Month: February 2020

Here and there – Jude the Obscure

/ Geoffrey Gibson / Leave a comment

 

Jude Fawley is thoroughly decent.   He also wants to become learned and respected.  But he has doom written all over his face, and much more stridently than had either Romeo or Juliet.  He is at first seduced and then conned into marriage by Arabella Donn.  Arabella is anything but decent.  She is a tart who shoots through.  Jude then falls for his cousin, Sue Bridehead.  There are at least two problems – his marriage to Arabella, and the family relationship.  And Sue.  What is she about?  That is what the book is about.  Throughout my reading of this novel, a song my parents loved, I think sung by Eddie Cantor, kept on resurfacing.

If you knew Susie, like I know Susie,

Oh, Oh, what a gal!

There’s none so classy

As this fair lassie…..

You can see Thomas Hardy as the link between George Eliot and D H Lawrence.  There are also many times when this novel reads like Days of Our Lives.  And toward the end, a mordant slice of Wozzek hits you smack in the face from nowhere.  At times I wondered if the author’s mind was too fast for his pen.  The changes of tempi for the various star-crossed lovers can be very unsettling.  There are times, too, when you think that you may be watching a puppet show predestined by the coolest Calvinist.  Is Jude too innocent and vulnerable?  Is Arabella too predictably devious?  And will the mercurial Sue ever find peace?  And then there are times when the book just sounds alarmingly modern – and worlds way from Dickens

This is the start of Jude’s problems.

That night he went out alone, and walked in the dark self-communing. He knew well, too well, in the secret centre of his brain, that Arabella was not worth a great deal as a specimen of womankind. Yet, such being the custom of the rural districts among honourable young men who had drifted so far into intimacy with a woman as he unfortunately had done, he was ready to abide by what he had said, and take the consequences. For his own soothing he kept up a factitious belief in her. His idea of her was the thing of most consequence, not Arabella herself, he sometimes said laconically.

When Hardy spoke of Sue – and he should have known her – he referred to ‘the elusiveness of her curious double nature.’  She says she loves Jude but she has a hang-up about sex – or men generally.  Consequently, the two ‘lovers’ devote time and love to each other – without getting it off.  If Jude was bloody frustrated, so was I.  Sue was in mortal danger of being branded a teaser, but the strain on our credulity, or patience, can be severe.

You may often think that this was a book just written for Bette Davis – who made all those films that left you wondering why people wanted to torture themselves over ‘love’- with oodles of exclamation marks.

‘Yes… But Sue—my wife, as you are!’ he burst out; ‘my old reproach to you was, after all, a true one. You have never loved me as I love you—never—never! Yours is not a passionate heart—your heart does not burn in a flame! You are, upon the whole, a sort of fay, or sprite—not a woman!’

Jude has a philosophical disposition; in another life he may have been right into bondage.  And not many stonemasons can reel off Aeschylus.

‘Nothing can be done,’ he replied. ‘Things are as they are, and will be brought to their destined issue.’

She paused. ‘Yes! Who said that?’ she asked heavily.

‘It comes in the chorus of the Agamemnon. It has been in my mind continually since this happened.’

‘My poor Jude—how you’ve missed everything!—you more than I, for I did get you! To think you should know that by your unassisted reading, and yet be in poverty and despair!’

After such momentary diversions her grief would return in a wave.

(The ‘this’ is the Wozzek interlude.)

In the Preface, Hardy said that a German reviewer had said that the heroine – Sue Bridehead –

…..was the first delineation in fiction of the woman who was coming into notice in her thousands every year – the woman of the feminist movement – the slight, pale ‘bachelor’ girl – the intellectualized, emancipated bundle of nerves that modern conditions were producing, mainly in cities as yet; who does not recognise the necessity for most of her sex to follow marriage as a profession, and boast themselves as superior people because they are licensed to be loved on the premises.  (Emphasis added.)

