in the face of one great unwritten law of the politics of the Western world.  When there is money on the table, this is an issue for mature adults, and there is no need to complicate matters with the Sermon on the Mount.  There are, after all, some things in there that are simply impossible in dealings between nations.  (Good grief, Karl Marx himself may have said that the meek shall inherit the earth.)  The Quakers had shouted a loud affirmative to the questions: Can you be a serious Christian and retain public standing?  Can a serious Christian act in the world without compromising faith?

Mr Brown refers to this issue as Lord Dartmouth’s predicament.  What do you do when your conscience does not permit you to live as others do?  When Mr Romney dissented on the impeachment, he said, as Hamlet may have said, that not to do so would ‘expose my character to history’s rebuke and the censure of my own conscience’.  The sorry failure of other Republican senators to think of history or their conscience looks to have been driven by cowardice born out of pettiness.  This was a failure that will scar America for a very long time.

The Quakers were committed to the proposition that all men are equal.  By including the Negro in the term ‘all men’, the Quakers repudiated the great lie of Jefferson and the other Founders of the United States – so many of them being the owners of slaves.

And of course they had God.  They found it indefensible to preach the Golden Rule and yet withhold security and justice from those most in need.  Can anyone seriously maintain that the founder of their faith would have acted differently?  And the Quakers excoriated slave owners ‘toiling years after years, enriching themselves, and thus getting fuel for our children’s vanity and corruption.’  Well, they were prophets too.

The Friends thought of themselves as a ‘spiritual remnant…among the unconvinced’ and ‘as bearers of truths and ideals for which this world was not ready.’  One Friend saw his church ‘as encamped in the wide extended plain of the world, under the direction and command of the great Captain and Leader and surrounded as it were in their tents with the impregnable walls of their discipline.’  Let dogmatic atheists sneer at that.

Mr Brown says:

The sum of Quaker efforts between 1783 and 1787, from the canvassing of the elite to the dissemination of antislavery literature, profoundly affected the political and cultural landscape.

So, those who deride activism in and of itself combine two errors that infect public life – they fall back on a label to express their intolerance of people who think differently to them.  And as a perceptive correspondent to The Age remarked, those who celebrate quietism, as our Prime Minister apparently does, may wish to reflect on the contribution that such people made to the horror of Auschwitz.  It is after all far easier just to look the other way.

If you wanted to look for activists who don’t do much for the common good, look for those commentators who actively seek the demolition of the ABC or to prevent the election of any government tied to Labor.  The hypocrisy, as ever, is breathtaking.

And except for the repudiation of quietism by the Quakers, we might still be buying and selling human souls as chattels, and claiming to do so under the aegis of Almighty God after the manner of our various ancestors.

Bloopers

On Twitter, Trump lashed out at the magazine, labelling it a ‘far left’ publication that ‘has been doing poorly.’ Graham’s eldest son, Franklin, who became the head of the Billy Graham Evangelistic Association after his father’s death, in 2018, claimed that his father would have been ‘very disappointed’ by the piece and had, in fact, voted for Trump in the 2016 election. ‘It’s obvious that Christianity Today has moved to the left and is representing the elitist liberal wing of evangelicalism,’ Franklin wrote … On Sunday, Timothy Dalrymple, Christianity Today’s president and chief executive officer, issued a statement defending the editorial and reaffirming one of Galli’s assertions: that ‘the alliance of American evangelicalism with this presidency has wrought enormous damage to Christian witness’—the heart of believers’ evangelistic mission.

The New Yorker, 22 December, 2019

All those labels – and all for nothing.   Sadly, American ‘evangelicals’ are trashing that term by claiming that they can live with Trump and not compromise their faith.  Only God knows what damage they do to that faith as a result.

Here and there -Contracts and status of medieval vassals and kings

 

I

On reading again Maine on Ancient Law, and Pollock and Maitland The History of English Law before the time of Edward I, I was once more made curious about the reluctance of English lawyers, historians and philosophers to acknowledge the importance of contract in the development of the common law – including in that term the constitution of England.

It was the insight of Sir Henry Maine that ‘the movement of the progressive societies has hitherto been a movement from Status to Contract.’  Maine made that observation before ideologues of a certain bent, mostly those in the service of a certain press baron, invested the term ‘progressive’ with a load of rather smelly baggage, but it is a comfort to most of us to know that rather than just inherit some standing in the world (status), we can have our say in it by dealing with others for that purpose (contract).  Indeed, that great shift signifies the beginning of what we call the modern era after the waning of the Middle Ages.  And it coincides with another shift – from the supernatural to science, and from the jurisdiction of God and his church to that of the people on this earth.

II

The very long epoch called the Middle Ages was characterised by what we now call feudalism.  I sought to describe the compact at the heart of feudalism as follows.

A peasant farmer would go to the man in charge of the manor or village and offer to provide services, including what we would now call military service, in return for the protection afforded by the manor or village.  The ceremony was simple.  One man put his hands between the hands of the other and said ‘I am your man’.  This was called doing homage. 

In a world where God was everywhere, and where a transaction may not be thought to be worth much if God was not involved or invoked, there was often a further ceremony or rite.  The man paying homage, whom we call the vassal, might swear on the Gospel to be faithful to his lord or master.  This was called fealty, and it was given at a time when fear of eternal damnation was very real.  The compact lasted for the joint lives of the two people involved. ……

So, what we have is an exchange of promises – you look after me and I will work or fight for you – that were intended to be binding and to be acted upon for life.  That is what we call a contract. 

Maitland said that ‘Glanvill and Bracton seem to lower their voices to a religious whisper when they speak of homage’ but he went on to say:

The contract was far from being a one-sided one.  The lord was bound to defend and warrant his gift….But the primary obligation [was] the duty of defending his tenant in possession ‘against all men who can live and die.’  If the tenant was attacked by process of law, he vouched his lord, he called upon his lord to defend the action and the lord if he did his duty defended it.  Now here we see a great force at work.  Do what we may to make all men equal before the law, a rich man has and must always have great advantages in litigation…..

The contract at the bottom of vassalage was said by Professor Milsom to be ‘a relationship of reciprocal obligations…Now he [the lord] buys services and pays directly in land…He buys a man.’  You may wish to take care about repeating that last statement in some quarters.

III

We might wonder how a poor tenant might seek to enforce such a right as matter of law.  The lord could enforce his rights under the compact by seizing and converting goods of the tenant without any intervention by the courts.  This was the remedy called ‘distress.’  It was a burning issue because it was so open to oppression and abuse.  Simon de Montfort called it ‘the beginning of all wars.’  The Year Books show a judge in 1310 saying that a ‘wicked ribald of a bailiff…may cause a poor man by coercion to do a suit.’

The wrongs inflicted under the banner of distress had led to the passing of the statute of Marlborough in 1267.  This law severely limited the remedy of distress, to the extent that Maitland said that it ‘in many ways marks the end of feudalism.’  And as if to underline Maitland’s point about the advantages of the rich man in litigation, the statute began with an alarming proclamation of equality 500 years before the Bastille fell.  Section 1 is still part of the law of England:

Whereas at the time of a Commotion late stirred up within this Realm, and also sithence, many great Men, and divers other, refusing to be justified  by the King and his Court, like as they ought and were wont in Time of the King’s noble Progenitors, and also in his Time; but took great Revenges and Distresses of their Neighbours…..It is Provided, agreed, and granted, that all Persons, as well of high as of low Estate, shall receive Justice in the King’s Court; and none from henceforth shall take any such Revenge or Distress of his own Authority, without Award of  Court, though he have Damage or Injury, whereby he would have amends of his Neighbour either higher or lower.  [Emphasis added.]

Notice that this statute when it becomes operative says that it ‘is Provided, agreed, and granted that …’  What could be a more natural way of saying of a resolution of a dispute than that ‘the parties agree…..’?

IV

Now, when we speak of ‘contract’ in this context, we use the term as it is used now in our law.  The common law was nowhere near that point in the thirteenth century, much less anywhere near the doctrine of what we call ‘consideration.’  The first text of English law, published in the 12th century, said simply ‘It is not the custom of the Lord King to protect private agreements.’

The notion of contract had long been settled in Roman law, but not in ours.  The jury was yet to emerge from its cocoon.  Remedies for breach of covenant and recovery of debt or taking of accounts were being developed in the ad hoc manner of the common law, but we are not precluded from applying our concepts to medieval transactions and instruments.  The common law was then locked into issues of form – the remedy revealed the right – but the disputes over the remedy of distress show that the basic feudal compact was enforceable as a matter of law.

It may seem odd that we use our current concepts to explain what happened in a different era.  We would not feel any such oddity if we were talking of changes in learning about science.  After referring to the dictum of Maine with which we started, Maitland said that Maine ‘was quick to add that feudal society was governed by the law of contract’.  He went on, in his hallmark spritely style.

There is no paradox here.  In the really feudal centuries men could do by a contract, by the formal contract of vassalage or commendation, many things that could not be done nowadays…Those were the golden days of ‘free’ if ‘formal’ contract.  The idea that men can fix their rights and duties by agreement is in its early days an unruly, anarchical idea.  If there is to be any law at all, contract must be taught to know its place.

V

Whole libraries have been written about the abstract idea of the ‘social contract’, but the English for some reason are very coy about seeing that the two principal instruments of their constitution – Magna Carta, 1215 and the Bill of Rights, 1689 – represent actual contracts between the Crown and its subjects.

Each of them is what we lawyers would now call a service agreement or employment contract.  There is however this difference.  Not many CEOs would enter into an agreement for an indefinite time with the board of their company on the basis that they were locked in indefinitely unless both agreed otherwise.  This job was for life.

Each of those two contractual instruments has been set out and adopted in a statute of the parliament.  The parties to each such agreement intended it to be legally binding.  Each contained mutual promises.  Each is indisputably a part of the constitution of England.  Each represented an agreement between the Crown and the people that was intended to resolve civil strife or uncertainty, and to seek to avoid similar strife in the future by defining the rights and duties of the Crown and the people by a binding compact.  Each is in substance an agreement between the Crown and the people.  Each is a form of social compact that the parties – the Crown and the people – have adopted as the law.  Why should we not see each instrument as a legally binding contract?

How would the people be able to enforce these compacts if the Crown reneged?  If I borrow money from a bank to buy a house, the bank takes a mortgage and can sell me up if I default.  If a company borrows the money, the bank can send in receivers and managers if the company defaults.  In either case, the bank takes possession of the mortgaged property.  Going to court is not the only, or the preferred, way to enforce a contract.  It is better for a party to have taken and to be able to enforce a security.  In each of these settlements, the Crown gave security to the people to enable the settlement to be enforced against the Crown.

