The Victorian Bar and the Voice

The Victorian Bar is the body of lawyers who practise law as barristers.  It descends from the English body that together with the English judges built the common law that we have inherited. 

The common law underlies the English constitution, the rule of law, our political order, and our justice system.  If you took the English Bar and Bench out of the history of England and its colonies like us, you would not recognise what was left.  I have no idea, but I do know that the role played by English lawyers in shaping every aspect of the English body politic is what distinguishes it, and those like us who derive from it, from the rest of the world.

The Victorian Bar is considering making a statement about the proposed referendum on the Voice.  Some barristers oppose that course.  I have received two group emails expressing that opposition. Neither writer indicated his view on the proposed referendum.  Each just opposes the Bar making any statement.  They say that the ‘independence’ of the Bar may be compromised if it is seen to be expressing a ‘political’ view.

I will say what my position on the proposed referendum is.  I think it is very right and proper that the people we now know as the First Nations should have a voice deriving from our constitution in the governance of the nation.  When I first read the proposal, I could not understand how any sensible person could in good faith oppose it.  What passes for debate since has confirmed me in that opinion.

There are two other issues.  Now that the proposal is there, I think that its rejection would set back for about two generations the cause of reconciliation in this nation and in its standing in the world. 

And the opposition is being driven by what I may refer to as the usual suspects in our politics and the media – those who thrive on conflict and denial, and who like to appear as champions of the people – and who also claim to be ‘conservative’.  For them, any kind of ‘progress’ is anathema.  They have a splendid determination to stay on the wrong side of history.  And they overlook the first obligation of any opposition.  What answer do you have that best suits our community?

So – what does the ‘independence’ of the Bar entail?  I am not sure.  The Bar and the Bench are integral to the justice system as we know it.  We are forever reminded that barristers owe a duty to the court.  We are not nearly as dependent on government funding as the doctors – putting the judges to one side for this purpose – but many at the Bar, not least among those who run it, have hopes for some form of preferment from one or another organ of government – and very many of them conduct themselves accordingly. 

If the notion of the Bar not being dependant on government means anything, it must I think mean that barristers as a group or individually will not allow themselves to be pushed round by government – or any other source of power, like a church, trading corporation, trade union, or political party or faction. 

But it cannot mean that the Bar should not criticise a government, or a political party aspiring to govern, for proposing a course that it considers is inimical to the best way of balancing legal rights and obligations across the community as a whole.

The issue gets far murkier when you go to the second broad plastic term of the opposition – ‘politics’.

Someone – it was probably Aristotle – said that man is a political animal.  The Greeks would say that, because people lived in a polis.  We say it because we must talk about the way we get on with each other.  We are different to a rhinoceros or a bull terrier, or one of those dilapidated foxies that yap at our heels.  We talk about getting on with each other.  That is called politics.  Then we make rules.  That gives us the law.  Then we get people learned in the law to advise us, and act for us, and, if they are so appointed, to decide our disputes according to law.

Why should you seek to preclude a body that represents lawyers from expressing a view on a proposed law?  What if the government said ‘We will legislate to make judges subordinate to parliament?  Or to abolish trial by jury?  Or the rule of law?  Or democracy?’

Well, do people say that the Bar should not express a view on an issue where the two major parties have conflicting positions?  That cannot be right.  That would entail that the rights of the Bar, and the interests of the community, would depend on decisions made within one or another political party, or faction, and quite possibly by people who have not been elected to any parliament.

The Bar has an interest, and in my view an obligation, to comment on proposals to change the law on any number of issues that have been the subject of party-political disputes.  Such as the death penalty; same sex marriage; euthanasia; mandatory sentencing; the ambit of discrimination laws; legal aid; divorce; superannuation; taxation; a proposed Bill of Rights – and so on. 

If people say that the advice of the Bar is respected on some issues, and that such respect may be diminished if the Bar expresses a view on the proposed referendum, can they tell us what such issues are, on which we may properly opine, and why such opinions are not being expressed on ‘political’ issues?

The point seems to me be that the rights and obligations of the Bar, and the correlative interests of the community, should not be defined simply by the application of a label, especially one as ‘porous’ as ‘political’, when applied to a notion as nebulous as ‘independence.’ 

And that is especially so here because so many people regret that so few chose to turn the best interests of our First Nations people into a party-political issue.  In my view, those politicians and their flag bearers should be deeply ashamed of themselves.

The hostility of such people is curious.  They are heavily into ideology, which just does not wash here or in England, and they trade – yes, trade – on conflict and division.  They bang on and on about freedom of speech and religion, and they use code terms like ‘woke’ and ‘virtue signalling’ and ‘cancel culture’, but they are quick to upbraid anyone who departs from their line.  Those who joined in what looked like a latterday pogrom against Stan Grant may well now support a push to ‘cancel’ the Victorian Bar. 

