An essay in nine easy tablets

Some years ago, I wrote a book called ‘The Common Law, A History’.  I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law.  That in my view is worse than sad.  This essay is not a précis of that book.  It is an introduction written for the general reader.  People at large should have an interest in the history that underlies and underwrites our way of life.  It also represents the bare minimum of what law students should be taught.  The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy.  I will publish the essay by nine consecutive posts on this website.  I hope you get some of the enjoyment in reading it that I got in writing it.

7

The constitution is fixed

The barons had left the doctrine of Divine Right as a fiction at Runnymede, and Henry VIII had brought the church inside the government.  But the first of the Stuarts, James I, taught his son the old fable that the king reigned supreme – subject only to God.  That was a mistake, but it led to a series of events that established the basis of the English constitution – the supremacy of parliament, or, as the French might prefer, the people.  England saw a regicide, civil war, a deposition (which of course the English denied), and Dutch troops patrolling the streets of London – after an invasion that was nearly bloodless because the English had asked for it.  So, if you have to spill blood to found a nation, the English had done so.

It was as if Charles I had a kind of death wish.  You can see it in the genius of Alec Guinness in the film Cromwell.  His mortal stubbornness led him to error after error.  He may never have recovered from the time he went in person to parliament to arrest his principal opponents – while his bravoes cocked their pistols and uttered dark threats outside.  In the name of God, man, you just don’t do things like that.  It was like a regal preview of the recent assault on the Capitol in Washington. 

But Charles was killed because having started a war and lost it, he could not be trusted – and he was too powerful to be left alive. In that, he resembles his favourite, the Earl of Strafford – although in and of himself, Strafford was a far more imposing man.  His defence showed just how potent he was.  England had ducked a bullet.

So, there was a kind of dictatorship under Cromwell, but the people got restive when the Puritans started shutting down pubs.  The English were not ready for a republic, and they coolly called the Stuarts back in the form of Charles II.  And after the regicides had been dealt with, things went quickly back to where they had been.  The agonies of twenty years were just parked in another room.

Charles II was amiable enough.  He could spend his time siring bastards, a past-time recently revived by a ruler of England (although the Stuarts were hardly into BYO booze parties), but even he could not be trusted.  He did a deal with the French called the Treaty of Dover.  But there was a secret side deal.  In return for French money, the king would convert to Rome.  This was within one lifetime of the defeat of the Armada and Guy Fawkes.  Can you think of a ranker act by any ruler anywhere?  The Catholic – Protestant divide is dead as a dodo now, but back then it festered as a cancer that threatened human life.

James II came to the throne on notice that his Catholicism was a real problem.  The Commons had sought to bar him more than once.  He had a text book case of conflict of interests.  He was bound to protect the English church of which he was the head.  But the church of which he was a member taught that only those of that faith had the warranty of eternal life (and the keeper of the keys resided in Rome). 

Well, James set about resolving that issue in a way that was almost manic.  He pressed every button he could to arouse a Tory squire, an Anglican bishop, an Oxford graduate, or a gentleman of the City.  The better people got together and asked William of Orange to come over with a Dutch army.  James gave up – he threw his Seal into the Thames, and fled to France.

William then had to negotiate the terms of his engagement with his new subjects and his wife (a daughter of the sometime king).  He got more and more frustrated.  He had been sold a pup.  The English were dreadfully hard to deal with.  In commenting on the House that succeeded the Stuarts, Sir Jack Plumb said that the Hanoverians came to England with real trepidation.  Their future subjects were widely reputed in Europe to be ‘shifty,’ and most of the aristocracy had ‘dabbled in treason.’  Plumb was spot on.

A young barrister named Somers, who was obviously super bright, was briefed to draw up the terms of settlement.  It is a thing of beauty that would be called the Bill of Rights.  Then the home team put on a most elaborate form of ceremony that resembled a very high-end wedding.  ‘Your Majesties promise to do this, and we the people promise to do that….’ 

This took place under the Reubens painting in the Banqueting Hall.  That was a nice touch.  That was the room through which Charles I had walked through on his way to the block.  Someone would remark that James II took off after touching that crick in the neck at the top of his spine.  Perhaps someone showed him the shed where they kept the axe.

The Bill of Rights is now the foundation of the constitution.  Article 4 restates the law in the Petition of Right that only the parliament can raise revenue.  The executive cannot levy taxes.  That part of the English constitution has not been seriously threatened or questioned since.  It is the constitutional predicate of the supremacy of parliament, since they who control the money control the power. 

There are, of course, provisions dealing with the dispensing and suspending powers, the treatment of the bishops, irregular courts, and fixing juries.  Excessive bail and cruel and unusual punishments were outlawed.  There would be no more mutilation or putting people in the stocks, or other ‘feudal’ reprisals, or any unlimited imprisonment.  You see all these in the U S Amendments to their constitution.

More importantly, the privileges of parliament were locked in: ‘The freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament’.  The king’s writs do not run to what is said in parliament.  Nor do any arrest powers of the king.  This is fundamental and indispensable to a parliamentary democracy.  And it would be unthinkable in any dictatorship.

What did the English do about enforcing this arrangement?  The people had the right to bear arms – at least those who were Protestant.  The king needed express permission from parliament to have a standing army – something left anathema by Strafford and Cromwell.  ‘We can be armed but you can’t.  Guess who wins if we fall out.’ 