VI

In Magna Carta the barons opted for the model of the receiver and manager.  Article 61 refers expressly to security (securitas) and it is a security that not even the most over-mighty and overbearing corporation would now dare to seek.  It provides that if the king defaults, the barons can give him a notice to remedy that default.  If the king does not comply, a committee of twenty-five barons ‘together with the community of the entire country, shall distress and injure us in all ways possible – namely, by capturing our castles lands and possessions and in all ways that they can – until they secure redress according to their own decision, saving our person and the person of our queen, and the persons of our children.’(Emphasis added.)

Do you see the reference to the remedy of distress?  It is what we would call distress on steroids that no bank in the western world would dare go near (and which gave the pope some ammunition to annul it).  This led Theodore Plucknett in his Ford Lectures to say that ‘this chapter of the great charter is carefully drawn in the form of a covenant for distress.’

The momentary appearance of distress in the higher altitudes of constitutional law will serve to remind us of its great effectiveness, and it was thought to afford a substantial security for the king’s undertakings in the charter.  It will also remind us that distress was one of the commonest casualties of medieval life which might befall any man, high or low, at any moment.

It also reminds us that the barons had their king taut over the proverbial barrel, and reduced by this contract to the status of the most vulnerable tenant or vassal.  (King John had form with the latter as a vassal of Rome.  History also credits him with at least five bastards and taking a bath every three weeks.)

Perhaps the significance of this grand medieval compact is that the king was driven to agree to it – and his successors would be driven to adopt and adhere to it.  We might be reminded of Mafia dons coming together to ‘make the peace’ – or of that glorious re-enactment of the rite and ceremony of homage and fealty in the grand first scene of the movie of The Godfather. 

But it would now be hard for a king to say that he reigned by the grace of God, when the truth was that he was only still there because he had done a deal with his principal minders, the barons.  This looks like a shift from status to contract at the highest level on this earth.  And it was not just lawyers who would be able to say that the king was under the law, because the law made the king.

VII

In the Bill of Rights, the Commons elected to go for another kind of enforcement.  It provided that ‘keeping a standing army within the kingdom in time of peace, unless it be with the consent of parliament, is against the law’ and then, immediately, ‘the subjects which are Protestants may have arms for their defence suitable to their condition and as allowed by law.’  In the idiom of the shorter form of cricket, here is the equation – we can have arms; Your Majesty cannot (except on our terms); if we have a falling out, we will be armed, and you will not; if there is a fight, can you guess who will win?

The government may have been centred on London, but it was carried out, if necessary by force, in the shires and in the counties.  Sir Jack Plumb said:  ‘The Bill of Rights had its sanctions clauses – there was to be no standing army and Protestant gentlemen were to be allowed arms; the right of rebellion is implicit.’   The phrase ‘right of rebellion’ might make constitutional lawyers blush*, but Sir Jack may have had in mind our current law of the right of the innocent party to accept the conduct of a guilty party as the repudiation of a contract, so bringing it to an end.  Plumb had also said that: ‘…the power of the 17th century gentry was sanctioned by violence’ and that ‘…by 1688, violence in politics was an Englishman’s birth-right’.

The English of course, being sensible, just let all this odd stuff about the right to bear arms sink into history.  Sadly, it still raises hell in the largest of its former colonies.

VIII

What we now call the right of a party to treat a contract as at an end if the other party repudiates that contact is in truth the notion that underlay the Glorious Revolution and the American Revolution.  Jefferson adapted the English template in their Bill of Rights in his Declaration of Independence.  That the contracts in Magna Carta and the Bill of Rights were later embodied in statutes does not mean that the contracts were at an end.  They were simply translated into the highest form of binding legal obligation.

We need not be surprised to see contracts being entered into on high – by the highest on this earth.  We do, after all, speak of a people whose religious faith derives from a book that holds that God himself enters into covenants with peoples that are, for people of that faith, binding beyond any power known to this world.

The word ‘covenant’ occurs at least 23 times in Genesis and 13 times in Exodus, generally referring to the covenant between God and his chosen people.  The Latin word is either foedus (normally ‘compact’ or ‘treaty’) or pactus (normally ‘contract’ or ‘agreement’).  If a people could covenant with God, they could covenant with their king; indeed, for people of that faith, nothing could be more natural or ordained than a covenant between a people and their king.  And the English at relevant times were wont to see themselves as the chosen people – not least those of the elect who took ship on the Mayflower.

IX

At about the time of Magna Carta, the Hungarians agreed to what was called The Golden Bull and the Spaniards agreed to a Privilegio de la Union, but neither achieved the standing of Magna Carta or anything like it.  There might have been something in the air.  The famous Sachsenspiegel had these words: ‘A man may resist his king and judge when he acts contrary to law and may even help to make war on him….Thereby, he does not violate the duty of fealty.’

This was the ‘right of resistance’ which, Marc Bloch said, ‘resounded in the thirteenth and fourteenth centuries from one end of the Western world to the other, in a multitude of texts.’  What we see is mankind groping its way to a realisation that people may have legal rights arising out of an agreement between a man and his lord or a people and their king.

Marc Bloch concluded his great work Feudal Society with these words:

Nor was it an accident that in Japan, where the vassal’s submission was much more unilateral and where, moreover, the divine power of the Emperor remained outside the structure of vassal engagements, nothing of the kind emerged from a regime which was nevertheless in many respects closely akin to the feudalism of the West.  The originality of the latter system consisted in the emphasis that it placed on the idea of an agreement capable of binding the rulers; and in this way, oppressive as it may have been to the poor, it has in truth bequeathed to our Western civilization something with which we still desire to live.

We see here, then, the start of the process under which the rights of people derive from contract rather than status.  It is here then that some will see truly heroic energy and, perhaps for the first time, the start of a process for recognising human rights on which hangs our whole concept of western civilisation.  And it might all be said to have started with some sorry disputations about the forms of medieval writs.

But getting something good after a grubby kick-off is something that the English were good at once – at least in a previous manifestation; now they look to be locked into a sooty reverse.

*Compare the settlement entered into by Henry III after the battle of Lewes: the phrase ‘rise against us’ (contra nos insurgere) is expressly stipulated: see A L Poole, From Domesday Book to Magna Carta, Oxford, 1951, 476, note 3.  The author there queries the Plucknett view – this distress, if fairly invoked, would have been a licensed revolt.

NOTES

Maine: Ancient Law, John Murray, 1861, 170

Feudal compact: Gibson, Geoffrey, The Medieval West (Volume II of A History of the West), Amazon, 2014(I have also used remarks in a book The Common Law, A History, A S P, 2012, and a paper Contract in the English Constitution, 2014, in Looking Down the Well, Papers on Legal History, Amazon, 2015.)

Maitland on homage: F Pollock and F W Maitland, The History of English Law before the time of Edward I, Cambridge, 1895, Vol I, 277, 287.  (I refer to this as Maitland, since he wrote all but the first chapter.)

Milsom on buying a man: S F C Milsom, The Legal Framework of English Feudalism, C U P, 1976, 39

Simon de Montfort: T F T Plucknett, Legislation of Edward I, Oxford, 1949 (Ford Lectures), 58

Year Books: Year Books of Edward II (Selden Society) 1V. 161 (1310), Bereford, CJ, cited in Plucknett, 52, note 2

Statute of Marlborough: 52 Henry III

Maitland on: cited in Plucknett, 23

Not the custom: Glanvill, Laws and Customs of England, Nelson, 1965, 132

Maitland on no paradox: above, Vol.2, 232-233

Magna Carta: statute in 1297, 25 Edward I

Bill of Rights: [1688] I William and Mary Sess. II (Bill of Rights) c. II

Plucknett on Magna Carta: above, 76

Plumb on Bill of Rights: J H Plumb, The Growth of Political Stability in England, 1675-1725, Macmillan, 1967, 19, 21, and 64

Vassal homage and Sachsenspiegel: Bloch, Feudal Society, Routledge, 2nd Ed, 1962, 451.  (That great historian, and great man, is entitled to the highest respect on any aspect of feudalism or the medieval world, but we might doubt whether that ‘right of resistance’ applied in England up to the death of Edward I in 1307.)

Bloch on no accident: again, 452.

MY TOP SHELF – 49

 

[These are serialised extracts of all the fifty books referred to in a book published in 2015 called ‘The Top Shelf, or What Used to be Called a Liberal Education’.  The extracts are as originally published, and they come in the same order.]

MEMOIRS OF MY LIFE

Edward Gibbon (1814)

Folio Society, 1991; bound in green cloth, gold embossed, in stone slip case.

I had now attained the solid comforts of life, a convenient well-furnished house, a domestic table, half a dozen chosen servants, my own carriage, and all those decent luxuries whose value is more sensibly felt the longer they are enjoyed…To a lover of books, the shops and sales in London present irresistible temptations…..

Before looking at what Gibbon said, you need either to recall or know that Gibbon was one of the most graceful writers of prose that England has produced.  He was also one of the most devastating hit-men that the world has seen.  Apart from the grace of his style, and the rhythm of his writing, he had a wickedly nice, dry irony.  Here is one short example:  ‘See the tragic and scandalous fate of an Archdeacon of royal birth, who was slain by the Turks as he reposed in an orchard, playing at dice with a Syrian concubine’.  Count the criminal libels or mere denigrations in that off-the-cuff remark about one dead man of God.

Here is my all-time favourite put-down by this author.  It is of the Emperor Gallienus.

In every art that he attempted, his lively genius enabled him to succeed; and as his genius was destitute of judgment, he attempted every art except the important ones of war and government.  He was a master of several curious but useless sciences, a ready orator and elegant poet, a skilful gardener, an excellent cook, and most contemptible prince.  When the great emergencies of state required his presence and attention, he was engaged in conversation with the philosopher Plotinus, wasting his time in trifling or licentious pleasures, preparing his initiation to the Grecian mysteries or soliciting a place in the Areopagus of Athens.  His profuse magnificence insulted the general poverty; the solemn ridicule of his triumphs impressed a deeper sense of the public disgrace.  The repeated intelligence of invasions, defeats and rebellions, he received with a careless smile; and singling out, with affected contempt, some particular production of the lost province, he carelessly asked whether Rome must be ruined unless it was supplied with linen from Egypt, and Arras cloth from Gaul.

There you have the style of Edward Gibbon, and the story of the decline and fall of Rome.

Gibbon came from a family of squires in the Weald of Kent.  He was not well enough to stay at Winchester.  His mother died from breeding six other children who also died.  His father retired from Parliament to return to live among the landed gentry.  He was a man of whim.  One such whim was to enrol Gibbon as a Gentleman Commoner at Magdalen College, Oxford.  In this autobiography Gibbon rained some venom on his old university.

