In the leafy months of June and July (1793), several French Departments germinate a set of paper-leaves, named Proclamations, Resolutions, Journals, or Diurnals, ‘of the Union for Resistance to Oppression.’  In particular, the town of Caen, in Calvados, sees its paper-leaf of Bulletin de Caen suddenly bud, suddenly establish itself as Newspaper there; under the Editorship of Girondin National Representatives!  (The Girondins were opposed to the regime and marked for extinction by Robespierre.)

That is how Carlyle begins his chapter on Charlotte Corday, the murderer of Marat, that grubby little idol of the masses and cheer-leader in the Terror.  There it all is – quirky, doom-laden, prophetic, arresting, and BYO grammar and vocabulary.  Nothing else even comes close.

Dickens idolised the author of The French Revolution.  He was like a disciple.  Carlyle was to 19^th century England what Dr Johnson was to the 18^th.  Some recalled Dickens ‘playing around the old lion’ as Garrick did around Johnson.  Disraeli, himself a novelist, recommended Carlyle to his queen for the highest distinction for merit at her command, saying that Carlyle and Tennyson stood out in ‘uncontested superiority.’

She is of stately Norman figure; in her twenty-fifth year; of beautiful still countenance: her name is Charlotte Corday, heretofore styled D’Armans, while Nobility still was….  ‘She was a Republican before the Revolution, and never wanted energy.’  A completeness, a decision is in this fair female Figure: ‘by energy she means the spirit that will prompt one to sacrifice himself for his country.’  What if she, this fair young Charlotte, had emerged from her secluded stillness, suddenly like a Star; cruel-lovely, with half-angelic, half-daemonic splendour; to gleam for a moment, and in a moment be extinguished: to be held in memory, so bright-complete was she, through long centuries!

Carlyle savaged the middle class.  In the Britain of Queen Victoria, glutted on the gold of Empire, that course was fraught.  But Carlyle had concluded that it was middle class civilisation itself, and not its corrupt institutions, that was the source of real evil.  And nothing he saw over the Channel of the bourgeoisie would have softened that opinion.  They would be descried by Balzac, Flaubert and Proust at times after a fashion that we see in Dickens.  In his fine book, Carlyle and Dickens (1972), Michael Goldberg cites a note in the Saturday Review that said that Dickens had a mission, but that it was to make the world grin and ‘not to recreate and rehabilitate society.’ 

But the increasing impact of Carlyle on Dickens showed up in increasing social criticism from Dombey and Son onward.  You get sustained disquiet with the community at large in place of sporadic commentary upon particular social lesions.  Dombey is, like Père Goriot, a firestorm about Mammonism, a pet loathing of the stern Scot, Carlyle.  Mr Goldberg says:

The tyrants of his last novels are less and less to be found in the thieves’ kitchens of the underworld or in the elegant drawing rooms of the aristocracy.  They are commercial nabobs like Dombey, financiers like Merdle, industrial barons like Bounderby, utilitarian lawgivers like Gradgrind, monetary barbarians like Podsnap, and noveau riche opportunists like Veneering.  As the portrait of a class they embody the idea, as Shaw put it, that ‘it is not our criminals but our magnates that are robbing and murdering us.’

That does all sound modern – if not radical.

On Wednesday morning, the thronged Palais de Justice and Revolutionary Tribunal can see her face; beautiful and calm…A strange murmur ran through the Hall, at the sight of her: you could not say of what character …  ‘All these details are needless…it is I that killed Marat…I killed one man,’ added she, raising her voice extremely (extrêmement) as they went on with their questions, ‘I killed one man to save a hundred thousand; a villain to save innocent; a savage wild beast to give repose to my country’…. There is therefore nothing to be said.  The public gazes astonished: the hasty limmers sketch her features, Charlotte not disapproving….The Doom is death as a murderess…To the Priest they send her she gives thanks; but needs not any shriving, any ghostly or other aid from him.