The novel came out in 1894 – to uproar – but that absolute blinder of a line was written in 1912:….‘because they are licensed to be loved on the premises.’   That was when women were trying to come out – amid the blood and guts of a fearful partition.  And that I think is why the story of Sue Bridehead is so hard and chancy.  She was some sort of assault pioneer, and that sort of soldier takes heavy casualties.  Coming out, like breaking up, is hard to do.  Had a woman written this book, it may have been called Sue the Obscure.

For all its problems – especially for a bloke in this century – this book is an engrossing read.  And I have a soft spot for it for another reason.  It was the favourite book of the late John Arlott, a cricket commentator whose voice could be recognised instantly across the oceans, and who loved to get very deep with a bottle of red in his hand.

 

 

MY TOP SHELF – 50 – Beowulf

/ Geoffrey Gibson / 2 Comments

 

[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.]

BEOWULF

Seamus Heaney (translator)

Folio Society, 2010; bound in quarter burgundy buckram, with gold title and etching on cloth boards; gold trimmed pages; gold cloth slip case; illustrated by Becca Thorne.

So.  The Spear-Danes in days gone by

And the kings who ruled them had courage and greatness.

There is something about this poem Beowulf, which begins with the lines just quoted, that is at once mystical and elemental, misty but somehow internal.  It is as if we see ourselves but darkly, in some other plane.  It was composed in what we call Anglo-Saxon or Old English toward the end of the first millennium.  It was written in England about events in what are now called Denmark and Sweden.

Beowulf is a champion of the Geats.  He crosses the sea to help the Danes deal with a monster called Grendel.  He prevails, and then dies.  Like The Iliad, Beowulf ends with the funeral pyre of a hero.  If you like that kind of thing, you might see Beowulf as the missing link between The Iliad and Paradise Lost.

Great were the dangers to be overcome by Beowulf.

All were endangered; young and old

Were hunted down by that dark death-shadow

Who lurked and swooped in the long nights

On the misty moors; nobody knows

Where these reavers from hell roam on their errands.

So Grendel waged his lonely war,

Inflicting constant cruelties on the people,

Atrocious hurt.  He took over Heorot,

Haunted the glittering hall after dark

But the throne itself, the treasure seat,

He was kept from approaching; he was the Lord’s outcast.

These were hard times, heart-breaking….

Sometimes at pagan shrines they vowed

Offerings to idols, swore oaths

That the killer of souls may come to their aid

And save the people.  That was their way,

Their heathenish hope; deep in their hearts

They remembered hell.  (159-180)

It is hard to imagine someone better equipped to translate this great poem than the late Seamus Heaney, the distinguished Irish poet and scholar.

I came to translating Beowulf with a prejudice in favour of forthright delivery.  I remember the voice of the poem as being attractively direct, even though the diction was ornate and the narrative method at times oblique.  What I had always loved was a kind of foursquareness about the utterance, a feeling of living inside a constantly indicative mood, in the presence of an understanding that assumes you share an awareness of the perilous nature of life and are yet capable of seeing it steadily, and, when necessary, sternly.  There is an undeluded quality about the Beowulf poet’s sense of the world which gives his lines immense emotional credibility and allows him to make general observations about life which are far too grounded in experience and reticence to be called ‘moralising.’  These so-called ‘gnomic’ parts of the poem have the cadence and force of earned wisdom, and their combination of cogency and verity was again something that I could remember about the speech I heard as a youngster in the Scullion kitchen….The style of the poem is hospitable to the kind of formulaic phrases which are the stock-in-trade of oral bards, and yet it is marked too by the self-consciousness of an artist convinced that ‘we must labour to be beautiful.’

Here is some more of the remarkable poetry.

That great heart rested.  The hall towered,

Until the black raven with raucous glee

Announced heaven’s joy, and a hurry of brightness

Overran the shadows.  Warriors rose quickly

Impatient to be off; their own country

Was beckoning the nobles; and the bold voyager

Longed to be aboard his distant boat.  (1799-1807)

This is how Heaney saw the epic.