The Fellows or monks of my time were decent easy men who supinely enjoyed the gifts of the founder.  Their days were filled by a series of uniform employments:  the chapel and the hall, the coffee house and the common room, till they retired weary and well satisfied, to a long slumber.  From the toil of reading or thinking or writing they had absolved their conscience, and the first shoots of learning and ingenuity withered on the ground without yielding any fruit to the owners or the public…..Their conversations stagnated in a round of college business, personal stories and private scandal; their dull and deep potations excused the brisk intemperance of youth; and their constitutional toasts were not expressive of the most lively loyalty for the House of Hanover. 

Gibbon was too young to enjoy ‘the taverns and bagnios of Convent Garden’.  Instead, he fell under the spell of the Church of Rome.  This was too much for his father, who banished him to Lausanne, where he stayed for five years to have that nonsense knocked out of him by Monsieur Pavilliard, a learned Calvinist minister.

Gibbon dropped a girlfriend when Dad took exception.  ‘I sighed as a lover.  I obeyed as a son.’  Both limbs of the equation were probably untrue, and we might hope that Gibbon later regretted that tart dismissal of his one and only love.  (Mademoiselle Churchod went on to other things.  She married Monsieur Necker, who became the Minister of Finance in France, and played a large part in the French Revolution, and she gave him a daughter, Mme de Staël.)

Gibbon served for a time in the militia, and remained in it for years, and we might imagine Captain Gibbon, the small man with the rather large and ridiculous head, jogging at the head of his bucolic Grenadiers.  He sought to get away from it all with nights of ‘bumperizing that left him in the morning where he could ‘do nothing … but spew’.

When looking back on his life, Gibbon had no doubt that it was formed by the nearly five years he had spent at Lausanne.  ‘Such as I am in genius or learning or in manners, I owe my creation to Lausanne ….  I had ceased to be an Englishman’.  But he had previously recorded that his taste for the French theatre had only ‘perhaps abated my idolatry for the gigantic genius of Shakespeare, which is inculcated from our infancy as the first duty of an Englishman’.

Gibbon embarked on the Grand Tour.  His lack of worldliness – he had been too young to visit the whores when he was at Oxford – may have left him even more at sea with the French ladies than David Hume had been.  He saw Voltaire perform in a play.  Then he came at last to Rome while he was still casting about for a subject for a history, for it was to writing a history that he would devote his life.  His mixed upbringing enabled him to give a more balanced view of the religious divide than others – ‘the Catholic superstition, which is always the enemy of reason, is often the parent of taste’.  The lines with which Gibbon celebrated his visit to Rome are still celebrated by his admirers.

My temper is not very susceptible of enthusiasm, and the enthusiasm which I do not feel I have ever scorned to affect.  But at the distance of twenty-five years, I can neither forget nor express the strong emotions which agitated my mind as I first approached and entered the eternal City.  After a sleepless night I trod with a lofty step the ruins of the Forum; each memorable spot where Romulus stood, or Tully spoke, or Caesar fell, was at once present in my eye;…several days of intoxication were lost or enjoyed before I could descend to a cool and minute investigation…In my Journal the place and moment of conception are recorded;  the fifteenth of October 1764, in the close of evening, as I sat musing in the Church of the Zoccalanti of Franciscan friars, while they were singing Vespers in the Temple of Jupiter on the ruins of the Capitol.  But my original plan was circumscribed to the decay of the City, rather than the Empire; and, though my reading and reflections began to point towards the object, some years elapsed and several avocations intervened before I was seriously engaged in the execution of that laborious work.

The six volume work of The Decline and Fall of the Roman Empire was indeed to be his life’s work.  Gibbon greatly admired the History of Hume.  Gibbon’s first work had been written in French, but Hume persuaded him to write his History in English.  Hume thought, being an astute Scot, that the flowering of America would lead to English having the greater coverage.  Hume, and most of the rest of Britain, were generous in their praise of the History as it came out, volume by volume.  The Church was not.

Gibbon held court and would allow little chance of reply.  But this Georgian England had a vivacious conversational character.  He once unloaded one of his best foreign anecdotes and was waiting for his tribute of applause.  ‘When a deep-toned but clear voice was heard from the bottom of the table, very calmly and civilly impugning the correctness of the narrative, and the propriety of the doctrines of which it had been made the vehicle.’  This was no less than William Pitt the Younger (the youngest Prime Minister of England at the age of 24).  Gibbon was obliged to give ground and then excused himself and left the room.  He was apprehended looking for his hat, and when asked to return he said that the gentleman who had interrupted him was ‘extremely ingenious and agreeable, but I must acknowledge that his style of conversation is not exactly what I am accustomed to, so you must positively excuse me’.  Jane Austen could have written that.

He died on 16 January 1794 of an appalling illness that had long troubled him.  He was at peace and without fear, but it is a very fair guess that no other writer of history has been so read, so admired, and so loved.  It is certainly the case that this rather absurd Englishman still talks to us and enlightens us after we have gone more than two hundred years down the road.

The great historian looked for patterns in the past.  He was not to devote his life’s work to describing outlines of spent tea leaves.  ‘History to a philosopher’ he said, ‘is what gambling was to the Marquis de Dangeau:  he saw a system, relations, consequences, where others saw only the caprice of fortune’.  Gibbon was describing the decline and fall of an empire.  He saw that decline occurred with the rise of religion; he asked why ancient civilisation failed and if it could happen again.

Perhaps it was because Georgian English gentlemen suspected that their England suffered from similar lesions on its society that they were content to allow Athens and Rome to be described as civilised.  But it is a little curious that educated Europeans should have sought to find how this mighty and civilised empire was brought low – was felled in truth – by a scrawny ragamuffin hasid whose teaching of the Sermon on the Mount underwrote all of what the English would come to call civilised about their empire.  And how could Rome have sought to hold an empire under arms if it subscribed to the view that it is the meek who inherit the earth?

It is not surprising that Gibbon followed what might be called the party line in describing Rome as civilised, but we might notice that he began his first published work, the Essai, with the following words of eternal verity: L’histoire des empires est celle de la misere des hommes. ‘The history of empires is the history of the misery of mankind.’

Sadly, space allows only a couple of quotations on the Crusades:

… the name and nature of a ‘holy war’ demands a more rigorous scrutiny;  nor can we hastily believe that the servants of the Prince of Peace would ensheath the sword of destruction unless the motive were pure, the quarrel legitimate, and the necessity inevitable. 

Gibbon attacks indulgences with savagery.  He then goes on to describe the beginning of the first Crusade.

Some counts and gentlemen, at the head of three thousand horse, attended the motions of the multitude to partake in the spoil, but their genuine leaders (may we credit such folly?) were a goose and a goat, who were carried in the front, and to whom these worthy Christians ascribed an infusion of the divine spirit.  Of these, and of other bands of enthusiasts, the first and most easy warfare was against the Jews, the murderers of the Son of God.  In the trading cities of the Moselle and the Rhine, their colonies were numerous and rich, and they enjoyed under the protection of the Emperor and the Bishops the free exercise of their religion.  At Verdun, Trèves, Metz, Spires, Worms many thousands of that unhappy people were pillaged and massacred, nor had they felt a more bloody stroke since the persecution of Hadrian ….  The more obstinate Jews exposed their fanaticism to the fanaticism of the Christians, barricadoed their houses, and precipitating themselves, their families and their wealth into the rivers of the flames, disappointed the malice, or at least the avarice, of their implacable foes.

Gibbon next savages the institution of knighthood and then goes on to describe the taking of the Holy City, Jerusalem.

A bloody sacrifice was offered by his mistaken votaries [Tancred’s] to the God of the Christians:  resistance might provoke, but neither age nor sex could mollify their implacable rage: they indulged themselves three days in a promiscuous massacre; and the infection of the dead bodies produced an epidemical disease.  After seventy thousand Moslems had been put to the sword, and the harmless Jews had been burnt in their synagogue, they could still reserve a multitude of captives whom interest or lassitude persuaded them to spare.  ….  The Holy Sepulchre was now free; and the bloody victors prepared to accomplish their vow.  Bare-headed and bare foot, with contrite hearts and in a humble posture, they ascended the hill of Calvary, amidst the loud anthems of the clergy; kissed the stone which had covered the Saviour of the world;  and bedewed with tears of joy and penitence the monument of their redemption.  This union of the fiercest and most tender passions has been variously considered by two philosophers: by the one, as easy and natural; by the other, as absurd and critical.

The first philosopher referred to is David Hume; the second was Voltaire.

Here is Gibbon on Israelite conquests.

When the posterity of Abraham had multiplied like the sands of the sea, the Deity, from whose mouth they received a system of laws and ceremonies, declared himself the proper and as it were the national God of Israel; and with the most jealous care separated his most favourite people from the rest of mankind.  The conquest of the land of Canaan with so many wonderful and so many bloody circumstances, that the victorious Jews were left in a state of irreconcilable hostility with all their neighbours.  They had been commanded to extirpate some of the most idolatrous tribes, and the execution of the Divine will had seldom been retarded by the weakness of humanity.

Here is Gibbon on the absolutism of the followers of Jesus of Nazareth.

But the primitive church, whose faith was of a much firmer consistence, delivered over, without hesitation, to eternal torture, the far greater part of the human species. A charitable hope might perhaps be indulged in favour of Socrates, or some other sages of antiquity, who had consulted the light of reason before that of the Gospel had arisen.  But it was unanimously affirmed that those who, since the birth or the death of Christ, had obstinately persisted in the worship of the daemons, neither deserved nor could expect a pardon from the irritated justice of the Deity.  These rigid sentiments, which had been unknown to the ancient world, appear to have infused a spirit of bitterness into a system of love and harmony.

Finally, this is Gibbon on celibacy.

Since desire was imputed as a crime, and marriage was tolerated as a defect, it was consistent with the same principles to consider a state of celibacy as the nearest approach to Divine perfection. It was with the utmost difficulty that ancient Rome could support the institution of six vestals [virgins] but the primitive church was filled with a great number of persons of either sex who had devoted themselves to the profession of perpetual chastity.

In the footnote, Gibbon records of the six Roman maids: ‘nor could the dread of the most horrible death always restrain their incontinence.’

How did our brothers and sisters of Asia fare? Gibbon said that for all his powers of eloquence, Mohammed was an illiterate barbarian, although he says that the ‘base and plebeian origin of Mohammed is an unskilful calumny of the Christians.’ (How did they class the origin of Jesus of Nazareth?)  Gibbon does of course praise Mohammed for dispensing with priests, sacrifices, and monks, but he rejects the doctrine of damnation by which ‘the greater part of mankind has been condemned for their opinions.’ Gibbon was, like most people, fascinated by sex.  He had this comment on Paradise.