We have been focussing on central government.  Most people never got any closer than the local justice of the peace.  In truth, the gentry and the militia governed England back then.  The government at the top gathered in 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.’   We might blush at the notion ‘right of rebellion’, which has a Gallic air to it, but it was a fact of life established over 600 years that if the crown behaved badly enough, the reaction might be terminal, if not lethal.  (Plumb may have had in mind the concept of the common law that the aggrieved party to a contract has the right to accept the conduct of a guilty party as the repudiation of a contract, so bringing it to an end.) 

And that we were told was so under the old feudal compact – if the lord broke his word, the vassal was discharged from his obligation of loyalty.  Well, that at least is what the law said.

Plumb had also said that: ‘…the power of the 17^th century gentry was sanctioned by violence’ and that ‘by 1688, violence in politics was an Englishman’s birth-right’.  And that, too, was from the ‘mouth of England’.

By and large, the English are polite, at least at the top.  But when it comes to who runs the place, they can turn very cold.  Lord Denning was a brilliant lawyer, a decisive judge, and a peaceable Anglican.  But when it came to freedom under the English crown, we see bare steel. ‘Concede, if you wish, that, as an ideology, communism has much to be said for it: nevertheless, the danger in a totalitarian system is that those in control of the State will, sooner or later, come to identify their own interests, or the interests of their own party, with those of the State: and when that happens the freedom of the individual has to give way to the interests of the persons in power.  We have had all that out time and again in our long history: and we know the answer.  It is that the executive government must never be allowed more power than is absolutely necessary.  They must always be made subject to the law; and there must be judges in the land who are ‘no respecters of persons and stand between the subject and any encroachment on his liberty by the executive.’  We taught the kings that from Runnymede to the scaffold at Whitehall: and we have not had any serious trouble about it since.’

And so, with their constitution in place, the English could settle in for a century of somnolent corruption, while losing one empire and starting another – including a most unpromising slammer in Botany Bay.  All by accident – of course.

History – law and constitution – Stuarts – rule of law.

Extracts from Volume II of My Top Shelf

LECTURES ON FOREIGN HISTORY 1494 – 1789

(J M Thompson, Blackwell, 2^nd Ed, 1944)

The author wrote extensively on the French Revolution.  I have read and enjoyed everything he wrote on that period.  A tutor at Cambridge understood my respect.  He said that the author wrote at a time when style mattered.

According to sources on the Web, James Matthew Thompson lived between 1878 and 1956.  His father was an Anglican priest.  He studied theology and philosophy at Oxford and was ordained in 1903.  In 1906 he became Dean of Divinity at Magdalen College, Oxford.  He challenged orthodoxy, and resigned as Dean in 1915.  After the war, he returned to teach history.  The lectures in the present book were delivered to first year students during the winter terms of 1921 to 1924.  The book of those lectures was first published in 1925.  It may lack the complete style of the later work on French history, but it is wonderfully assembled and crisp, and it fills in many holes in the historical knowledge of those who go straight from the Renaissance and Reformation to the French Revolution.

In the Preface, Thompson says that ‘the essence of history is not the learning of facts, but the judging of evidence.’  In the first chapter, he puts that another way.

You don’t study history to learn historical facts, but to acquire historical judgment.  It is not learning that makes a historian, but discernment.

Two pages later, we get: ‘Politically speaking, England in 1494 is already 400 years ahead of the rest of Europe’.  That proposition is not just English hubris.

Since the eleventh century it has been virtually one country under one king – a condition that France and Spain are only just reaching, and which Italy and Germany will not reach for another 400 years.  It has the only effective parliament in Europe, and the only limited monarchy which remains limited during the seventeenth and eighteenth centuries.  Its kings have suppressed the arbitrary power of the nobles without transferring it to the crown.  By losing their continental possessions, they have learnt the uselessness of foreign conquest.  England in 1494 is peaceful and orderly, and the richest country in northern Europe.

And that’s without mentioning Magna Carta, the common law, habeas corpus, the Inns of Court and the judiciary, or the fact that England would shortly repatriate its church – which would further distinguish itself from Europe, even the Protestant parts.

The cannons of the King of France were inscribed Ratio ultima Regum – ‘the final argument of kings.’

Anyone could learn to fire a gun, and one gunman was almost as good as another.  Armies grew bigger.  Disciplined masses took the place of erratic heroes.  The business of raising and arming troops passed from the feudal lord to the professional soldier, and from the professional soldier to the State.  Thus Europe entered on an era of national wars waged by national armies.  But it was not long before unpopular governments trembled before armed mobs.

‘Tremble’ was a verb much loved by the armed mobs of the French Revolution.

Here is Thompson on the ancien régime in France.

It was a case-made constitution.  And in France, in the absence of any effective Charter, or Parliament, or public opinion, it was the kings themselves who decided each case as it arose, and in the interests of absolutism…..The great ‘seigneurs’ are becoming an idle aristocracy…Their duties disappear, and their life becomes a daily round of privilege.  The army and the church are the only occupations still open to a gentleman.  Meanwhile, the rising middle class, unhampered by social traditions or family pride was used by the Crown as a weapon against the nobles, and a stepping-stone to absolute power.  Below the nobles, below the clergy, below the middle class, came the peasantry, the great bulk of the population, whose duty it was to do the work left undone by the privileged classes, and to pay the taxes from which they were exempt.  These poor people were already in a state of degradation which made the brilliancy of the Court a farce, and national prosperity an idle dream.