And it does not help that their front man is a politician not previously noted for his breadth of vision, or his seeking to advance a fairer Australia.

The time has long since passed when trading corporations and representative bodies could be bullied out of taking a position on moral or political issues, like same sex marriage or climate change, when those bodies got sick of the failure of government to do anything at all about them.

The interest of the community in knowing what are the views of the legal profession on a legal issue is all the greater where palpable nonsense is being put about by those who should know better, and we the people have allowed ourselves to be scared or bluffed out of implementing most necessary changes to our laws far too often in our short history. 

And the role of bodies representing the legal profession in dispelling forensic claptrap is critical given the reticence among former judges and the enforced silence of current judges.

The ultimate issue is simple.  Should our constitution allow the original owners of this land a right to be heard in its government? 

Our aboriginal peoples did not ask people from the other side of the world to come on to their land.  With the help of the gun, the bottle and the bible, we nearly wiped them out.  The one indisputable benefit of the British occupation has been the arrival of the rule of law. 

A central part of what we used to call ‘natural justice’ is the right of people to be heard before a government moves against them.  That has been part of the law of England since 1215.  It came out here with the first fleet.  It is central to our conception of civilisation.  It simply passes my understanding how any person, let alone a lawyer brought up in the common law, could now seek to deny that right to the original Australians.  In the name of Heaven, have they not suffered enough?

It is emphatically not the role of ‘conservatives’ to rip up a millennium or so of our history.  Had our ancestors in the law adopted the posture that lawyers should stay out of politics, we would not now be worrying about how to deal with the Stuart Kings.  We might be asking if we should meet with the last Angevin king at Runnymede in order to strike a political deal that might change the course of the history of the world.  We would be still fumbling in the dark, like those at the back of Plato’s cave.

In my view, we should respect the right of the Victorian Bar to be heard on the issue to be put before the people of Australia in the proposed referendum on the constitution.

The Voice – common law and the rule of law – obligations of a profession.

Passing Bull 355 – The failing of a political party

At a meeting of the Liberal Party at the weekend, accredited members purporting to show support for a member expelled loudly demonstrated against the parliamentary leader.  It is the behaviour that thugs and fools use against local government.  Its only purpose can be to harm the relevant instrument of government. 

That purpose was achieved. The press reported it, and the ordinary reader would doubt whether any outfit so composed or plagued could represent anyone.

On the previous Sunday, the press reported on the responses of anonymous MPs to the expulsion.  One said it was not a show of faith in the leader after a demoralising ‘shitshow’.

He will have my support, but he does need to do a better job of leading.  It’s not the job of followers to follow, it’s the job of leaders to lead.  You’ve put everyone in a situation that they did not want to be in.

Another MP said the expulsion was an act of ‘infanticide.’

It is plain why these bunnies wish to stay unnamed. They have no idea of what they are doing.  They should not be there.

To adopt a remark of Lincoln, the question is whether any party so dedicated can long endure.  Its persistent failure to serve its purpose is a threat to us all.

Liberal Party – Deeming – Two party democracy.

Richard II – and the politicians

The play Richard II is a descant on the word ‘majesty’.  (According to this computer, the word appears 25 times in the play.)  It is also a passion play, but it depicts the trial, suffering and death not of the son of God, but of God’s anointed.  And in this version, Pontius Pilate walks off with the prize and does not live happily ever after.  If he could depose a king, who had been put there by God, how could he stop someone doing just that to him? 

The Judas is complete.  The Hand of God, with apologies to Maradona, is not.  One man undoes himself, and tells the world all about it.  Another takes his place and keeps his mouth shut; and his son would show a similar capacity for edgy deceit.  It is a play about majesty and pathos. 

And the language is as majestic as this playwright would put out.  His genius was erupting.  This play comes at about the time of Midsummer Night’s Dream and Romeo and Juliet.  No one had written, or would later write, poetry like that.  If they were the only work this man of the theatre had left us, we would still marvel at these flashes from another world.

The play starts with a feud among the better people.  The first function of the law and the first duty of the king is to end any feud and prevent a vendetta.  He is in office to uphold the king’s peace.  There was a prescribed method for resolving such a feud – trial by battle.  The playwright describes the formalities in great detail. 

And then the king intervenes to stop the process and impose his own resolution.  He does so even though his connection to one side made it imperative that he stay out of it and leave it to precedent; and also, because some said that the cause of the feud was a murder that the king may not have wanted to see examined too closely.