Faced with a script like that, a novelist may have quailed about writing a story about those times.  Dickens did write one – to our singular betterment. His novel owes so much to Carlyle.  Probably in jest, he said he had read Carlyle’s account nine times.  He read all about the revolution and then threw his notes away and wrote.  The Gordon Riots in Barnaby Rudge were madness – a favourite notion of Carlyle – and nothing more.  Now he was looking at the product of intolerable oppression.  The aristocracy thought Figaro was funny.  They did not die laughing.  Carlyle and Dickens were both lethal on the aristocracy but ambiguous about the third estate. 

Carlyle had said that ‘old secrets come to view; and longburied Despair finds voice.’  There was a thread for Dickens’ plot.  Dickens had the Marquis lamenting the loss of feudal privilege.  ‘Our not remote ancestors held the right of life and death over the surrounding vulgar.  From this room, many such dogs have been taken out to be hanged.’  He also wrote that ‘the leprosy of unreality disfigured every face in attendance upon Monseigneur.’  The Tribunal became ‘a jury of dogs empannelled to try the deer.’  All that is Carlyle to the bootstraps – and it underwrote the savage cannibalism of the Terror.  Of Marat, Carlyle said: ‘All dogs have their day; even rabid dogs.’

Thousands of books have been written about the French Revolution.  It is a fair bet that only one mentions Adam Lux.

…..the fatal cart issues; seated on it a fair young creature, sheeted in a red smock of Murderess; so beautiful, serene, so full of life; journeying towards death, – alone amid the world.  Many take off their hats, saluting reverently; for what heart but must be touched?  Others growl and howl.  Adam Lux of Mentz declares that she is greater than Brutus; that it were beautiful to die with her; the head of this young man seems turned.  At the Place de la Révolution, the countenance of Charlotte wears the same still smile.

Poor Adam was dotty about Charlotte.  It was raining and we infer that the figure of Charlotte became more deeply impressed on young Adam as a result.  But this was not the time to show sympathy for an enemy of the people.

Adam Lux goes home, half-delirious; to pour forth his Apotheosis of her, in paper and in print; to propose that she have a statue with this inscription, Greater than Brutus.  Friends represent his danger; Lux is reckless; thinks it were beautiful to die with her.

And he does – ‘with great joy’ – for a crime that Stalin would borrow from the French.

A Tale of Two Cities is still right up there and will be while English is still spoken.  Carlyle is well out of fashion, largely because his worship of heroes stirs bad chords.  The Revolution is very short on heroes.  What about the angelic-daemonic Charlotte Corday – the absolute hero of Adam Lux? 

Can an assassin be a hero?  Well, the revolutionaries thought Brutus was a hero.  Dante put Brutus in the same level of Hell as Judas.  We idolise Dietrich Bonhoeffer – but he was part of the plot to kill Hitler.  God only knows what the answer may be. 

But we do think that Charlotte Corday would have been happy to quit this world with the last words on her lips of Sydney Carton.  Each of those figures stands for our humanity.

Extracts from Volume II of My Top Shelf

THREE PLAYS

David Williamson, 1974

Currency Press, 1974; rebound in quarter green leather with marbled cloth boars and title ‘STORK’ in gold on orange leather label on spine.

Twice in my life I have walked out of a cinema in tears for the same reason.  Once was in 1997 after watching The Castle.  The other time was nearly forty years before that after watching the film Stork.  I ran into a mate who asked what was going on.  ‘I have just seen some bastard put this bloody country on the screen.’  Each occasion was a revelation – and a comforting one.

The first film was an adaptation of the play The Coming of Stork by David Williamson.  The seventies saw an explosion of Australian theatre as the nation began to throw off what it called its ‘cultural cringe.’  It was no coincidence that this happened when the nation also sought under Gough Whitlam to get past the dead hand of a defeatist political mediocrity and subservience that took us into the horror of the Vietnam War.  The young playwright, David Williamson, was perfectly placed to express what educated people called the zeitgeist of that time in Australia.  He was also perfectly placed to comment on the milieu that happened to present most of his audience.  The three plays in this book – The Coming of Stork, Jugglers Three, and What if You Died Tomorrow – were a central part of something resembling a birth.