There you can see that it was not if France would explode, but when – because there you have a concise statement of the key strands leading to the detonation in 1789.

An Anglican divine may have something to say about the Reformation.

It is always a difficult question, how far it is proper to receive wages for religious work, or to exact payment in return for spiritual privileges.  But all conscientious men feel (and they felt the same in the sixteenth century) that it is wrong to make a profit out of religion.

What would the Mormons now say?

It was not merely the demand for books, or the interest in theology, which secured Luther his circulation; but also his style.  Michelet compared it to a mixture of Moses and Rabelais.  As those two authors never collaborated, I cannot tell whether it is a good comparison.  But that Luther’s style is vigorous, eloquent, wordy, and rather vulgar, you can judge for yourselves, even from an English translation.  It was a new way of treating theology, in the sixteenth century; and it made an immense appeal……Politically, Luther was a conservative, and stood for the rights of the German princes against their own subjects, as well as against the Pope.  The discontented knights of 1523, the rebellious peasantry of 1524, got no sympathy from him.  Unlike Calvinism, which became a disintegrating force in politics, Lutheranism played into the hands of government, and became a State religion…..Like John Wesley, Luther was never really a member of the sect called by his name…..The upshot of Luther’s teaching was to dethrone the Pope and enthrone the Bible.  Authority was not destroyed; it was only transferred.  Orthodoxy was not impaired; it was refounded on the Scriptures.

You might then wonder on the benefits of a marriage between Germany and Luther.

The lecture on the Netherlands Revolt from Spain is riveting.

Politically, the Revolt leaves all Europe in debt.  The success of the northern states gave ‘the right of citizenship to revolutionary principles.’  For the first time since the organisation of the New Monarchies, a whole people had claimed and won its independence…..the Netherlands Revolt was a striking instance of the political results of the Reformation.  It showed that Protestantism could give not only the desire for political freedom, but also the resolution to achieve it…..Only Holland in the Old World set the pattern of Protestant democracy which was to be copied on so big a scale in the New.  Had there been no United Provinces in the Netherlands, there might have been (but I almost hesitate to suggest it) no United States of America.

As to the Sun King, Louis XIV, French historians believe that in a single generation, six millions of people died of want.  The author quotes Acton:

It would be easy to find tyrants more violent, more malignant, more odious than Louis XIV; but there was not one who ever used his power to inflict greater suffering or greater wrong.

Louis XV?  ‘….he was one of the most evil men who ever occupied a throne.’

What is the upshot?

When we look at Europe in this way, and notice how in one country after another, national character and policy persist from the end of the fifteenth to the end of the eighteenth century, we cannot fail to be impressed by the strength of nationalism, and its claim to be the ruling principle of political science.  This is the first lesson of modern European history; and none is more necessary nowadays; for it explains the disaster of 1914 – the nemesis of nationalism; and it leaves no illusions as to the barrier of habit and tradition that must be broken down before any international system, such as the League of Nations, can take the place of the Balance of Power.

Those remarks were indeed prophetic in 1924.  The worst of nationalism was yet to come.  It is crude nationalism that now undermines the United States and is undoing the European experiment.  This book is a must for those who want to try to understand where we have come from and where we may be going.  And it’s worth getting for the Michelet quote on its own.

Someone remarked once that academic disputes are so toxic because the stakes are so small.  They may have added that they often arise because people have too much time on their hands.  There is a dispute in the University of Queensland.  It is tailor made for those readers of the press that feast on the reaction of Rupert Murdoch to this kind of thing. 

A student complained about a critique of his work.  Somehow, he managed to bring in the teaching of Nietzsche in Israel.  Well, there go two red lights.  The primary recipient, who is Jewish, took offence.  People lawyered up, as the saying goes, and a federal agency that the Murdoch people love to hate got involved.  There is even talk of a possible application to the Federal Court. 

The agitated academic says that the student’s complaint was ‘anti-Semitic’.  There is another red light – that charge is one of infinite width, depth or breadth, and it is very often abused.  Its generality often bespeaks desperation – like an allegation of ‘conspiracy’ – in civil or criminal proceedings. 

The university was not moved.  The academic says that its response was ‘inappropriate.’  There is another red light.  That is the weasel term that sent the Rush libel action clean off the rails.  But the parties now await some form of government intervention.  All, it seems, on my pay-roll.

Three things occur to me.

First, it is hard, to put it softly, to imagine this kind of eruption at a body that is well managed and where people have to work for a living – like BHP or Westfarmers – or the law firm acting for the academic.  If the agitator remained agitated, he might be politely asked if he might be happier grazing in another paddock.  As it is, this public brawling will do nothing to enhance the employability of the aggrieved – nothing – whatever the result.

Secondly, with the best will in the world, I cannot see anti-Semitism in anything in the report I have seen.  That may be because I am so sceptical about that kind of charge for the reasons that I have given.

Thirdly, the report I have quotes the lawyer for the aggrieved as follows:

Considering the atrocities and the sheer horror of what Jewish people have had to suffer in the past 100 years, it is astonishing to think that a university would think it is fine to make a Jewish person deal with an anti-Semitic complaint.