Seventy-two Houris, or black-eyed girls, of resplendent beauty, blooming youth, virgin purity, and exquisite sensibility, will be created for the use of the meanest believer; a moment of pleasure will be prolonged to a thousand years, and his faculties will be increased a hundredfold to render him worthy of the felicity ….This image of carnal paradise has provoked the indignation, perhaps the envy, of the monks…

But this Paradise was assured to those who died for the faith since the Prophet had said ‘The sword is the key of heaven and of hell: a drop of blood shed in the cause of God, a night spent in arms, is of more avail than two months of fasting or prayer…’ .

It is very hard now to imagine history in any language being written with such pitch and such intensity.  But he may have unsheathed a sword the consequences of which he never intended.

In Gibbon’s view, Greek philosophy had infected the teaching of those following Jesus of Nazareth.  It was notorious that many of the divisions of the early church were fed on thinking that came to its members from the Platonist school.  Gibbon thought that Platonism did not mix well with Christianity.

But theology, which it was incumbent to believe, which it was impious to doubt, and which it might be dangerous, even fatal, to mistake, became the familiar topic of private mediation and popular discourse.  The cold indifference of philosophy was inflamed by the fervent spirit of devotion.

It may have been like global warming disputants trying their hand with the theory of relativity or string theory.

The familiar study of the Platonic system, a vain and argumentative disposition, a copious and flexible idiom, supplied the clergy and the people of the east with an inexhaustible flow of words and distinctions; and, in the midst of their fierce contentions, they easily forgot the doubt which is recommended by philosophy, and the submission which is enjoined by religion.

It has to be said that these observations ring many bells, and not just in the context of the Christian church.

Baroque sentences flowed out Gibbon just like baroque music flowed out of Mozart.  His canvass blazes like that of El Greco.  He had a sense of grace and rhythm that would have appealed to the instincts of Errol Garner and which had a lasting effect on one of his greatest followers.

For my own part, looking out upon the future, I do not view the process with any misgivings.  I could not stop it if I wished; no one can stop it.  Like the Mississippi, it just keeps rolling along.  Let it roll.  Let it roll on full flood, inexorable, irresistible, benignant, to broader lands and better days.

May I conclude on a whim of my own fancy?  For me, Gibbon was and is the greatest writer in prose of them all.

 

Passing Bull 226 – An unmoored prime minister

 

It was, I think Lord Denning, who spoke of man who had been accused of being a war criminal and of not going to church on Sundays – he only sued on the latter, being unwilling to join issue about whether he was a war criminal.

That case came to my mind when it appeared that the Prime Minister had finally got the gumption to fire his Minister who had applied public money for an improper purpose.  He did so on the suggestion of a civil servant that the Minister may have breached a standard or protocol – and he claims that the civil servant has exonerated the Minister – and Prime Minister – on the substantive charge.

There is a general consensus that Morrison should have fired the Minister, and that he should not have asked a civil servant to advise on ministerial conduct.  That is like my asking my secretary if I had breached a duty I owed as a lawyer.  Now the Prime Minister even refuses to release the report.

It is, therefore, apparently the view of this Prime Minister that it is in order for a Minister to use public money to achieve a party political objective. That is very close to the essence of the impeachment case against Donald Trump.  The only difference is that one withheld public money for a party political purpose – the other paid it out.

At least Mr Morrison is consistent.  One response to his reaction to bush fires was to put out a hilarious ad for the Liberal Party.  Now he is using the work of a civil servant to protect the Liberal Party.  That report does not belong to the P M – it belongs to you and me.

There is another comparison with Trump.  Mr Morrison is now on a regular basis making errors of judgment that would see the CEO of a public company straight out the door.  It is clear that the man does not have what it takes for this position.

Bloopers

Contributions to the pre-conference blog claimed ecosystems could be a silver bullet, they ought to have a value chain — or possibly even be part of one — they should be ‘leveraged’ to ‘maximise value and achieve competitive advantage’ or ‘populated with new addressable customers’. ‘If you orchestrate it and tie the ecosystem on to a platform, you’re really resolving the customer problem holistically,’ enthused one panellist.

Financial Times, 3 December, 2019.

With all that bullshit, ‘holistic’ was a Monty.

MY TOP SHELF – 48 – TACITUS

 

[These are serialised extracts of all the fifty books referred to in a book published in 2015 called ‘The Top Shelf, or What Used to be Called a Liberal Education’.  The extracts are as originally published, and they come in the same order.]

ANNALS AND HISTORIES

Tacitus

Franklin Library, Limited Edition, Pennsylvania, 1979, translated by A J Church and W J Brodribb, Great Books of the World, 1952; fully bound in brown leather, gold inlays and print; raised spine; moiré end papers; gilt edges; and silk ribbon.

Tacitus was born in the first century after Christ.  He reached senatorial and consular rank.  He wrote mainly under the relatively peaceful aegis of the emperor Trajan, after the murder of the ‘tyrannical’ Domitian.  An early work was a small piece on his father-in-law, Agricola, and a book about the Germans, which would become very influential, but he is remembered for two classical works, his Annals and Histories. 

You will see that like Thucydides, Tacitus was equipped by his experience in public life to write a history of and about his times.  The Annals cover the empire from Tiberius to Nero; The Histories deal with a later period including the year of four emperors.  We are missing parts but we are lucky to have what we have – The Annals survived only in two medieval manuscripts, one of one part, and one of another.

Tacitus concedes that the Republic was doomed by its inability to provide peace, but he yearns for older and better days.  At the beginning of The Histories, he does not hold back on the horrors in store.

I am entering on the history of a period rich in disasters, frightful in its wars, torn by civil strife, and even in peace full of horrors.  Four emperors perished by the sword.  There were three civil wars; there were more with foreign enemies; there were often wars that had both characters at once.  There was success in the East, and disasters in the West….Sacred rites were profaned; there was profligacy in the highest ranks; the sea was crowded with exiles, and its rocks polluted with bloody deeds.  In the capital there were yet worse horrors.  Nobility, wealth, the refusal or acceptance of office, were grounds for accusation, and virtue ensured destruction.  The rewards of the informers were no less odious than their crimes; for while some seized on consulships and priestly offices, as their share of the spoils, others on procuratorships, and posts of more confidential authority, they robbed and ruined in every direction amid universal hatred and terror.  Slaves were bribed to turn against their masters, and freedmen to betray their patrons; and those who had not an enemy were destroyed by friends…..Never, surely, did more terrible calamities of the Roman people, or evidence more conclusive, prove that the gods take no thought for our happiness, but only for our punishment…[After the joy at the death of Nero]  The respectable portion of the people, which was connected with the great families, as well as the dependents and freedmen of condemned and banished persons, were high in hope.  The degraded populace, frequenters of the arena and the theatre, the most worthless of the slaves, and those who having wasted their property were supported by the infamous excesses of Nero, caught eagerly in their dejection at every rumour. (I, 2 to 4)

There are two things to notice.  That is a reasonable picture of hell on earth; and we see immediately why Gibbon idolised Tacitus – rolling, rhythmic doom-laden periods, even in translation, dripping with moral outrage and irony.

Tacitus has however told us that he was then ‘enjoying the rare happiness of times, when we may think what we please, and say what we think.’  He begins The Annals with a snap-shot history of Rome.

When Rome was first a city, its rulers were kings.  Then Lucius Junius Brutus created the consulate and free Republican institutions in general.  Dictatorships were assumed in emergencies.  A Council of Ten did not last more than two years; and then there was a short-lived arrangement by which senior army officers – the commanders of contingents provided by the tribes – possessed consular authority.  Subsequently, Cinna and Sulla set up autocracies, but they too were brief.  Soon, Pompey and Crassus acquired predominant positions, but rapidly lost them to Caesar.  Next, the military strength which Lepidus and Antony built up was absorbed by Augustus.  He found the whole state exhausted by internal dissensions, and established over it a regime known as the Principate.

Previous accounts have been marred by flattery or hatred. ‘I shall write without passion or partiality’ – sine ira et studio.

Tacitus then gives a succinct account of the revolution wrought by Augustus.

He seduced the army with bonuses, and his cheap food policy was successful bait for civilians.  Indeed, he attracted every body’s goodwill by the enjoyable gift of peace.  Then he gradually pushed ahead and absorbed the functions of the senate, the officials, and even the law.  Opposition did not exist.  War or judicial murder had disposed of all men of spirit.  Upper-class survivors found that slavish obedience was the way to succeed, both politically and financially.  They had profited from the revolution and so now they liked the security of the existing arrangement better than the dangerous opportunities of the old regime.  Besides, the new order was popular in the provinces. (1, 1)

The Annals focus on the relations between the emperor and senate, of whom Tacitus is scathing.  A prime function of the historian is ‘to confront evil deeds and words with the fear of posterity’s denunciation.  He goes on to describe Rome under Tiberius.

This was a tainted, meanly obsequious age.  The greatest figures had to protect their positions by subserviency; and, in addition to them, all ex-consuls, most ex-praetors, even many junior senators competed with each other’s offensively sycophantic proposals.  There is a legend that whenever Tiberius left the senate-house, he exclaimed in Greek, ‘Men fit to be slaves.’  Even he, freedom’s enemy, became impatient of abject servility.  (3, 65)

But Tacitus says Tiberius disdained monuments.  ‘Marble monuments, if the verdict of history is unfriendly, are mere neglected sepulchres.’  (4, 38)

The lieutenant of Tiberius, Sejanus, the head of the Praetorian Guard, sets up Tiberius into a reign of terror.  The author records the terror with language of astonishing power, in words that will be instantly understood by anyone who has ever lived under a police state.

At Rome, there was unprecedented agitation and terror.  People behaved secretively, even to their intimates, avoiding encounters and conversation, shunning the ears both of friends and strangers.  Even voiceless, inanimate objects – ceilings and walls – were scanned suspiciously.  (4, 69)

It was indeed a horrible feature of the period that leading senators became informers even on trivial matters – some openly, many secretly.  Friends and relatives were as suspect as strangers, old stories as damaging as new.  In the Forum, at a dinner-party, a remark on any subject might mean prosecution.  Every-one competed for priority in marking down the victim.  Sometimes this was self-defence, but mostly it was a sort of contagion, like an epidemic.  (6, 7)

It is unlikely that anyone reading this has lived under Stalin or Hitler, but can you imagine a more powerful picture of what it may have been like?  In the Agricola (45), Tacitus had said that ‘The worst of our torments under Domitian was to see him with his eyes fixed upon us.’  Writing of these horrors must take a toll.  The author feels a need to talk about his task.