David Williamson was born in 1942, the son of a bank officer.  He took most of his schooling in Bairnsdale in western Victoria, and graduated in mechanical engineering at Monash University, Victoria’s second university.  The Coming of Stork was his first full length play.

In the Preface to this book, the author says:

The Coming of Stork is played out among graduate technologists, a group known for brazen and rather awkward openness as far as sexual matters are concerned, but an almost complete lack of communication concerning ambitions, fears, hopes, and joys.  It is a cynical milieu, but not without a certain reductive biting humour and heavily disguised compassion…..In these plays, content is more important than style.  There are no mechanical theatrical devices….My writing career was greatly helped by the unrelenting and faultlessly naturalistic production given to The Coming of Stork at La Mama, which reproduced the atmosphere of flat sharing males with gripping authenticity and held audiences engrossed despite glaring weaknesses in that rough first draft.  The occasions when I have been most disappointed with productions of my plays have been when the playing style has degenerated into the farcical.  They all demand a meticulously naturalistic acting style if the audience are to retain their involvement.

Stork, the film, featured Bruce Spence as Stork and Jacqui Weaver as the promiscuous but sumptuous Anna.  There are also Clyde and West who are at a loss what to do in life, but who meet favour with Anna, and Tony, who is both bourgeois and on the make.  Stork is tall, ungainly, accident prone and as man to be someone imprisoned in his own youth.  He refuses to grow up.  Like Falstaff, it is his failings that make him so engaging.  Stork in my view is one of the great constructs of the Australian stage.  Here is a sample.

Stork: Did you fake it!

Anna: No.  Of course not.

Stork: Then what are you talking about?

Anna: I never, er, have much, er, trouble.

Stork: Never have much trouble?

Anna: It’s pretty, er,  easy for me to, er, respond.

Stork: So it was nothing to do with the feeling between us?

Anna: Of course it was.

Stork: And nothing to do with my virility?

Anna: Of course it was.

Stork: Pretty easy.

Anna: I must be wired up the right way.

Stork: Charming.

Anna: Clyde’s very clever, but what I’m saying is that it really doesn’t make any difference.

Stork: What d’ you mean, very clever?

Anna: At, er, sustaining himself, but sometimes I’d rather just have one orgasm than a string of them.

Stork: A string of them?

Anna: Clyde’s, er, quite good at, er, sustaining himself.

Stork: I didn’t realise I was up against such talented opposition.

Anna: I’d like our relationship to continue, Stork.

Stork: You’ve dealt a death blow to my masculinity, Anna.  It may never rise again.

Anna: I’m terribly fond of you, Stork.  The trouble is that I’m terribly fond of Clive and my, er, other friend too.

Stork: (sarcastically): Clyde and your other friend and me.  What about Westy?

Anna: (alarmed): Who told you about Westy?

Well, there you have aftermath of the sixties and the flower power crowd.  That side of university life was not revealed to me. 

This play is nearly fifty years old.  Either because of changes in customs and manners, or because this was the author’s first play, a lot of it looks gauche, if not vulgar now, and some parts may need to be adjusted for modern audiences.  But, the capacity of the play to show us as we are still holds.  And that is what I understand the fundamental role of the playwright to be to carry out.

Not many Americans respect intellect.  Hardly any show anything like the respect for intellect that we see in France and Germany.  Disrespect for intellectuals becomes downright distaste for experts.  These forces exploded under Trump.  He gloried in his own obtuseness and he did not hesitate to treat as idiots people who attended those absurd rallies.  The essayist Emerson saw all this a long time ago.  ‘Let us honestly state the facts.  Our America has a bad name for superficialness.  Great men, great nations, have not been boasters and buffoons, but perceivers of the terror of life, and have manned themselves to face it.’  What, then, would Emerson have said of the greatest booster and buffoon of them all?

Well before Emerson, de Tocqueville had commented on the touchiness of the Americans.