I suspect that this opinion is common, but you rarely see it articulated – with or without the time limitation.  The opinion is that because of the history of an ethnic group, it, and every member of it, should be treated differently.

And that is the original sin that gave rise to the whole bloody problem.

Labels – anti-Semitism – Israel.

A colleague referred me to a decided case in Chancery on the point of mixing politics and trusts in England – Cowan v Scargill [1985] I Ch 270.

 Back then, the English coal industry was desperate to save itself – as is the Australian coal industry now.  But English coal miners were led by a frightful firebrand named Arthur Scargill – who turned out to be as crooked as Norm Gallagher, and who was a one-man raison d’être for Mrs Thatcher.  

The coalminers had a pension scheme set by the National Coal Board.  The union was represented on the managing trustee.  The union wanted the investment policy of the trust to reflect the overwhelming wish of the union and members of the fund to save the coal industry.  They wanted to stay out of oil and gas.  (Sound familiar?)  Scargill was stupid and egotistical enough to appear in person in Chancery.  That did not help the judge, Sir Robert Megarry, VC.  The court was dead against the trustees acting for union motives that conflicted with their investment duties.  It ruled that they were wrong to put union policy directives above their duty to act in the best financial interests of the trust members generally.

That would not have surprised lawyers, but it looks to bear directly on the issues raised in the previous note.  Except that here the trustees are not just being pushed in one direction – that looks prima facie to place them is a position of conflict between duties and interests – they are being told by a government regulator – the kind of outfit that attracts the term ‘tame’ – that it will act like Lord Nelson if the trustees at least try to look decent.

That would not go down so well in court.

Two things.  The argument took nine days.  The judge said Mr Scargill had put the case with ‘courtesy and competence’ – but judges hate having to sort out the arguments of litigants in person.  The judge gave judgment eight days after the hearing concluded.  It covered twenty pages.  You can pick your own multiplier for what might unfold now.

And it is curious that the role of Arthur Scargill is now played by Rupert Murdoch, Barnaby Joyce, and ‘conservative’ think tanks.  Arthur was hardly their pin-up boy.  Which is sad.  They would have deserved each other.  And they would have escaped the curse of our children and grandchildren.

Companies – directors improper purposes – politics at the board level.

An essay in nine easy tablets

Some years ago, I wrote a book called ‘The Common Law, A History’.  I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law.  That in my view is worse than sad.  This essay is not a précis of that book.  It is an introduction written for the general reader.  People at large should have an interest in the history that underlies and underwrites our way of life.  It also represents the bare minimum of what law students should be taught.  The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy.  I will publish the essay by nine consecutive posts on this website.  I hope you get some of the enjoyment in reading it that I got in writing it.

6 Politics as a profession

In some circles nowadays, the word ‘activist’ is uttered with disdain – especially by those haunted by the ‘green left’, whatever that means.  It is hard to know why.  If you hold political views, why should you not get active to advance them?

The people of England were apt to involve themselves in politics at all levels.  They have seen many activists.  Religious groups like Puritans and Methodists could get very political.  The Puritans led the way in the New World, where for better or worse, they would have the numbers.  The Quakers, to their eternal credit, would run a masterly PR campaign to end the slave trade in England.  But the primal activists would become the lawyers, who would in time become a more powerful caste in England than any priesthood had been – even including the Druids.

The men who argued the cases that started the common law – there were of course no women – naturally became clubbable.  England would be the birthplace of gentlemen’s clubs and pubs.  The lawyers after a while quickly divided into two – barristers and judges.  (Solicitors would come later.)  You had the bar and the bench.  And the tradition that judges should only come from the bar soon hardened into custom. 

The lawyers soon became adept at protecting their monopoly.  They got in early.  Clause 45 of Magna Carta provided that the crown would only appoint as officers of the law ‘such men as know the law of the kingdom and well desire to observe it’. 

If you look at the Charter, it is full of very technical drafting that could only have come from professional people operating at the height of their powers – and it is a shame that some in government with a party-political agenda have never heard of clause 45 (which, to repeat, is still part of our law).

By the end of the thirteenth century, the crown had issued a writ to the judges dealing with legal education and giving selected lawyers a monopoly.  The ‘better, worthier, and more promising students’ wishing to become serjeants were to ‘follow the court and take part in its business.’  The students would collect ‘in the crib’, and you will find in the Year Books references to what passed in the crib.  A leading legal historian would later say that at the turn of the century, ‘there was a very brilliant bar in England.’  That is remarkable – for 700 years ago.  The English may have thought that they and the law were cut out for each other.

Universities had their colleges; Freemasons had their lodges; and the lawyers had their Inns of Court.  That is where you started and learned – on the job, going to court.  The Inn would be your second home for life.  They naturally developed their own traditions and paraphernalia.  So, that is where you were indoctrinated – and, how.  You had to attend so many dinners each term, and such teaching as there was never extended to anything like theory or philosophy.  You learned on the job.  Universities had little or no place in the training of working lawyers until many centuries had passed.

As lawyers argued and judges decided cases, texts began to appear that that would become what were called ‘works of authority.’  There were names like Glanvill, Bracton, Fortescue and Hale.  In the 18^th century, Blackstone’s Laws of England would achieve something like biblical status in the U S. 