Similarly, now that Rome has virtually been transformed into an autocracy, the investigation and record of these details concerning the autocrat may prove useful.  Indeed, it is from such studies – from the experience of others – that most men learn to distinguish right and wrong, advantage and disadvantage.  Few can tell them apart instinctively.  So these accounts have their uses.  But they are distasteful.  What interests and stimulates readers is a geographical description, the changing fortune of a battle, the glorious death of a commander.  My themes on the other hand concern cruel orders, unremitting accusations, treacherous friendships, innocent men ruined – a conspicuously monotonous glut of downfalls and their monotonous causes.  (4, 32 to 33)

Eventually, Sejanus over-reaches and is murdered.  What Professor John Burrow describes as ‘the appalling ruthlessness of Roman political atrocity’ is pitifully depicted in the treatment of the son and daughter of Sejanus in one of the cruellest parts of Western letters.

The general rage against Sejanus was now subsiding, appeased by the executions already carried out.  Yet retribution was now decreed against his remaining children.  They were taken to prison.  The boy understood what lay ahead of him.  But the girl uncomprehendingly repeated: ‘What have I done?  Where are you taking me?  I will not do it again!’  She could be punished with a beating, she said, like other children.  Contemporary writers report that because capital punishment of a virgin was unprecedented, she was violated by the executioner, with the noose beside her.  Then both were strangled, and their young bodies were thrown on to the Gemonian Steps.  (5, 6)

The Gemonian Steps were next to the prison.  They were called the Stair of Sighs.  After execution, dead prisoners were thrown on to these steps, and then dragged to the Tiber.

What Tacitus is describing here is a form of moral disintegration, a kind of national nervous breakdown, of the sort that the French would experience in the nineteenth century, and the Germans in the twentieth.  Roman virtue in the old Republican sense has gone.  It is no longer active and patriotic, but Stoic.  The last way for a senator to show worth was to commit suicide with style.  The only way out might be this form of escape, and it might protect the family from a loss of property flowing from a conviction for treason.  In truth, the old tradition of the family having to give way to the state might bear very nasty fruit.

In The Histories, there is a chilling description of the reaction at Rome to an invasion.

The populace stood by and watched the combatants; and, as though it had been a mimic conflict, encouraged first one party and then the other by their shouts and plaudits.  Whenever either side gave way, they cried out that those who concealed themselves in the shops, or took refuge in any private house, should be dragged out and butchered, and they secured a larger share of the booty; for while the soldiers were busy with bloodshed and massacre, the spoils fell to the crowd.  It was a terrible and hideous sight that presented itself throughout the city.  Here raged battle and death; there the bath and the tavern were crowded.  In one spot were pools of blood and heaps of corpses, and close by prostitutes and men of character as infamous; there were all the debaucheries of luxurious peace, all the horrors of a city most cruelly sacked, till one was ready to believe the country to be mad at once with rage and lust.  It was not indeed the first time that armed troops had fought within the city; they had done so twice when Sulla, once when Cinna triumphed.  The bloodshed then had not been less, but now there was an unnatural recklessness, and men’s pleasures were not interrupted even for a moment.  As if it were a new delight added to their holidays, they exulted in and enjoyed the scene, indifferent to parties, and rejoicing over the sufferings of the Commonwealth.  (3, 83)

They do indeed look like a people that has gone mad, with not one shred of decency left.

The Germania was to become popular in some quarters, not least Germany, for being complimentary.  This is the way Tacitus described some of their customs:

Affairs of the smaller moment the chiefs determine; about matters of higher consequence, the whole nation deliberates.

In the Assembly, it is allowed to present accusations and to prosecute capital offences.  Punishments vary according to the quality of the crime. 

Without being armed, they transact nothing, whether or public or private concernment.  But it is repugnant to their custom for any man to use arms, before the community has attested his capacity to wield them.

They are almost the only barbarians contented with one wife. 

To the husband, the wife tenders no dowry; but the husband to the wife.

There is little that is barbaric here.  Indeed, the German view on carrying weapons – essential for such a warlike race – is much more civilised than that adopted in those jurisdictions that hold every adult – even an untrained fool – has the right to carry a hand gun, a weapon so much more lethal than anything the barbaric Germans could have dreamed of in their cold, dark woods and bogs.

No, the Roman prejudice was not based on the customs of the kind described by Tacitus, but on the living habits of the Germans, a prejudice carried through to Dante, who in The Inferno mocked their consumption of beer, the ‘guzzling Germans’, and later on the habit of the Germans of defeating the Romans at war.  And Tacitus can set up against the drunkenness and aggressiveness of the Germans, those qualities so missing at Rome – sexual temperance, manliness, strength, courage, and loyalty.

And much would be made in the Renaissance and later of the suggestion that the Germans had no hereditary kingship – freedom was said to be older than absolutism.  The downside was the claim of Tacitus that the German tribes had always inhabited Germany and were of unmixed race.  That could be dangerous in the wrong hands.

Agricola is a loyal tribute to his father-in-law, and has a lot to do with affairs in England.  It begins with these words.

Famous men have from time immemorial had their life stories told, and even our generation, with all its stupid indifference to the present, has not quite abandoned the practice.  The outstanding personality has still won an occasional triumph over that blind hostility to merit that poisons all states, small and great alike.

Is that not just dead true – ‘that blind hostility to merit’ – of our choking embrace of bland mediocrity right now?

Later, he gives a most remarkable address by a Briton (Calgacus) to his troops before battle.  Some of it follows.

Out of sight of subject shores, we kept even our eyes from the defilement of tyranny.  We, the last men on earth, the last of the free, have been shielded till today by the very remoteness and the seclusion for which we are famed.  We have enjoyed the impressiveness of the unknown….Brigands of the world, they [the Romans] have exhausted the land by their indiscriminate plunder, and now they ransack the sea….They are unique in being as violently tempted to attack the poor as the wealthy.  Robbery, butchery, rapine, the liars call Empire; they create desolation and call it peace…..Can you really imagine that the Romans’ bravery in war comes up to their wantonness in peace?  (30, 32)

Finally, Tacitus refers to the fact that Agricola stood up to the evil Domitian.

Let it be clear to those who insist on admiring insubordination that even under bad emperors men can be great, and that a decent regard for authority, if backed by ability and energy, can reach that peak of honour that many have stormed by precipitous paths, without serving their country, by a melodramatic death.  (42)

The translations of the smaller works are from the 1948 Penguin (H Mattingly).  The point may be clearer in the more modern translation in the Oxford History of the Classical World.

Let all those whose habit is to admire acts of civil disobedience, realise that great men can exist under bad emperors, and that compliance and an unassuming demeanour, if backed by energy and hard work, can attain a pitch of glory, which the majority reach through an ostentatious and untimely death.

There is a reminder that we proceed under a real disability.  We are not reading what this great writer actually wrote.  It is the same, for most of us, with Thucydides, and we have to take our translation on trust.  The remarks by an ancient critic about the astringency and severity of Thucydides and ‘his terrifying intensity’ apply equally to Tacitus.  But we have seen enough to show why both these great writers are historians for the ages.

 

Passing Bull 225 – A glimmer of maturity at long last?

 

The most polite sensations Australia Day leaves me with are boredom and a kind of resentment – ennui may be the word.  The resentment comes from this.  Those who style themselves as ‘conservative,’ and bust their gut each year to celebrate the day that the English opened their slammer here, and just ignore the grief that we brought to the blackfellas, are usually those most intent on keeping our old flag, with its curtsy to Empire, and on refusing to have our own head of state, but keeping a monarch who happens to be the head of the Church of England.  Nationalism is usually repellent, and the first resort of those who don’t do too well on their own two feet, but when it is mixed with bullshit, which it usually is, it is revolting.  And that is a more accurate epithet for my usual feelings on this day.

So, it was quite a relief to read the front page of The Australian Financial Review that came out on the eve of the day that whatever we celebrate, it is not independence.  Under AUSTRALIA DAY SPECIAL ISSUE we get 2020 REVISION.  Under that:

A burnt-out landscape.  A war zone of dead wild life.  Unbreathable air.  A smoke-damaged vintage.  A laggard on climate change.  Advertising alone won’t repair Australia’s image problem.

(That last one might really put the wind up the Prime Minister, since advertising is about all that he is good for.  Without a script, he is adrift.)

Then there is – still on the front page – a box for an article VIEW FROM THE SHORE.  ‘Rodney Kelly’s ancestor was shot by the Endeavour’s crew and believes the 250th anniversary is a time to put things right.’

Beside that there is a bombshell.  DAVID KEMP: HOW WE FAILED.

‘James Cook’s Enlightenment ideals were discarded by a brash new colony – to the cost of Indigenous Australians.’

Real conservatives are hard to find here, but this one – David Kemp – at least has an impeccable pedigree.  He served as a minister under that awful little man who could not bring himself to apologise to our first nations.  Little Johnnie Howard would have gagged on ‘How we failed.’  He wasn’t there when they aborigines were slaughtered.  (He wasn’t at Gallipoli either, but principle was never his strong suit.)

What Mr Kemp actually said was:

We now know that the hopes of the Enlightenment leaders, fulfilled in so many ways, in relation to the aboriginal people were misplaced and soon betrayed…..The great silence that has settled on this tragic story is now being lifted….Australians have remembered Cook’s arrival on many occasions in the past, and built memorials to the event, but this year will be different, and the differences will record our evolution as nation.  Memorials this year will express a new appreciation that there were two views of what occurred….It has taken 250 years, but we have come at last to recognise that both views must be part of the telling of our national story, and building our national identity.  Australia now is better able to face its past with more realism than before.  It is, after all, a country that is a product both of the scientific and liberal values of the British Enlightenment and of the ancient hospitable, artistic and consultative culture already here, a culture inextricably wedded to the magnificent land we now share.

Those remarks are in my view so significant that I will abstain for now from comment – except to thank and congratulate Mr Kemp for acting as he now has.

In Beneath Another Sky, the English historian Norman Davies looks at the ‘us v them’ issue in a round the world tour.  His discussion of Texas is both droll and enlightening.  In commenting on some of ‘rousing stuff’ about the Alamo, the author says:

One of the failings of patriotism is its blindness to the patriotism of others.

Good blooper

One of the great blessings conferred on our lives by the arts is that they are our chief means of breaking bread with the dead.  Without communication with the dead, a fully human life is not possible.  (W H Auden)

Here and there – These Truths – Jill Lepore – An apologia pro sua morte?

 

If you have a kid in a group who thinks that he is exceptional – or worse, a kid who has been told by someone in authority that he is exceptional – you may very well have a problem on your hands.  That kid may just think that he is superior.  And a superiority complex may be as dangerous as it is annoying.  We see the very worst of it in Donald Trump.  We see an ugly shadow of it over the august university of which Jill Lepore is a member – Harvard.  And might it be the case that just such a complex lays at the heart of the current decline of that curious entity that we know as the United States of America?