Here I must disagree for once with Tony Tanner.  He is led by another scholar to say that the king wanted to assert his monarchic authority over the power of feudalism (which term was not then in use) and to displace the chivalric code by affirming a policy of royal absolutism.  If I may say so, that kind of ideology or political theory may wash over the Channel, or across the Rhine, but not at Stratford or Westminster.  That kind of fancy, airy stuff is not the English schtick.

(Tanner also said of the usurper that ‘we are never let into his mind.’  Well, Bolingbroke does not confess his ambition to the audience in a soliloquy, but he left nothing to the imagination when he ordered the execution of three malcontents, who happened to be his personal enemies.  Even an anointed king could not do that – at least not lawfully.  By this time, the English had come to the settled view that since 1215, the king was under the law, because the law made the king.  The problem was that some kings, like this one, were proving to be slow learners.)

We might also reflect that in this primitive type of process, whether trial by battle, or by ordeal, or getting others to vouch for you, people in those times thought that they were getting the judgment of God.  (Well, perhaps that is not so primitive.  We still ask witnesses in court if they are prepared to invoke God as to the truth of their evidence.)

Then the usurper departs from a more elemental precedent: the due process of succession to the Crown.  This is a coup.  Both political players – for that’s what they were – ignore the advice of the Duke of York.

…. For how art thou a king

But by fair sequence and succession?  (2.1.198-199)

There is a word for people like Bolingbroke.  Shifty.

And so, the English royal house fell into a curse like those in a Greek tragedy.  This usurpation set in train the long sequence of calamities that led to Richard III and then the advent of, or usurpation by, the Tudors. 

And this great playwright chronicled his nation’s history of these events in eight mighty plays written from time to time and ending with a play about the greatest political hit man of them all – Henry VIII.  (Well, at least Harry had the courtesy this time to take out his wrath offshore on the Holy Father in Rome.)

Richard II was a brash young man who was acting on the throne like Prince Hal may have acted there if he had not been faking it as a prince.  Tricky Dicky, as he might later have been known, had run out of cash for his Irish wars.  (English royalty taking it out on the Irish would later give way to English aristocrats going north to shoot grouse.)  So, he hocks the joint – he leases out Crown land to his mates.  He gives them ‘blank charters’.  They were the equivalent of blank cheques.  (Some forlorn people in England now might ask if Richard II and his ‘upstart unthrifts’ had been the first to engage in Trussonomics.  Although, it is true that ‘Buy Now, Pay Later’ is under a cloud in places.)

And the king’s motley crew have noticed that cousin Bolingbroke has been courting the common people (as his son would do in his own peculiar way).  They also know whose side the commons are on.

And that is the wavering commons, for their love

Lies in their purses, and whoso empties them

By so much fills their hearts with deadly hate.  (2.2.128-130)

When the bubble bursts, therefore, the commons will come after the royal party with blunt penknives.  As the French did, with sharper implements, with Louis XVI and his queen, after France had bankrupted itself backing American colonists.  They then had to summon the Estates-General to get finance.  Then one revolution led to another.

The commons and the mob do not feature as much in this play as they had in Richard III, which the author had written previously.  By then he had showed his distaste for Dick Cade – and Nigel Farage and Donald Trump.  In Richard II, the magnates say they must satisfy the commons, but this is just window dressing and spin.

Meanwhile, big things were happening to the legal fabric of England during the reign of Richard II from 1377 to 1399.  That was in the period that we know as the waning of the Middle Ages.  The English had declined to adopt Roman law, and the common law, on which its constitution is based, was taking real shape.  So was the parliament, although it was nothing like what England has now.

Or was it? 

Is it possible that the high drama shown in this great play only came after what we would now call politicians had played their normal games about funding the government?  Is it even possible that they played those games in parliament in about, say, 1398?

Helen Cam was a distinguished English scholar of medieval local history.  That is a very specialised learning that derives from careful analysis of obscure and often previously unheard-of sources.  Dr Cam devoted a large part of her life to examining the most remote and flimsy scraps of the historical record.  She may have been one of those mild-mannered ladies who takes no prisoners.

But such a procedure is above all necessary for the student of institutions, where some facile generalizations on legal, social or administrative matters passed on from pen to pen, may without such checking of the facts, destroy both the life and the truth of pictures of the past.

Blimey!  Talk about hand grenades in a goldfish bowl.  How did the Comrades next door take that swipe about ‘facile generalizations?  In the name of God, why else do we go to university?

A typical book of Dr Cam (who at one time transferred her locus standi to Harvard, perhaps for cause) is Liberties and Communities in Medieval History.  It was published in 1963, and contained papers written between 1923 and 1942.  It posed no immediate sales threat to Peyton Place or Lady Chatterley.  One paper is The relation of English Members of Parliament to their constituencies in the Fourteenth Century. 