But these books were quite unlike Roman law texts – they were the for the most part collections of precedents with some commentary.  Anyone looking for the theory of the law would have sounded very odd – as odd as someone sounding off about the elegantia juris (juristic excellence) of the laws of Justinian.

Now any tight cadre of men can easily get up people’s noses and this lot certainly did, but what did they do for the law?  The short answer is that they made it, but we need to go a little further.

First, the Inns were coming into being and their teaching was taking effect at that point in medieval history when English universities were still getting off the ground.  Until then, the priesthood had had a monopoly of higher learning.  And they had abused that monopoly viciously by burning at the stake people who wanted to read the gospel or conduct their worship in their own tongue.  And they had taken the simple teaching of a Jewish hasid and drenched it in the theories of Aristotle and Plato, so putting it beyond almost all the flock.  Only the priest had the power to loose and bind – and the rest of us just had to take them on trust. 

Now all that monopoly was busted.  Sure, the lawyers had their own tricks and quirks, but they were English foibles.  And they were foibles held by people who would be just as happy to have a fight as a feed.

History has in my view underestimated this achievement of the English.  When you link it with events called the Reformation looked at in the last section, the priesthood is being put back in its box in a way that we do not see anywhere else.  It looks to me to be a form of emancipation.

Secondly, as part of their profession, the lawyers were engaged on a daily basis in protecting the liberty of the subject and ensuring due process.  As often as not, it was their duty to argue against the crown, and if they felt intimidated, they were not up to it.  That is still very much the case today, but I am not aware of anything remotely like it in any other part of the world back then – or for some centuries to come.  It is a state of mind fundamental to our concept of the rule of law.

Thirdly, and although you can’t measure any of this, these crotchety, wizened, and smelly denizens of the courts both personally and professionally bespoke a kind of individualism that is central to the way the English – both rulers and ruled – regard government.  Except for purely ceremonial purposes, they are not keen on bending the knee.

Fourthly, they were not beyond following one of the tricks of the priesthood.  The judges were apt to say ‘Don’t tell us what the law is – we made it.’  Or, ‘Your Majesty cannot act as a judge because Your Majesty is not learned in the law.’  Indeed, when Sir Edward Coke, as tough an old nut as any of them, said just that to Charles I – point blank, and on a Sunday morning – His Majesty came close to striking him, in what Dean Roscoe Pound called one of the glories of our jurisprudence.

Fifthly, for all those reasons, Roman law would never take hold in England.

Finally, and for present purposes, most importantly, the English people were about to have it out with their king.  The Stuarts would be silly and devious enough to offer the chance, and people trained in the Inns of Court would take it and become king-breakers from Hell.  People like Elliott, Hampden and Pym – and another man called Oliver Cromwell – had standing, property, character, indoctrination – and God.  They also have towns or streets named after them in the U S. One Stuart was executed; another deported.  The whole House was gone – over the way to Skye, and a bonnie prince who would never make it.

The lawyers were in league with the parliament against the crown.  The Trevelyan clan were apt to go over the top about all this, but it is worth recalling what G M Trevelyan said:

‘Coke had not striven in vain.  He had enlisted the professional pride of the students of the common law against the rival systems especially favoured by the Crown and the Star Chamber, the Admiralty and the Ecclesiastical Court.  He had turned the minds of the young gentlemen of the Inns of Court, who watched him from afar with fear and reverence, to contemplate a new idea of the constitutional functions and of political affinities of their profession, which they were destined in their generation to develop in a hundred ways, as counsel for England had gone to the law with her King.’

Rhapsodic, really.  But let me close with one anecdote.  The dispute with Charles I, which ended on the scaffold, was about whether he had to submit to parliament to get revenue.  This was the ultimate crunch point between parliament and the crown.  The king claimed the right to get ship money.  That claim was very suspect.  Hampden refused to pay and the matter went to court.  The case occupies a large part of one volume of State Trials.  It took me more than one day to read the submissions of Oliver St John.  It is very, very high learning – the high technique of the Year Books.  In the end, enough judges went to waterto allow the crown to stagger on.  They would be dealt with for their failure by the Commons later when order was restored.  But the court was asked to rule that the king’s tax was unlawful.  In most other parts of the world now, people would just fall about the floor laughing at such a lunatic suggestion.

Then the parliament had to deal with the threat of Strafford.  Their court process failed, and they resorted to parliament.  St John was on hand again with a most elaborate argument.  Capped by a coup de grȃce right across the throat of the Earl – who then suffered the fate that would later befall the king obliged to sign his death warrants.

In truth, these were blood sports, and the English and their lawyers were up to them.  It’s a wonder cricket ever took on.

Law -history – English bar – English constitution.

An essay in nine easy tablets

Some years ago, I wrote a book called ‘The Common Law, A History’.  I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law.  That in my view is worse than sad.  This essay is not a précis of that book.  It is an introduction written for the general reader.  People at large should have an interest in the history that underlies and underwrites our way of life.  It also represents the bare minimum of what law students should be taught.  The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy.  I will publish the essay by nine consecutive posts on this website.  I hope you get some of the enjoyment in reading it that I got in writing it.