Near the death of this very moving book, Jill Lepore unloads some of the deep thoughts that perforate it.

A nation born in revolution will forever struggle against chaos.  A nation founded on universal rights will wrestle against the forces of particularism.  A nation that toppled a hierarchy of birth only to erect a hierarchy of wealth will never know tranquillity.  A nation of immigrants cannot close its borders.  And a nation born in contradiction, liberty in a land of slavery, will fight forever over the meaning of its history.

That’s not all that they have to fight about.  The theme that runs through this book is that white people feel superior to black people.  And that is to put it softly.

At first sight, some of those observations of the author may look a little large – to adopt a phrase of Oliver Wendell Holmes.  What about the first of them – nations born in revolution are doomed to deal with chaos?  Well, just look at France, Russia, Israel, China, and most nations in Africa, Central or South America.  We and Canada and New Zealand – and perhaps other former colonies – brush up OK in comparison to those born in violence.

Russia and China in particular are living disaster areas.  But if you ask when the French Revolution ended, remember that smooth response of Chou En Lai, and watch out for the next outbreak of the gillets jaunes.  Why on earth would you allow a right of rebellion in your constitution?  The French suffered nearly a century of purgatory after the squat Corsican was finally stood down from his pursuit of glory.  He left France a smoking ruin and Europe a charnel house of five million dead.  Revolution followed revolution.

Any revolution comes with counter-revolution built in – as Shakespeare saw in Henry IV Part I, and the following plays.  (The playwright must surely have chuckled when he wrote that fatuous line for a sometime rebel and now a king: ‘Thus ever did rebellion find rebuke.’)  When Benjamin Franklin signed the Declaration of Independence, he remarked: ‘Well, Gentlemen, we must now hang together, or we shall most assuredly hang separately’.  But they and those claiming under them would be taunted by the same inevitable question: ‘If we could do it to them, what’s to stop them doing the same to us?’  It’s like kids winning control of a magic tree-house –the first thing they do is to kick away the ladder and slam the door on any other bloody freeloaders trying to cash in on their free enterprise.

This is a very fine and timely book.  It will cause me to do a note on These Untruths – all of which this author is aware of, and which this title wryly reflects.  For now, I will just offer some views prompted by the book, and set them against some findings that I made in a book about the comparative history of Australia and the U S.

The Americans come across in this book as slow learners and quick buyers.  They won what they call the war of independence for many reasons – all of which were or are on show in the wars they lost so comprehensively in Vietnam, Iraq, and Afghanistan.  In the year of Our Lord 2020, they still have not come to grips with the brave insight of Maximilien Robespierre that no one ever liked armed missionaries.  (Messrs Bush and Blair and, yes, our man had not managed it either.)  If a Russian peasant is being bayoneted or raped by some drooling mongrel, he or she is not concerned to inquire of the ideology of the ratbag who unleashed them.  How did Goya record the response of the people of Spain to the gift of liberation that Bonaparte sought to confer on them?  They reacted with what they and now we call guerrilla warfare.  And it took the genius of Goya to catalogue the horrors.

Take another example.  This book reminds me that Mr Clinton had four things in common with Mr Trump.  He dodged the draft.  He put a member of his family in high office.  He lied big time.  And he had trouble controlling his zipper.  The first two would hardly be attempted, much less condoned, in Australia, but a majority of Americans were prepared to repeat the dose.  With results that were dreadfully predictable.  When discussing Clinton, the author quotes columnist Andrew Sullivan: ‘Clinton is a cancer on the culture, a cancer of cynicism, narcissism, and deceit.’  That is what I mean by repeating the dose.  (I would like to tell you where the column appeared, but in the ocean of footnotes you get with North American scholarship, there is no dictionary of abbreviations.  Apparently I should search for the first ‘(hereafter called …..)’.  That, Mr Publisher, is a real bloody nuisance.)

Americans in this book look easy to sell a pup to – or a fraud.  Just look at the daylight robbery they are accepting – with many applauding – right now.  Just about every day, Trump is guilty of conduct that would get the CEO of a public company fired – point blank, straight out the door.  Indeed, in a nation that valued its capital market, Trump would be under a life ban from directing any public company because of his association with known criminals.  Yet America, once the bastion of capitalism, asks for and expects less from its president.

When President Obama was inaugurated, a friend and I got up to watch it.  We had our first Bloody Mary at 4 am when he took the oath.  We were tipsy at breakfast.  When Trump was elected, I said that it was my worst day on earth.  We knew it was going to be horrible, but no one predicted – no one – the speed of the moral and intellectual collapse of government that followed.  The great republic now lies flat on its face in the gutter.  Our best cartoonist showed Trump lying back in bed with that serene gross indifference of his while the Statue of Liberty lies on her side with her back to him with a face to the artist of the white eyed horror that Conrad depicted in Heart of Darkness.

It is probably too early to diagnose the cause of this collapse, but its scope suggests that the flaws in the fabric identified by Jill Lepore run very deep – and dangerously so.

It now looks clear that we underestimated the impact of the successful attack by terrorist zealots on the twin towers and the sheer ineptitude of the U S government’s response.  It’s as if the nation underwent a kind of slow nervous breakdown, with a huge loss of faith not just in government but in the whole American project.  It’s hard to hold your head up when you keep picking bad fights and losing worse wars, and those of us outside the Union forget, if we ever knew, the throbbing pain of the grief and anger of those who loved the poor men who died for nothing.  American ‘exceptionalism’ had become worse than a sick joke.

And we also underestimated the impact of the Great Financial Crisis – and the ineptitude of all our responses.  Not only did we not lock up enough of the crooks and idiots responsible; we acquiesced in paying them shiploads of money that customarily attract the epithet ‘obscene.’  If capitalism is good, who are its winners?  Those who missed out – which is most of us – felt a sense of unfairness and betrayal.  The whole system looks crooked.  That state of mind can be very dangerous.  Stirrers like Marat and Farage thrive on it.

One by one the premises of the old regime are being discarded.  Jonathan Sumption says: ‘Democracies operate on the implicit basis that, although the majority has authorised policies which the minority rejects, these differences are transcended by their common acceptance of the legitimacy of its decision making processes.’  That premise has gone clean out of the window in America and it started to quit the building no later than when the minority – fronted by people like Messrs McConnell and Nunes – determined to put a spoke in the wheel of a black president.  Their reasoning was possibly correct and certainly vicious – if gridlock results, people will blame those in charge.  The trouble is that if enough people cheat at a game, the game loses its purpose and becomes unplayable – just look at cycling then and athletics now.

Lawyers have a saying that has merit.  The most important person in a courtroom is the loser.  If at the end of the fight, the loser doesn’t think they got a fair run for their money, then you the judge have failed in your duty not just to be fair but manifestly be seen to have been fair.  You could say the same for elections, and for the reason identified by Jonathan Sumption.  The most important people when the vote is declared are the losers.  The winner has to try to assure the losers that the government will not act against their interests.  This President, a bankrupted property developer with a water-mouthed spaniel at his back, has hardly even pretended to do anything of the kind.  His insecurity makes him innately selfish.  He and McConnell and the like look to be incapable of positive construction.  They take the easy way out – negative destruction.  Their denials are so Manichaean that you might ask, following the text, whether a nation so dedicated can long endure.  If you put a spoke in the wheel often enough, the whole contraption becomes unworkable.

The American record with their first nations is probably worse than ours – it is certainly more duplicitous, and our indigenous people enjoyed the protection of London for longer than the American Indians.  (So did the Maoris in New Zealand – the mother country was always kinder to the locals than the colonists.)  America had its version of our White Australia policy, but what the book keeps coming back to is the distaste if not contempt felt by so many white Americans for all black Americans.

We had our convicts, and their motley drunken keepers, but slavery is altogether different and more corrosive and corrupting.  It is the ultimate contradiction of any reasonable definition of civilisation.  It is also the reason why it is so disturbing to see seriously educated people describe ancient Athens or Rome as civilised – when each was premised on slavery and that variant of a protection racket called empire.  Indeed, on a bleak day in Maine, you might now reflect that the United States as it stands comes off the Indians slaughtered in unequal wars of conquest or revenge and from what Lincoln called ‘the wealth piled by the bondman’s two hundred and fifty years…and every drop of blood drawn with the lash.’

It is seriously hard to describe as Christian a nation that killed about three quarters of a million people in a civil war fought over what we now call white supremacy.  And after that war – in which the Union was held together by the God given genius and strength of Abraham Lincoln – the Supreme Court tempered if not reversed the result by the infamy of the doctrine ‘equal but separate’; ordinary people showed that there is a little bit of Eichmann in all of us by lighting up the cross of Jesus Christ, the Prince of Peace, for the Ku Klux Klan; home grown terrorist fanatics spent their lust on lynchings – and the crowd just loved it; the South aped apartheid with Jim Crow; Jackie Robinson, returned victorious from the war, was told to go to the back of the bus with the rest of the niggers, and warned that he could not answer back when spat on by fans of his own team if he turned out for the Majors; some of the best musicians in the world could not get a meal or drink in most of those places they played in; counsel told the Supreme Court that its unanimous decision in the school bussing case – a true prodigy of high justice –may not be obeyed; it was said of one of the greatest sopranos ever that when ‘she makes her debut at the Met, she must do it as a lady, not a slave’; and when the current president shamelessly and inanely flirts with the sediments of all this venom.  People outside America do not understand how vicious and pervasive this poison is.

Indeed, you could be forgiven for thinking that the nation as a whole has not forgiven itself for putting a black man in the White House – the very language bespeaks its awfulness – and that the whole disease of and following the election of Trump is a kind of bilious act of rejection – just as I celebrated the end of exams by throwing up every time in full loud, cleansing volume.  The twisted mania of Trump that drives him to seek to reverse anything that that black man did while in office even now extends to rejecting an intervention of the wife of that previous president to improve the diet of school children.  That little bit of petty bitterness fairly recalls the mania of Joseph Stalin.

Some say that Churchill said that Atlee was very humble, but that he had a lot to be humble about.  If that were meant as a put-down, its premise is at best doubtful.  But I doubt that he did say it.  The two men fought the war together and they remained close after it.  But the sentiment comes to mind with American exceptionalism.

Like England before it and Israel now, many Americans believed that they were the chosen people of God.  The white nation was started by religious fanatics called Puritans.  They had been in a minority in England (and they had gone out of favour under that ultimate zealot Oliver Cromwell – some of the madder of them actually shut down pubs!)  But in the Promised Land, the Puritans were the majority.  And this majority had no place in their hearts for losers – winners were those on whom God smiled – and God was evidently not smiling on those creatures with black skins or red skins.  He was certainly not smiling on losers with white skins – they had obviously failed before God and it would be impious in the extreme to question His judgment.