But I maintain that the most powerful, and perhaps the only means of interesting men in the welfare of their country, which we still possess, is to make them partakers in the Government…….in America the people regard this prosperity as the result of its own exertions; the citizen looks upon the fortune of the public as his private interest, and he co-operates in its success, not so much from a sense of pride or duty, as from, what I shall venture to term, cupidity.

As the American participates in all that is done in his country, he thinks himself obliged to defend whatever may be censured; for it is not only his country which is attacked upon these occasions, but it is himself.  Nothing is more embarrassing in the ordinary intercourse of life than this irritable patriotism of the Americans.

As I remarked elsewhere:

There is something close to the heart of America here.  The upside is ambition, drive, and personal and communal responsibility; the downside is Salem, McCarthy, and Gordon Gekko.  In some sense, the feeling of communal responsibility and participation does seem to rest well with American patriotism; so does their prickliness if you happen to query in passing something close to American hearts.  The Americans tend to be more committed and involved in America.  The film The Godfather begins with a product of Italian immigration saying ‘I believe in America.’  Australians are not so serious about all this kind of thing, and open discussion, much less profession, is not encouraged.  If they see it in Americans, they might mumble something about people wearing their hearts on their sleeve.

You wonder at times if they will ever grow up.

Bloopers

The US does not need a rerun of the Obama years.

The Australian, 25 January, 2021

There in one sentence is the accumulated venom of Rupert Murdoch.  That is outstanding.  America does not need a re-run of the years in which the ruined US economy was repaired, the disastrous engagement in Iraq was ended, a sane healthcare scheme was introduced and a clever, decent, worldly, stable, rational and entirely honourable man served as President.  They wish that we had four more years of a stupid, vain, bigoted, immoral, boastful, overgrown child as President.

The highpoint of the attack on the ABC as pleaded in the Statement of Claim is as follows.

The ABC and Milligan knew that Porter would be readily identifiable as the subject of the article and that he would ultimately be compelled to publicly respond.  They knew that the allegations by AB could never be proved in any civil or criminal proceeding and despite that they published the article to harm Porter and to ensure that he was publicly condemned and disgraced in the absence of any finding against him.  They were frustrated that they were unable to broadcast AB’s allegations in the November 4Corners as they intended (because they were indefensible) and thus disingenuously published the article without naming Porter in order to give effect to their intention to harm him.  Milligan engaged in a campaign against Porter in order to harm his reputation and have him removed as Attorney-General by her continued publications about him.  She has further continued to defame him in republishing assertions that AB should be believed and other allegations.  The ABC and Milligan published the article making serious allegations of criminal conduct about Porter without any warning to Porter and without any attempt to give him an opportunity to respond.  They selected portions of the dossier to quote in the article for the purpose of making AB’s allegations as credible as possible when there were other significant portions of the dossier which demonstrated that the allegations were not credible.  Milligan did not disclose her close friendship with a friend or friends of AB including persons named on the ABC.  Milligan acted with malice knowing of the impossibility of any finding of guilt or civil liability in the circumstances and believing that a public campaign designed to damage his reputation would be a more effective substitute against Porter in replacement of the process of the justice system.

The popular word for that process is lynching.  Another word is pogrom.  It is the sort of thing we associate with the grosser parts of the Murdoch press – as in their recent pogrom against the Premier of Victoria.

The allegations are made by counsel as good as you can get for this purpose, doubtless on the express instructions from the plaintiff, who happens to be the first Law Officer – and most probably with the knowledge of at least the Prime Minister.

It is curious that the press has not as far as I can see commented on this aspect of the case.  The word ‘libel’ then becomes a kind of coat-hanger for the real charge.  It is about as lethal a charge as you could make against a member of the press.  Against a commercial broadcaster, it could put its licence in play.  It is more deadly for the ABC because the attitude of the government to it is roughly equivalent to the attitude alleged against Louise Milligan to Porter.  It wants the ABC taken out.  It must think Christmas has come very early this year.