5 Religious home rule

We saw that King John scuttled off to the Vatican to get Magna Carta annulled – and to pawn his whole realm.  That is an annihilation of sovereignty, rather than a mere incursion.  You can still detect something like a purr of recognition in an English audience to Shakespeare’s play when King John tells the papal legate ‘from the mouth of England’ that no ‘Italian priest’ shall collect revenue ‘in our dominions’.  He goes on to refer to our ‘great supremacy’ – a word we will come back to.

The issue blew up fatally under Henry II when Beckett sought to shield his priests from the ordinary law of the land.  Here was another challenge to the authority of the English crown – a dint in its story that would enrage Henry VIII – and would be unthinkable today.

If we then move forward to the sixteenth century, we are at the end of that phase of history called the Middle Ages.  The advisers consulted by the crown are now meeting in what we call a parliament.  Its growth is fragmented, and, as ever, unplanned, but it is beginning to resemble the parliament we know today.  By the reign of Elizabeth, it can cause real trouble to the crown.  The jostle for power has begun.

The time of feudalism is about spent.  Under that system, the standing of people in the community would be determined by a convoluted system of ranking of a kind that people would later see in the civil service of India or Prussia.   Too much of it was fixed from birth.  We are moving to what is called the modern phase of history, where your standing was determined by your efforts and what you could negotiate. 

In other words, we are seeing what Sir Henry Maine called the movement from ‘status to contract’.  That statement may be large – large enough to be one those that I suspect made Maitland nervous – but it is a very useful prism when we come to look at what we like to call ‘progress’.  Indeed, one reason the common law judges were slow to give legal effect to an agreement between parties may have been that they thought they would be giving people the power to make their own law.  The French Code says in terms that ‘Contracts legally made have the force of law between those who have made them.’

There is another movement that we can observe.  Kant said that enlightenment was our emergence from our self-incurred immaturity.  ‘Immaturity is the inability to use one’s own understanding without the guidance of another’ – the problem, Kant said, was not a lack of understanding, but a lack of resolution and courage to use it without help from someone else.  That is a riveting insight – that bears on our professional conduct today and the failures of our courts. 

It also underlies what we know as the Protestant revolt or Reformation.  As nations matured, their peoples did not just seek to reduce the place of the supernatural, or magic, in their lives – they wanted to reduce the role of the middle man, the priest.  They were coming to the view that the church might be causing more trouble than it was worth.  In medieval Europe, there were three groups – those who fought, those who worked, and those who prayed.  Well, that does sound very medieval – and one group was ready to take a hit.

The protest of Luther was about faith and the church.  The English revolt had next to nothing to do with either.  Putting Harry’s errant carnality to one side, the issue was not merely political, but constitutional.  The Tudors emerged from the splintering of the nation that came with the Wars of the Roses.  The paramount duty of the crown was to secure the succession.  Because of a conflict of interests, the pope could not accommodate the English king.  So, the English broke away.

They did so not by royal proclamation, but by a series of acts of parliament.  By doing that, the crown tacitly acknowledged that ultimately sovereignty in England rested in the crown in parliament – or at least, that is what the parliament and its champions could argue. 

Here was a real accretion of power.  Among other things, the title of the crown, and the government of the church, all derived from the parliament.  The church became in substance a department of state.  The crown was at the head of both, and by and large the Anglican church has behaved itself since, and not caused trouble to the crown or the nation.

There was an Act of Supremacy.  It followed an act that had a recital of complacent self-satisfaction that Jefferson would later mimic – ‘Where, by diverse sundry old authentic histories and chronicles, it is manifestly declared and expressed that this realm of England is an empire….’  It’s like Magna Carta.  ‘Nothing much going on here, Officer – just a spot of cleaning up some odds and ends with those clerical wallahs.’

Here, then, was a declaration of independence.  Fine – but what did it have to do with the law? 

Well, the English had to defend it against a Spanish invasion.  The soldiers of the Vatican would certainly have burnt Elizabeth at the stake as a heretic; would-be assassins had already been offered Paradise.  After that speech at Tilbury from their queen, England was about to flower as a nation.

In the next century, the English would finally come to terms with their king.  But now they had dealt with God and his church.  After they had fixed things with their king, they could turn their full attention to the aristocracy. 

In 1789, the French blew up all three at once, and they have still not recovered from the explosion.  The Russian experience hardly bears mention – and we are about to face another problem with them as a result.  People of the cloth have wrought misery on their flocks in places like Greece, Italy, Spain and Russia.  The Americans erected solid barriers under their constitution, and they are now being torn apart by illiterate devotees of a faith perverted by mammon, and people who prefer fiction to fact.

The Anglican vicar, then, comes down to us now as quite a relief.

Legal history – reformation – religious self-government.

If you hold investments as a trustee you must act, and only act, in the interests of the beneficial owners of the investments – the beneficiaries of the trust.  You are not there to look after yourself – or your mates, footy club, political party, union, or government.  And if one of them asks you to do so, you know immediately that you have a conflict of interests – between your duty as a trustee and an interest in looking after someone close to you.  So, you just say ‘No’ – and move on.

For good reason, the federal government wants to apply pressure to Russia by persuading Australians to get rid of investments in Russia.  They want super funds to do the same.  Those funds are held on trust.  Two ministers said they had a ‘strong expectation that Australian superannuation funds will review their investment portfolios and take steps to divest any holdings in Russian assets….While Australian superannuation funds only have a small exposure to Russian investments in the context of the $3.5 trillion superannuation system, it is important that Australia sends a clear and unequivocal signal that we condemn in the strongest possible terms Russia’s unprovoked and unjustified attack on Ukraine,’ the ministers said in a joint statement.