I did say that the learning was specialised.  The big picture is that the sovereignty of the British parliament would come to settle in the association of representation in parliament with consent to taxation.  The English were nowhere near that in, say 1399, but they were working on it.  (The process started with a typical English aside in Magna Carta ,1215, and concluded with the Glorious Revolution in 1688/9.)

Dr Cam is interested in primary evidence from the time that is the subject of her inquiry.  She gives us an academic summary of the work of other scholars and she tells us that her main object is to ‘call attention to a source which has been, in my opinion, most strangely neglected.’ 

It is a poem about one meeting of parliament in the reign of Richard II that took place a year or so before he was deposed. 

Richard had been deposed, but he was still alive when the poem was written.  The poet says that Richard had lost the love of his people by lawlessness, extortion, and a choice of evil counsellors.  We see all of that in the play.  But the poet says that the extravagant spending of Richard had forced him to a summon parliament – to get some money for his Irish wars.

The poem is in middle English and that text is given together with Dr Cam’s translation.

 So, pour yourself a cup of tea, or something stronger, and here it is.

When the day for action arrived, the lords were assembled and also the knights of the shire.  According to the usual form, the cause of meeting was first declared, and then the king’s will.  A clerk began with a dignified speech setting forth the main points before them all, and asking above all for money, with flattery to the great men to avert complaints.  When the speech was ended, the knights of the commons were commanded to meet on the morrow, before dinner, with the citizens of the shires to go through the articles which they had just heard and grant all that had been asked them.  But to save appearances, and in accordance with custom, some of them falsely argued at some length, and said: ‘We are servants and we draw a salary; we are sent from the shires to make known their grievances, to discuss matters on their behalf and to stick to that, and only make grants of their money to the great men in a regular way, unless there is war.  If we are false to people who pay our wages, we are not earning them.’

Some members sat there like a nought in arithmetic, that marks a place, but has no value in itself.  Some had taken bribes, so that the shire they represented had no advantage from their presence.  Some were tattlers, who went to the king and warned him against men who were really good friends of his and deserved no blame either from the king, council, or commons, if one listened carefully to the very end of their speeches.  Some members slumbered and slept and said little.  Some stammered and mumbled, and did not know what they meant to say.  Some were paid dependants, and were afraid to take any step without their master’s orders.  Some were so pompous and dull witted that they got hopelessly involved before they reached the end of their speeches, and no one, whether he sat on the bench or whether he was a burgess, could have made out what they wanted to say, there was so little sense in it.

And some of them dashed ahead so recklessly that, like a ship driven by the wind, they would have gone on the rocks, had not lords warned the master that they had better keep to subjects which were their own business and which they understood; then they lowered their sales and took a wiser course.

Some had been got at beforehand by the council, and knew well enough how things would have to end, or the assembly would be sorry for it.  Some went with the majority, whichever way they went, while some would not commit themselves.  Some were quite openly more concerned about the money the king owed them than about the interests of the commons who paid their salaries, and these were promised their reward; if they would vote the taxes, their debts would be paid them.  And some were so afraid of great men that they forsook righteousness.

What kind of nugget lay there?  This is on any view a Eureka! moment.

Read it, again, I beseech you – word for word.  Do you not agree that this poem shrieks two things at us?   Truth and relevance. 

Let us put Australian politics to one side.  We are still familiar with every single part of this narrative.  It’s what Kipling may have called the Small Game, not the Great Game.  And it matters nothing that none of this may ever have happened when this misguided and mendicant king was forced to summon a parliament for money – and then have it play Charades.  It is enough for us that people of England were talking like this in what was still medieval England. 

Dr Cam knew all about this kind of stuff.  She said that the ‘vivid recognition of the obligations a member owed the electors seems to me to be unique at this date.’

All this was so very long ago.  But today, at least nine out of ten people in the world have never even been close to this level of political development. 

And if you were ever silly enough to make a joke about any of this in China or Russia, you could meet with a very bad accident – either by looking down the barrel of a very big gun on a tank, or by having an accidental but fatal fall from the third-floor window of a Siberian sanatorium.

Well, when it came to politics, the English always had a way about them.  Whether they still do is a question for another day.

So, next time you are playing Richard II, or you are watching or reading or listening to it, and the players seek to ‘make high majesty look like itself’ (2.2.295), don’t worry about the boys in the back room.  They were hard at it then, and they have been bloody hard at it for all the more than seven hundred years since.

Shakespeare – history of parliament – control of the Crown – party politics – granting supply.

Passing Bull 354 – Vows

Gibbon slammed many aspects of religion, and saved some of his best barbs for footnotes, like this:

I have somewhere heard or read the frank admission of a Benedictine abbot: ‘My vow of poverty has given me a hundred thousand crowns a year; my vow of obedience has raised me to the rank of sovereign prince.’  I forget the consequences of his vow of chastity.