The pleading is unusual on two counts.  It is extremely well drawn.  And it is permissibly loaded with evidence because the plaintiff will rely on inferences to be drawn about states of mind from a chain of events.  Most direct allegations of events are on the record – there is no controversy.  There is more than enough to force the defendants into evidence.  (There may even be an application to split the case, but we can put that technicality to one side.  It’s about forty years since I did that.)  More importantly, discovery will produce truckloads of documents that will embarrass the ABC and Milligan – and sources – and urgers, like Malcolm Turnbull.  That embarrassment might drive the ABC to settle – especially if the embarrassment rises up the scale.

All litigation is a form of lottery that few can afford and none can predict.  That uncertainty is made worse here by politics at both ends.  But after fifty years of them, this is how I see libel actions in this country.  Australians treat the press like government.  They need it, but they don’t trust it.  They rely on both, but begrudge them their power.  If they – a jury or a judge – think that the press has behaved reasonably and that the plaintiff more or less deserved it, so be it.  But if they think that the press has gone in too hard, and that the plaintiff has not had a fair deal, they put the press down – with gusto and a very big bang.  I say that as a lawyer who I think still holds the record for copping the biggest libel verdict in the history of Victoria – while acting for the ABC – in a case that we thought we would win.

That is not a happy outlook for Aunty or Louise.

Experienced trial lawyers will have at least two problems with the suggestion that there should be a judicial inquiry into the fitness of the Commonwealth Attorney-General to hold office.

First, even if the complainant were alive and willing to proceed to a trial before a jury, it is extremely unlikely that any police officer would forward the brief to a prosecutor to consider whether a prosecution could proceed based on the reported admissible evidence available.  The reported evidence of the complainant’s mental condition – which apparently led to her being dissociated from reality – would clearly be a factor that all involved in the process of considering any prosecution would need to take into account.  That being so, we need not consider whether a magistrate could, or would have committed an accused to stand trial, whether a jury properly instructed as to the law and admissible evidence could convict, and whether such a verdict could stand on appeal.  (In the case of George Pell, the prosecution cleared every hurdle except the last.)

Secondly, while the fitness for office of a director of a public company may be the subject of judicial findings premised on legal criteria, the fitness for office of the Attorney-General is not.  That issue is political, not legal.  It is resolved politically, not legally.  The relevant process is an election, not a judicial inquiry.  The opinion on this issue of another lawyer is worth no more than mine, or that of my cleaning lady or oncology nurse.

It follows in my view that there is no sensible subject for a judicial inquiry.  There is nothing novel about a person in high office being the subject of unresolved issues of rape.  It is the case with one cardinal of the Roman Catholic Church and two justices of the American Supreme Court.

Let me tell you how as a trial lawyer for over fifty years I come to those conclusions.

I am appalled at the level of ignorance of how an inquiry into Mr Porter might proceed – and into what.  I did a very tricky inquiry about thirty years ago that was politically fraught, and for thirty years I presided on a sessional basis over tribunals where the issues tended to be at large.  I am a common lawyer who practised in equity and who has a visceral distrust of the inquisitorial system espoused in Europe – and by any repressive government.

It is a disgusting feeling when as the judicial officer, you have trouble framing the question.  It is like driving on black ice.  In the Fire Brigade disciplinary tribunal, I was dealing with charges framed by lawyers under a statute – too cautious, and lawyerly, but something to hang on to.  In eighteen years hearing tax cases, I was dealing with the decision of a revenue officer to disallow an objection by the taxpayer.  Both could use brutally broad language that would not be allowed in a decently run court of pleading – the whole object of which was to reach an issue of fact for the jury or demurrer for the court.  Even in a case where Jim Merralls QC instructed by Mallesons with David Batt for AMP – on a scheme that looked headed for the High Court – I had to ask counsel for the Crown: ‘Mr Boaden – do you think at some time you might make some passing reference to the terms of the notice of disallowance that you have been sent here to defend – just for old times’ sake?’

I repeat – being left at large in some form of inquisition is anathema to me as a common lawyer.