But what if doing that is bad financially – and not in the interests of the beneficiaries of the trusts?  Well, the trustees must decline to act as requested by the government.  That is obvious.  To do so would put them in breach of trust – and liable to be sued for it. 

Then the relevant enforcement agency, the Australian Prudential Regulation Authority, announced that it would not take any action against funds that divest their Russian assets provided they had ‘considered such divestments in accordance with their duties.’

This is, at its lowest, very unfortunate.  ‘We will look the other way if you resolve your conflict of interest by doing what we ask – provided that you at least acknowledge that you thought about it first.’

It was not open to the government to say that if you do what we ask, there will be no breach of trust.  They, through their ‘enforcement’, merely say we will not go after you this time.

If the trustee got sued for breach of trust, it could not plead this signal as a defence.  Indeed, if it did so, it might simply see the trustee adding the agency as a defendant – on the ground that the agency put the trustee up to it – a kind of aiding and abetting, or knowing assistance.  If you want a case, try Barnes v Addy.

This is another case of government and its agents not just flirting with but walking all over the law.

Super funds – Russian investments – government directives – breach of trust – knowing assistance by government agency in breach of trust.

My golf was as problematic as my batting.  That is a large statement.  But I had these nightmares about playing golf against Warnie and Punter (Ricky Ponting).  I would have a straight five-foot putt.  They would not say anything.  They would certainly not cheat.  They would just look at me with a crystalline innocence.  And get inside my bloody head.  So that the simple shot became a hazardous minefield.  Some people can beat you just by their aura – and not just in games.

Punter and Warnie had two things in common.  They had skills straight from God.  And they were ferociously and naturally competitive.  They wanted to win, they knew how to do it, and they passed that on to others.  Deadly at golf, they were even more lethal in team games – and in games where the gamesmanship is right in your face.

The two players had something else in common.  They came from the suburbs and they did not fancy school.  Education in that sense was not their go.  They were no toffs. 

Sometimes that showed.  Punter got into some trouble as captain of Australia.  For once, Cricket Australia said something sensible.  They said that Punter had quit school early to become a professional cricketer.  He did not have a Ph D from Oxford or the training to be a diplomat. 

We should bear all that in mind with Warnie.  Nous – in abundance, almost freakish insights; a born poker player; but Fowler, Debrett, or Emily Post?  Gimme a break.  You may as well credit our Hillsong man with mastery of Kant’s Critique of Pure Reason.

Together with the mawkishness from one quarter, we will get snobbery from another.  We are not as free of it here as we like to think.  A while ago, you would hear the following at the footy – ‘You can take the boy out of Footscray, but you can’t take Footscray out of the boy.’  You don’t hear it so much now, which is just as bloody well.  But you still get it for Warnie, who is seen by some as a throwback to Neighbours. 

Well, the boy from Black Rock did not get to Melbourne Grammar.  He certainly did not regret that, and nor do I.  When Warnie left us so abruptly, I was reading Rudyard Kipling’s Kim – for the fifth time.  Warnie did have a lot in common with that boyish, ragged, unlettered hero – whose lama saw him as ‘something of an imp.’

Shane Warne was born into a country where every boy dreams of wearing his nation’s colours.  That is the kind of stuff our dreams are made of.  But what happens when you – like Lord Byron – wake one day and find yourself famous?  And nothing – nothing – in your experience of life has prepared you for this? 

What happens is that you court disaster.  We saw it in full force about two years ago at Cape Town with young men who were just too young to carry the load that we had put on their shoulders. 

Steve Smith recovered.  So did Warnie.  But the captaincy was rightly put of the question for Warnie.  And in thinking about that, I was reminded that I have said I do not see how we could say Smith was fit to play for us, but not fit to be our captain.  Well, Warnie clearly fell into that category.

Warnie was the best cricketer I ever saw.  I say that for the same reason and on the same basis that I assess my favorite footballers.  It is not just their prodigious talent and skill.  It is their capacity to win those big matches.  Warne was a freak as a bowler.  But more than that – much more than that – when he was in our team, we never thought the game was beyond us.  We always thought we could win.  And God knows that he got us over the line in close World Cup matches and Ashes tests – the ones that really count; the ones a nation holds it breath for – and cherishes in its memory.

You can’t teach or buy that.  And the risk of a prodigy is that he may create mayhem in the dressing room – something alleged against Kevin Pietersen. 

As best as we can see, Warnie was the real thing as both a cricket genius and a team player.  This is fundamental for those of us who believe that in the end the issue in the professions or sport ultimately falls to be determined by character – and nothing else. 

The Australian team under Steve Waugh – the iron man – was as tough a side as I have had representing me.  It was inevitable that they would get up some noses, with all that power, skill, and burning drive.  And those egos!  And it was also inevitable that the testosterone would spill over in ways that were then unfortunate and are now verboten. 

Warnie was fortunate that in his pursuit of skirt, he did not join the ranks of serial abusers – or at least, he was not seen to have done so.  Things would have been very different had he arrived a generation later. 