Religion has not been good for America – any part of it.  Rome sanctioned rape by partition in South America.  (You could say the same of England in India.)  The Spanish just read the Papal version of the Riot Act to the natives and then went in for slaughter.  There was of course venerable precedent for the extirpation of women and children unfortunate enough to live on land promised to others by God.

In North America, the Puritans never let God get between them and a dollar.  But He did come between them and those who had not done so well.  Here is the germ of the repeated and tragic rejection of universal health care in the U S.  This is an issue like gun control – ideology prevails over humanity.  The cementing of the rights of the righteous in the Bill of Rights sets the United States apart from all other western democracies.  The resulting slaughter of children and the failure to look after the halt and infirm – the American health system is the most inefficient and expensive in the West – sets them apart from the rest of the West.

These failures of national governance preclude Americans from saying that the United States is a civilised nation – if such a nation is one where people treat each other with civility and with respect for the dignity or worth that each of us holds merely because we are human.  And if the Declaration of Independence did not rest on that premise, just what on earth did it say?

So, to go back to Churchill and Atlee, if American exceptionalism was just preppy, chest-beating superiority – which is about what Alexis de Tocqueville saw – what do you do if you have nothing to be superior about?

These truths is a very fine and readable book that casts a fluid but bright light on the great issues of now.  In a book called A Tale of Two Nations, Uncle Sam from Down Under (2014), I sought to look at some of those issues.  I set out below the chapter on my findings.  On reflection I think that I should have said that in my view both labour and primary industry are better off in Australia than in America because of intervention by the government here that would there be described as collectivist or, worse, socialist.  That would be just another case of a silly ideological label trumping sense and decency.  And it would be one more time that we might go back to that beautiful moment when a brave and canny Boston attorney stood up to that awful Joe McCarthy and said : ‘Have you no sense of decency, Sir, at long last?’

However all that may be, it is now clear that the American model is utterly broken.  For what it is worth, my view, which is partisan, is that most of the blame must fall on those Republicans in the government who have shown a sustained want of good faith in the past and are showing appalling venality and cowardice now.  But it is also clear that all the King’s horses and all the King’s men are no longer there to put it all back together again.  They have been gone a very long time.  And the problem is the same for the U S as it for us and the U K.  In a democracy, a government is only as good as its opposition.

God only knows where that leaves the rest of us.

 

Extract

Findings?

History is the essence of innumerable biographies.  (Carlyle.)

The world’s worse crimes have been committed by a kind of refusal to treat each man, woman and child for their intrinsic worth when people in power say that the nation or state is more important than you or me.  There we have one issue with trying to make sense of the past.  We speak of peoples who have become nations.  Is it either possible or decent to ascribe general characterizations, or are they just moonshine, and nasty and dangerous moonshine at that?

There is of course another problem.  What would we know?  Very few people reading this will have faced starvation, arbitrary arrest, secret police, censorship, a fanatical cleric in charge, or a lord knocking on the door on the eve of a wedding to assert his seigneurial right; none will have experienced slavery, and few will have felt at first hand that they were being put down because of their colour or their faith.  Compared to most of the subjects of this book, most of its readers are supremely privileged, living in one the freest, securest, and most plentiful nations on earth; and not many readers will know or practise a religious faith in the way that their ancestors did.

How would we know how a Puritan may have reacted to Massachusetts in 1620?  How would we know how an English laborer transported for theft may have felt on reaching Sydney in 1810, or how a Negro slave emancipated may have felt in Savannah Georgia in 1864, or how a Russian refugee may have felt on arriving in New York in 1924, or how a Vietnamese refugee may have felt in arriving in Melbourne in 1974?

And then we see things differently to the way that our subjects saw them.  We have both hindsight and our own baggage, and we find it hard to resist the thought that we may know better than our subjects.

Dr Christopher Hill was a distinguished and luminous English historian.  He was also a Marxist (and sufficiently devout for that belief to survive years in Russia).  Does that mean that we should ignore him, or just watch out and be ready to gloze when words like ‘class’ and ‘masses’ appear?  Dr Hill wrote a book called The World Turned Upside Down.  It is an illuminating account of radical ideas in England during the seventeenth century by a most distinguished scholar of that period.

Dr Hill reminds us that people then believed in magic.  God and the Devil were all about.  People went to witches, believed in fairies, and used charms.  Thieves went to astrologers to see if they would be hanged.  A ‘cunning man’, a white witch, was cheaper than a doctor or lawyer.  Astrologers, mathematicians and conjurors were the same – like our economists.  But scientists were the first to claim that science proved that God exists.  Charles I said that ‘Religion is the only firm foundation of all power’, but the Reformation, although hostile to magic, stimulated prophecy.  John Milton spoke of ‘free trading of truth’ and took it as a given that all men were born free.  Roger Williams compared a church or company of worshippers to a corporation of Turkish merchants.  A Baptist preacher called Mrs. Attaway called for objections after her sermons, like a judge does with counsel after charging a jury.

Assuming that it took a while for the stock of the Puritans in New England to reach that degree of sexual latitude described by John Updyke in his novels – which does appear to have been quite substantial, in one direction or another – what about sex?  How hung up were Puritans about sex in the 17th century?  Yes, ‘sin’ included sex for Puritans, but there was what Dr Hill calls the Puritan sexual revolution.  This was, he says, an important part of the protestant ethic – replacing property marriage, with love outside it, with one based on mutual love.  That was one part.  Another part of the revolution was the downgrading or replacement of the celibate ideal with the abolition of monasteries and nunneries, and the introduction of married clergy.

If that sounds theoretical, here is a statistic that may not be generally known: we are told that at least one out of every three brides in seventeenth century England was pregnant when she was married.  There is such a thing as nature.  The sex drive remains constant, but there have been improvements in contraception.  As Dr Hill remarks: ‘Sexual freedom in fact tended to be freedom for men only, so long as there was no effective birth control.  This was the practical moral basis to the Puritan emphasis on monogamy.  The fact that it has since lost this basis tends to make us forget how important it was in his time.  Unless the seducer was a Don Juan rich enough to maintain a bastard and its mother (as Charles II and the court wits of the restoration could) sexual liberty was a hit-and-run affair.  Many putative fathers must have taken to the road, leaving the mother and the parish authorities to carry the baby.’

That is one way we can go wrong in trying to follow the past – by forgetting how much has changed, and that people’s customs change.  Another way is being one-eyed, as people tend to be with football.  They watch the match from their point of view and are biased, generally hopelessly so; that is part of its charm.  Waltzing Matilda was not written from the point of view of the squatter – it was written from the point of view of the shearer – who happened to be the thief.  The squatters saw things very differently.  One squatter named Mc Bean was so outraged by what he saw as lenient sentences handed down by magistrates against sheep stealers that he posted an advertisement addressed to the thieves, and doubtless the magistrates, in the newspapers.

In consequence of the decision of the magistrate in the Benalla Court, the undersigned would be obliged if sheep stealers would take only what mutton they require for private use.

Benalla would have been the court for the Quinn family of Ellen, the mother of Ned Kelly, and the Kellys with her.  Thomas Keneally mentions the aggrieved squatter in introducing the Kellys.  He says the Kelly boys ‘grew up as part of a group of wild locals known as the Greta Mob.’

The Quinns were a large bush clan, wanted a various times for horse theft, and characteristic of the small, alienated selector and farmer to whom stock theft came naturally and was, if Ned Kelly’s Jerilderie letter can be believed, in the case of the Irish in particular, seen as an extension of vengeance on the stock of landlords in Ireland.

Thomas Keneally is a writer of fiction and history in good standing, but might he be swayed or biased because he is of Irish extraction, or because he trained for the priesthood and was ordained as a deacon?

Mr Keneally says that the stratagems of the squatters were meant to frighten off selectors like Ellen Kelly (Quinn) and that the ‘demand that the police deal strenuously with all stock theft led ultimately to a relentless and vengeful bullying of the Kelly clan’.  After Kelly murdered three policemen, we are told that there ‘are signs that Ned, who was not a killer by nature, became fatally haunted by the men murdered at Stringybark, and from then set about, however aggressively, seeking forgiveness before man and God.’

We are then told that the Euroa hold-up ‘like other of Ned’s acts of hostage-taking was in part a kindly affair.’  In the Jerilderie letter, his ‘denouncement of police competed with his plea for absolution for the Stringybark killings.’  When leaving, Ned gave his ‘normal and eloquent speech about what had turned him into an outlaw.  His anxiety to justify himself is telling.  No other bushranger sermonized to pubs full of citizens or went searching for someone else to publish his apologia….The Jerilderie letter…..seems to come directly from the language of Irish protestors and Irish transportees who saw themselves as victims of a system rather than, as the authorities would have it, criminals.  There existed a pernicious system which had not let him live in peace, Ned claimed…..One aspect of Ned’s instinctive republicanism emerged in the universal Irish peasant hope that America would declare war on Britain…’

And so it goes on.  Ned was so haunted by Stringybark, that it was unlikely that Ned had ‘passed over into a state of nihilism in which death dealing was the chief principle of his life’.  He did not want to murder police at Glenrowan – he just wanted hostages to swap for his mother.  Joe Byrne was sent to warn Sherritt, not to kill him, but Sherritt uttered words which ‘provided Joe Byrne with an absolute warrant for Sherritt’s death.’  But the train came from the other direction, and ‘Ned’s idea of taking those on the train hostage was stymied.’

So, what did it all mean?

When Ned died in 1880, the Melbourne establishment were beginning to develop financial structures which would operate so fraudulently that Ned’s raids on banks would be modest by comparison.

We may take it that Mr McBean would have had a very different view, and may well have been prepared to pay to express that view.  So might other sheep owners or shepherds, or others of Scots descent or who are not of Irish descent.  (The author makes a disclosure: his middle name is McPherson, spelt differently from the Christina Macpherson who played the tune of Waltzing Matilda for Banjo Paterson.)  Mr McBean would certainly have drawn the line at the suggestion that the Protestant Ascendancy, and the squatters and the bankers, and the other members of the Melbourne Club, were guilty of worse crimes.  There were not enough bodies.  From the moment that Ned Kelly shot and killed three coppers in cold blood, that gangster story was only going to end with his death, and the only question was how many he would take down with him.  The number of four might disappoint some of the poor and the oppressed – but not Ellen Kelly, since two of them were her sons too.

So, allowing for waffle, ignorance, and prejudice, are there any general propositions that we might hazard about these two peoples?