In the gaming inquiry that I conducted, the issue was whether a U S entity was a fit person to hold a gaming licence in Victoria.  There were statutory criteria, and there was undisputed evidence that the applicant had lied on the record to a U S regulator, but I still had to summon up every day of my twenty one years on the job to crystallize an issue that could allow us to decide the case.  Otherwise, the ocean of litigation could have gone on for years. 

In the end, we were able to ground our decision in plain terms with no reference to legal authority at all.

On the evidence before us, we have come to the conclusion that VLC should not be on the Roll.  In our opinion, the findings of two associations between Mr Lippon and people who have been convicted of criminal offences, and the two acts of dishonesty on his part, are founded on matters of fact that are not substantially in issue.  The implications of those findings and the conduct of VLC in the course of the inquiry are such as to demonstrate that VLC does not meet the requirements of honesty, integrity, and repute which the Act contemplates for those who are to be placed on the Roll.

For our part, we do not think this conclusion requires or will benefit from sustained analysis.  There can be no scale of the relevant considerations such that the issue of satisfaction of the statutory requirements can be the subject of measurement.  In our opinion, the Act contemplates, and this Commission should impose, high standards on those who want to take part in the provision of gaming facilities.  This is because the Victorian people are being asked to take these people on faith.  If we may adopt a phrase used by a distinguished commentator upon American affairs, it is no part of the function of this Commission to start to play with the faith of the Victorian people.  We think that the Victorian people are entitled to expect more, and that the Victorian Parliament has required more, than VLC can offer.

Politicians say that you should not start an inquiry unless you know the answer.  Another reason for having an inquiry is that the issue is such that you must have an answer.  This case is not one of either of those.  People calling for an inquiry acknowledge that there is a significant prospect it will not be able to make a conclusive finding on the allegations of rape.  That incapacity is inevitable.  Where does the inquirer go from there? 

What is certain is that we would get a full rehearsal of the allegations that will appal the family of the dead accuser, sicken the community, and leave the wounded accused maimed for life.  And for what?

The one inescapable problem is that the accused will not be faced by his accuser. The Sixth Amendment to the U S Constitution states that ‘in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.’  That merely states a long standing principle of the common law.  ‘Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial’ (Lee v R (1998) 19 CLR 94). 

We should be very worried if you or I can be deprived of that fundamental human right merely because the proceeding is said to be an administrative inquiry rather than a judicial determination – when as a result your or my life might be ruined in equal measure by either process.

The truth as it seems to me is that the absence of the accused does not just make any inquiry unfair to Mr Porter – it makes any inquiry simply pointless.  Indeed, of those few who are competent to deal with such an exercise, I wonder who would want the job or take it.

I cannot believe that all those pursuing Mr Porter for political reasons are ignorant of all these problems.  The unfairness hits you full in the face.  I do not like Mr Porter; I positively dislike the Prime Minister; I have no time or respect for either the Liberal Party or the Labor Party; but there was a time when I thought that the ALP would stand up for basic legal or human rights.  That time has apparently passed and those involved should be deeply ashamed of themselves.

I may have added that if it is said that it is undesirable to have an Attorney-General the subject of an unresolved allegation of rape, Mr Porter will find himself in select company – one Cardinal and two Justices of the United States Supreme Court.

Have you noticed a vogue among cricket commentators?  When a batsman – please, God, never a batter – gets out, we sometimes get told that in the opinion of the commentator, the problem is one of ‘execution.’  This apparently means that the fault lay in the manner in which the player sought to play the shot – ‘execute’ it – rather than in choosing the kind of shot to be played.  I wonder about that.  Can we break down the component parts of action sports in that manner?  And if we can, why do we not hear it done in say golf, tennis and football?  Sometimes these verbal fads lead to assaults on language.

Bloopers

An inquiry by a respected former judge or panel of independent experts, looking at the ‘balance of probabilities’ in this case may not be the perfect answer, but it may be the only viable option left available to deliver some closure in this unusual case.

David Speers, ABC, 4 March, 2021

Whatever might be the subject of any inquiry, it is extremely unlikely that the test would be the balance of probabilities.  Even in a civil claim for damages for rape, the standard of proof would be so much higher.