The low point for me was when he turned up in front of the MCG with an English floozie – with his kids.  If you want to make a fool of yourself schmoozing in public with England’s answer to Kylie Minogue, that’s a matter for you, Mate – but in the name of God, spare your kids, and give them a sporting chance of avoiding your addiction to celebrity.

It was not surprising that in one of his flirtations with sense and decency, Warnie was joined by Mark Waugh.  Mark is I think the most gifted cricketer I have seen.  And he had the steel when we needed it in second innings in seriously tough test matches offshore.  But he could not be trusted with the ultimate judgment of what was best for his country – and nor could Warnie.

And Mark Waugh got the kinds of blowback that can be very bad in us.  He was so gifted that he did not appear to be trying.  What dreadful bullshit!  The trouble is that some people who are larger than life bring out the worst in some smaller people.  We can be crippled by that kind of jealousy – in a land that positively celebrates mediocrity. 

And ‘Junior’, as he is called, knows all about snobbery.  It’s not just his grammar; his wife trains neddies in the trots, and he likes a bet.  ‘Good God, old boy, next it will be the dishlickers.’

So, Warnie has left us, and the pain is worse in one part of the nation than others.  Warnie was a St Kilda fan, but he was also the ultimate Melbourne boy.  He was ours – all ours. 

We know all about this kind of stuff in Melbourne.  We are the sports capital of the world – which is one reason why most of us would never live anywhere else. 

And a large part of all that is that this city has a world-famous beating heart – the MCG.  That is the spot in the village where people of all types and colours meet in one community.  This is the stuff that dreams are made of.  Frank ‘Typhoon’ Tyson running through us like a dose of salts – a side that included Harvey and Miller.  Here is where I was lifted off my feet and plucked from a world record crowd at the Grand Final in the Olympic year.  The Demons just fell over the line in 1964.  Gary Sobers flat batted a straight six off an uppity young quick called Lillee.  The same bowler trapped Knott to win the Centenary Test.  Border and Thommo sustained the most famous last stand since Custer.  Akram knocked over Botham in the World Cup Final in the first over of the English innings.  Warnie got a hat trick against England.  And a shy, mature man of colour recently mesmerised the crowd and the nation by roiling through the English.

Melbourne people say you have not lived until you have been there for moments like that.  There is nothing else like it on this earth.  Warnie had his second home there, and the two will remain part of the fabric of this nation.

Bradman came from a different era – and space.  He was deferential – too much so to my lords at Lord’s.  And he hung on to power too long as the eminence grise, and drove an entire generation into the arms of Kerry Packer – and the lucre and razzmatazz through which phenomena like Warnie shoot like meteorites.  In the end, Douglas Jardine and Kerry Packer did more to forge Australian cricket than did Bradman with all of his baggage.  Warnie had plenty of baggage too, but the crowd will forget it – and just remember the good times.

Not everyone felt the same level of shock in Warnie’s end that I and others did – together with the intimation of mortality.  Ian Healy kept wicket to Warne and he knew Warne had problems with his diet. 

Michael Vaughan is a Yorkshireman – a good bloke and fine cricketer – and, like most English players, he was a good mate of Shane Warne.  Vaughan was obviously very distressed by the news.  He had had the most recent Christmas dinner with the Warne family.  Turkey, and all the trimmings.  Warnie, that sometime tubby little boy, stuck with his lasagne sandwiches – splattered with butter.  Always the boy – like the test pilots in The Right Stuff, always seeking to extend the outside of envelope.

Well, it was the fags and the butter that nearly killed me with a heart attack at about the age of 55 – after I had given up smoking nine years beforehand.  This Icarus had flown too close to the sun too long.  It looks like Warnie was taken out by a slider.

Two anecdotes will show why people loved Warnie – yes, loved.  A rock star and Warnie were to appear on TV with Rob Sitch.  (Of The Castle – and who did medicine with my vascular surgeon.)  The rock star turned up in a limo and a retinue of eight.  ‘Where’s bloody Warnie?’  ‘Out the bloody back having a fag with the janitor’. 

When Warnie got into trouble with drugs, he was encouraged by some lawyers to sue for libel.  Large retinues of them turned up at my firm at 101 Collins St for me to mediate the case.  The lawyers looked predatory and they sounded ravenous.  The posturing was just awful to behold.  Then Warnie went missing.  ‘It’s OK, he’s downstairs on the street having a fag with your staff.’  For days later, the staff just walked around ensainted.  They had been in the presence – and he had seen them and talked to them.

The only time I saw anything like it was when a group of our articled clerks went to the MCG to see Muhammad Ali.  They came back visibly blessed.  They were somehow changed.  It is an interesting reflection.  And I am not bullshitting.

There were too balls bowled by Warnie that most of us will go to God with.  Each took out the then English captain.  Neither captain knew how.  Terror spread in the dressing rooms, and the news rang around the world.  Each ball had spun – viciously and noisily, like a rattle snake.  There was one difference.  Warnie got Gatting first ball.  Strauss took two balls.  As another Englishman said, we are such stuff as dreams are made of.

And as I sat there watching all this being replayed, I could not avoid the mawkish.  The tears were coloured green and gold – with a tinge of red.  And I could not get out of my head an absurdly relevant clip from the most famous memorial ever – ‘of the people, by the people, for the people.’