Grendel comes alive in the reader’s imagination as a kind of dog-breath in the dark, a fear of collision with some hard-boned and immensely strong android frame, a mixture of Caliban and hoplite.  And while his mother, too, has a definite brute-bearing about her, a creature of slouch and lunge on land if seal-swift in the water, she nevertheless retains a certain non-strangeness.  As antagonists of a hero being tested, Grendel and his mother possess an appropriate head-on strength.

The myth of the testing of the hero by a frightening instrument of evil is probably our favourite – right up to the movie Jaws.  But this epic is of interest to us also because it tells of the birth of our laws, in the replacement of the vendetta or blood-feud.

There was a feud one time, begun by your father.

With his own hands he had killed Heathaloaf

Who was a Wulfing; so war was looming

And his people in fear of it forced him to leave….

Finally I healed the feud by paying:

I shipped a treasure-trove to the Wulfings

And Ecgtheow acknowledged me with oaths of allegiance.  (459-473)

We might call this settling out of court.  It is not surprising that the scholar who trumpeted the claim of Beowulf to be taken as literature was named J R R Tolkien.

We learn that the object of the hero – as for Achilles – was to ‘gain enduring glory in a combat’ (1535/6).  It is right, then, that the poem ends with these lines.

They extolled his heroic nature and exploits

And gave thanks for his greatness; which was the proper thing

For a man should praise a prince whom he holds dear

And cherish his memory when that moment comes

When he has to be convoyed from his bodily home.

So the Geat people, his hearth companions,

Sorrowed for the lord who had been laid low.

They said that of all the kings upon the earth

He was the man most gracious and fair-minded,

Kindest to his people and keenest to win fame.  (3173-3182)

You do not need to crave immortality to see how the poet there speaks to all of us.  Heaney speaks of his ‘fondness for the melancholy and fortitude that characterised the poetry.’   He said that this poem has a ‘mythic potency’ that ‘arrives from somewhere beyond the known bourne of our experience, and having fulfilled its purpose…it passes once more into the beyond.’  Exactly – and is it not for this that we go to great writers?

 

 

Passing Bull 228 –Bull about paying the price

/ Geoffrey Gibson / Leave a comment

 

We don’t like paying tax but we don’t like bad roads or long waits to get into hospital or insufficient protection from the police.  It is the job of government to balance those impulses.  Most of the time, we get by, although some hiccups annoy us.  But for many reasons – including massive bribery – we can’t even get started sensibly on climate change.  Yes, people will lose money or jobs on restraining fossil fuel sources, but all the evidence is that the probabilities are that we will all be a lot worse off- especially those coming after us – unless we bite the bullet.  Most of Europe – including England – know this and are reacting.  But not us or the U S.  We cannot afford to pay the price. Indeed we elected a government that had expressly promised not to pay the price.  But balancing these contrary impulses is the first function of government.  No wonder our children and grand-children are in despair.

And the failure looks to be a failure of democracy.  MP’s from coal areas have far too much influence.  Some say the same about Christianity and abortion and assisted dying.

These failings came home to me reading about the abolition of the slave trade in England.  There was a massive cost to the English economy, and that was the basis of the opposition.  The parallel seems apposite.  But the English, driven by Evangelicals and Quakers, went ahead and prevailed.  Why?   Because that was the right thing to do.

We do look to be going backwards, and the backlash from those coming after us will be ferocious.

Bloopers

The low level of harm and the apology made by the Minister… to the Mayor…., along with the significant level of resources required to investigate were also factored in the decision [of the AFP not to investigate] not to pursue this matter.

AFR, 7 February 2020.

You know you are going bad when the rozzers say that there is only ‘a low level of harm’ when one politician alters a document to smear another politician.

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

/ Geoffrey Gibson / 6 Comments

 

 

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

/ Geoffrey Gibson / Leave a comment

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

/ Geoffrey Gibson / Leave a comment

 

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?

/ Geoffrey Gibson / 2 Comments

 

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

/ Geoffrey Gibson / Leave a comment

 

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

/ Geoffrey Gibson / Leave a comment

 

[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

/ Geoffrey Gibson / Leave a comment

 

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.