Us and the US – Chapter 1

 

[The extracts that follow under this gravely ungrammatical title précis a book published in 2014 called ‘A Tale of Two Nations; Uncle Sam from Down Under’.  That book sought to compare the key phases of history of the two nations under fourteen headings.  That format will be followed in the précis.  The chapter headings are Foreword;1 Motherland; 2 Conception;3 Birth; 4 Natives; 5 Frontiers; 6 Laws; 7 Revolution; 8 Migration; 9 Government; 10 Wars; 11 Race; 12 Wealth; 13 God; 14 Findings; Afterword.  Each chapter is about 1400 words.]

1

Motherland

Our two nations, Australia and the U S, have a common parent.  America was commenced by colonists from England.  Australia was commenced by colonists from Great Britain – the nation of Great Britain had come about by the union of England and Scotland during the nearly two hundred years that separated the first sustained English settlements in America in 1606, and the British settlement of Australia in 1788.

Historians broadly agree that the English nation and language were founded by Germans (Anglo-Saxons) in the six hundred years or so before the Norman Conquest.  They left almost nothing of the remains of the Romans or the native inhabitants who were there before the Romans came.  The Anglo-Saxons brought the institution of hereditary kingship, a tradition of popular assembly, and a system of incidental laws (or dooms or decrees) to supplement or articulate existing customs.  They made no attempt to codify all their laws.

The Normans, a tough northern breed that had come down into France, brought a strong central government.  They opened the way for royal justice and a law that was common to all England.  This is what they and we would call the ‘common law’ (la loi commune).  The Normans also brought the jury, at first mainly as a tool of government, but later as a mode of trial that the English and Americans would come to regard as an essential plank in their constitution.  Although the Normans came after the Germans, and although their conquest was complete, they did not contribute as much to the growth of English law as the Germans. One great American scholar said that ‘the English law is more German than the law of Germany itself’.  Germany would later adopt Roman law – as had France and most of Europe.  England never did so.

So, the first point about our common parent is fundamental.  England’s laws and constitution – their constitution grew out of the common law – were entirely home grown.  Unlike most of Europe, the English never adopted the Roman model.  They were always determined to go their own way.  You can now better see the differences between England and the Continent to this day.  Had either nation been created by France, Germany, Spain or Italy, the result would have been unimaginably different.

The period called the Middle Ages was characterised by feudalism.  The Roman Empire had maintained order.  When it collapsed, Europe entered a dark phase of disorder and violence called the Dark Ages.  People looked to a strong man for protection.  He gave that in return for loyal service.  The vassal paid homage to his lord by taking the hand of the lord between his own and affirming that ‘I am your man’.  This feudal bond was tied to the land and it worked up to the king.  Lords held land from the king and common people held land from a lord and they owed obligations to that lord.  Medieval people loved hierarchies.

Now, most wealth came from the possession of land and ownership rested with a ruling caste.  The land was worked by peasants who were tied to the land.  The power of government cascaded down through intermediaries.  These feudal ties and differences in caste were very prominent in the French and Russian Revolutions.  Six hundred years before the Russians cremated feudalism in a nation–breaking conflagration, the English king in his parliament had made a law that represented a political compromise between the nobility that held the land and those who actually managed the land.  It was a law that cut clean across the whole idea of what we call ‘feudalism’.

Here is the second fundamental point about our common parent.  By the time that England became a colonising force and then an imperial power, feudalism had ceased to matter to it.  The English were very far advanced in the destruction of caste and the promotion of the ideal of legal equality.  Things were very different on the Continent.

Before England founded either of our two nations, it had undergone two cataclysms that we now see as being essential to its nature.  To resolve a civil war, the barons forced King John to agree to the terms of what is known as the Great Charter, or Magna Carta.  We see it as England’s first statute.  It is revered as much in the U S as it is in the U K.  What it showed was that the king had had to negotiate if he wanted to keep his crown and that he had had to agree to accept express limitations on his powers.  The king also had to accept his general obligation to obey the law.  The fact that the king had been driven to negotiate is at least as important as the two most famous clauses:  ‘No man shall be taken or imprisoned … except by the lawful judgment of his peers or by the law of the land.  To none will we sell, to none will we deny or delay right or justice.’  If the king, too, had to negotiate, then he too was a politician.  Most importantly, the people through the lawyers – the common lawyers – could now say that the king was under the law because the law made the king.  This is the real beginning of what we call the rule of law.  That is central to England’s view of itself and is the third elemental difference between it and other colonising powers.

The other cataclysm, the Reformation, was nominally about religion but was really about politics.  Henry VIII wanted an heir but because of a conflict of interest, the pope refused to give him a divorce.  The English revolted.  They gave themselves religious home rule.  They would run their own church free from interference from another power.  They did this through their parliament, so greatly enhancing its power.  This is the fourth huge difference between England and other colonial powers – just look at the role of religion in the French and Russian revolutions.  And the lawyers were into this ruckus up to their necks.  How many of the failings of governments in Spain, France, Italy and Greece were due to their failures to tame their church?

So, by the time that we get to the two English revolutions of the 17th century, the English had put clear and reasonably firm limits on the supremacy of the crown, and they had broken the supremacy of the church.  A strong legal profession had destroyed the clergy’s monopoly of learning.  There was broad agreement that only the parliament could make laws and that the judiciary had to be independent.  The battleground was to be the distribution of the executive and revenue powers between the crown and the parliament.  That issue led to two revolutions in England, and then one in America.

It was put to bed, finally, during the 17th century.  The conflicts with the Stuart kings were resolved in favour of parliament in the Bill of Rights.  This is the platform of the English constitution as it stands today.  It provided the basis of the American Declaration of Independence, and Australia’s Constitution would be set out in the schedule to an English Act of Parliament.

The fifth defining element of England as our parent was its subscription to representative government through parliament, and a reverence for the healing and binding powers of the law.  Things were very, very different across the Channel.

2 thoughts on “Us and the US – Chapter 1

  1. Can I assume the comparisons are … Instructive/well drawn?? Your last distillation was a cracker but I think I have said that.

    >

    • Let’s see how we go. This is an Australian lawyer who knows the constitutional and legal history of England looking at how that history manifests itself in two very different sets of colonies. It is I think vital to get this basic framework in at the start – then we can see the differences unfold.

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