(1)

Well, it would seem safe to say that the U S at least feels more independent than Australia, and that its people feel that they and their nation are standing on their own two feet in a way that Australians cannot claim while they continue to import their head of state whose position turns on the English Constitution.  The ‘fourth’ celebrates independence; Australia Day looks back to the day that the English declared their foreign jail open.  Australians also look for another long weekend for the Queen’s Birthday.  Anyone who has celebrated the fourth or fourteenth of July in the nations that do so will know just how flat and empty Australia Day may be.  It can be downright embarrassing.

(2)

Next, it would be surprising if there were no differences in the outlooks on life of the two peoples looking at the very different ways that their settlers and migrants arrived.  For the most part the Americans did it on their own, while the Australians did so at the cost or with the help of government.  People in America, and their politicians, are not as quick as Australians are to look to government for help in life.  Put differently, Australians seem to depend on government more for welfare than Americans do.  Australians do not see this as a minus – anymore than people in England, France, and Germany do.  How many Americans see their side as a plus is an interesting question, but is this also one ground for suggesting that people in Australia, as opposed to the people of Australia, may be less independent than their American counterparts?

Has this distinction led to a greater emphasis on what is called free enterprise or the role of the entrepreneur in America than in Australia?  To go back to our earlier discussion, do people in America rely more on what they can negotiate for themselves and are they less dependent on their classification with the government than Australians?  Is the old difference, or alleged difference, between contract and status still relevant?

These are hazy areas, but Australians going to the U S are frequently impressed immediately by the eagerness of people to do business with them on a one on one basis.  The Americans tend to look and sound more business-like – and it is first person singular: it is what I have or can do, not what we have got or can do.  ‘What are you offering cash for on your first drink?  Can’t you see that I am running a business behind in this bar?’  And, if a tip is part of the deal, don’t be surprised to be told that you have not kept up your end of it.  If in some sense Americans have been more enterprising than Australians, then that distinction may well be being eroded at either end.

(3)

The impact of the frontier is much, much more extensive in America than in Australia.  There was a kind of battle or series of wars going on for territory for hundreds of years.  If this led to some rough and tough sense of independence, as it did with the Boers in South Africa, it also has led to an appalling tolerance of guns and violence that so disturbs friends of America.  In any event, that rough and tough independence is not what it used to be.  In the year of Our Lord 2014, the Marlboro Man is not what he was – he is now just a broken down case of slow suicide in public, and the directors of his manufacturer may in the future make new law on freedom of contract.  The macho man is on the wane, and men at large can no longer pretend that women just do not exist.  The whole idea of a man’s world is now just bullshit, although the grosser aspects of American football and ice hockey are some fairly stern relics.

(4)

The continuing murderous triumph of the gun lobby in the States is partly down to money – which does seem to carry more weight in America than in other parts of the West – and partly down to what might be called a doctrinaire streak in American public life.  The English Constitution derives from the common law and is set out in many old acts and texts and ultimately is a state of mind.  Its methods are utterly different to those of a rationalist interpreting and applying a code.  That is the kind of function that a constitutional court applies, and it produces a lot more doctrine and dogma.  This is where the great power – liberal or conservative – arises with the Bill of Rights and the Supreme Court.  The right to bear arms in the 1689 Bill of Rights is still part of the law in England and the Australian states, but not as part of an unalterable tablet of the law.  The difference is immense – only a lunatic would suggest that it might have the consequences presently contended for by a majority of the Supreme Court.

Almost no American would want to give up their Bill of Rights, although all sides would dearly like to see a great change in some or other of its manifestations from time to time.  You find people on both sides in Australia, but the short answer is that there is nothing to suggest that a referendum might be passed to amend the Constitution.

(5)

Both countries are parliamentary democracies.  The states have more power and substance in America.  (That is a plus there – it would not be in Australia, where there is too much government already.)  The U S gave the president more power on paper, but Australians would not want their nominal leader not to be answerable in the Parliament.  The Australians have by attrition just about ditched an independent civil service, and ministers no longer resign for the sins of their department.  Australia is abandoning the Westminster System by default.

The party system, and with it the parliamentary system, are stressed, for different reasons, but to an equally worrying degree.  Money is huge in American politics, and that fact is not good for the image of America.  It resembles a capitalist feudal structure, a hierarchy of power and patronage built on capital rather than land.  It looks to outsiders as if too many people are in the pockets of too few other people.

While Australia remains wedded to English legal procedures, and you can see and feel a horse-hair wig in many state courts, the American court system has developed on its own with benefits to others including Australia.  We should all be grateful that the Americans are continuing to champion the role and place of the jury.

Here is just one example of the differences in government between the two countries, and one that is characteristic.  Americans do not have compulsory voting; Australia does.  Each side thinks that the other is mad.

(6)

Religion got off to a strong start in America.  It got off to a bad start in Australia – the Reverend Marsden was a flogging parson, and the Anglican Church was and is as establishment as you can get – the monarch of the nation, its Head of State, has to be a member of it.  It does seem clear that religion is a more live force in America, and that Australians would count their comparative relaxation as an unqualified plus.

The churches in Australia played a far greater role in the development of independent schools.  The churches now have very little part to play in these schools, but the failure of governments in Australia to see that its schools keep up with the private schools – called, after the English model, ‘public schools’ – is a part of the biggest failure of government in Australia – for which the church is not to blame.  Although education is not a Commonwealth function under the Constitution, it is in fact their responsibility.  Generations of ineptitude and buck passing at all levels had led to a disgraceful failure to provide an equal opportunity for the young people of Australia to get the kind of good education that they deserve and that the nation needs.  We now see a parliament composed in large part of those who had a free university education legislating to deny that right to others.  The products of the age of entitlement are kicking way the ladder.  This tragic failure of national fibre may well never be corrected.  It would require deep foresight and a cool nerve.

(7)

A sense of independence and self-creation, a real revolution, the creeping frontier, real heroes, and mythical ones, and God have all made patriotism much more visible in the U S than elsewhere.  Americans look to get more involved in national affairs than Australians, and to show more reverence for their flag and at least for the office of the President, but this patriotism can get syrupy in a way that got up the nose of Alexis de Tocqueville and can lead to a kind of moral blindness – in places in the world where that kind of thing might ultimately be noticed.

(8)

Each nation got to where it by means that some would prefer to forget.  Both relied at the start on the free labour of imported convicts – they were Australia’s raison d’être – but before they could do that they had to wrest the land from its native occupiers.  They did so in a way that caused immeasurable misery and loss and by means that most people cannot square with the tenets of the religion of the invaders.  There is not much to be gained from getting hung up on labels, as the Turks want to do with the Armenians.  The label of ‘genocide’ may or may not be contentious.  What matters are not labels, but the evidence of what happened, and the moral or political conclusions that can be drawn from that evidence?

These are issues as much for Britain as they are for America and Australia, and that may not be a bad thing, because the British may not get so skittish about a subject that they may know a lot about because of their shame in Ireland and the rest of the Empire.  In reviewing a book by Tom Lawson, The Last Man: A British Genocide in Tasmania, Professor Bernard Porter said:

The lesson the Holocaust should be used to teach – if it’s proper for history to be used in this way at all – is that any nation or people can behave atrociously if the conditions are right.  It wasn’t just the Germans.  In different circumstances the British might have behaved as badly.  In certain circumstances – and the Tasmanian case is an example – they did.

‘Any nation or people can behave atrociously if the conditions are right’ is you might think a self-evident truth.  It is surprising how many people either do not acknowledge it, or they do not accept that it applies to them, and they do so on the footing of the foundation of the whole bloody problem, the state of mind called ‘racism’, the belief that we are better than they are.

(9)

The main difference between the two nations lies in their standing in the world.  America is the biggest economy and leader of what used to be called the free world.  Australia is a client state, not as troublesome as Israel, but not as close either.  Australia loyally followed its patron and protector into Vietnam, Iraq, and Afghanistan in order to honour and secure the alliance, but not one government has felt able to acknowledge that fact.  There is what is now called ‘a disconnect’ between the governors and the governed in Australia on the subject of honouring the U S alliance in much the same way that there is a disconnect in America on the subject of tax – they are, if you like, the elephants in the room.  But against that is the tendency to hubris that we saw, and the brittleness of Americans noticed by de Tocqueville – and now their obvious lack of appetite for any ventures overseas, for which they receive no offer of help beforehand or vote of thanks afterwards, and which is predicated on the failure of the U N for which the U S is not responsible.

(10)

Finally, and for whatever reason, there is a deep streak of orthodoxy and conservatism, or, if you prefer, an aversion to risk and skepticism of adventure, in both countries.

More than one hundred years ago, the English nation elected as their Prime Minister a grandson of an Italian Jew, who went on to become the closest confidante of the most powerful monarch in history; more than eighty years ago, the English elected as their Prime Minister a man of Scottish descent who represented the labouring class; and more than thirty years ago they elected their first woman Prime Minister.  Americans now have their first black President, but it took them nearly two hundred years to elect a Catholic as President, and they are yet to elect to that office a woman, a working man, or a Jew.  All three of those omissions are extraordinary – to speak softly – in light of the contribution to American life made by women, working men and Jews.

In truth, the US does have the appearance of a conservative and hidebound republic.  To this day no one could reasonably run for the office of President of the United States while claiming to stand for working men and women or to profess openly the views on religion that we believe were held by Jefferson, Washington and Franklin – none of whom stands low in the American pantheon.  The inability to move appears worse with a political engine where the gears are clashing, and a disparity in incomes and assets that appears to be growing.

Not one of the criminals behind the 2008 crash ever looked like going behind bars; the great citadels of business look to be beyond, or immune to, the criminal law that otherwise maintains an ever growing prison population; the big corporates just do cosy deals in private with the lawyers and civil servants called regulators; an agreed amount of boodle goes to the State as a bribe; the company adjusts its books in an accounting exercise; the shareholders get a reduced dividend; the real crooks keep their jobs and their unimaginable bonuses; and your average Joe winds up in the slammer for much lower levels of crime.

Australia is struggling under too much government and too much law, and a disinterest and distrust of politics that was once a charm but which now sustains groups of inept and mediocre politicians who have never held down a real job and who are determined to put their own interests above those of the people.  The nation has next to nothing to look back on politically except a kind of enduring noiseless torpor.  There is almost no chance of anyone seeing anything like the vision, drive or guts of someone like David Lloyd George or Winston Churchill in the People’s Budget.  By and large, the politicians and the press have succeeded in either anaesthetizing or repelling the people.  Each of the two main parties is prepared to execute a leader who is insufficiently bland and replace them with an antiseptic model that the people trust even less and they in despair vote in real layabouts and charlatans.