Here and there – King John and the Laws of England

Part II

Shakespeare did not refer to Magna Carta in King John, but he described the reaction of the English barons to a weak king.  The king undergoes another coronation and takes fresh oaths of allegiance to overcome the excommunication.  The barons are very restless at all this.  The king tells them they will see how ready he is to accommodate them.  Salisbury says:

The colour of the king doth come and go
Between his purpose and his conscience,
Like heralds ‘twixt two dreadful battles set:
His passion is so ripe, it needs must break.  (4.2.76-79)

When news comes of the death of Arthur, John is quite unmanned.  All he can say is: ‘They burn in indignation.  I repent.’  He is now a shuttlecock between the Vatican and the barons – and Innocent and the barons were very tough nuts.  He is craven before Pandulf and he blames Hubert for not refusing to murder Arthur.  (Reinhard Heydrich was cashiered from the navy – he appeared before a court of honour and blamed a pregnancy on the girl.)  So that when it came to settling what was a kind of civil war, what Mafia dons called ‘making the peace’, King John had to make concessions that would have been unthinkable in the realm up to that time.  The concessions appear in Magna Carta.

These barons were in truth not the flower of chivalry.  One, Robert fitz Walter, called himself ‘Marshall of the Army of God and Holy Church.’  Robert de Ros was a marauding land rustler whose men attacked agents of the Sheriff of Yorkshire with bows and arrows.  Well, the barons had among their number members who were capable of putting together a document of the first constitutional significance – the very first.  John did not sign it – there is no evidence that he could write.  It took legal effect when it was sealed with an oath. 

Some very astute lawyers were involved in making this document, and they were not acting solely in the interests of the barons.  The Charter provides for what is to happen ‘in order to have the common counsel of the kingdom for assessing aid.’  ‘Aid’ there means in substance tax.  To ‘have the common counsel’ will harden into a requirement that the king get a statute from his parliament before he can get a tax.  That then will be the lynchpin of the whole dispensation, since he who controls the money controls the game.  That’s the process that was completed in 1689.

But the Charter is remembered and still invoked for two articles on the administration of justice.  Articles 39 and 40 are as follows:

39. No freeman shall be captured or imprisoned or disseised [deprived of land] or outlawed or exiled or in any way destroyed, nor will we go [nec ibimus] against him, or send [nec mittimus] against him, except by the lawful judgment of his peers or by the law of the land.

40. To none will we sell, to none will we deny or delay right or justice.

These words were meant to be etched in stone.  You might expect to find in a prayer book the words ‘nor will we go against him or send against him.’  If you want to know whether the original has the same lapidary quality, the Latin, partly shown, is just as moving.

Article 39 is no less than the foundation of what we call the rule of law.  If the English people had only given Article 39 to the world, they would still have our gratitude.  What this clause says is that liberty and property are not to be interfered with without due process of law.  The phrase ‘due process’ enters into later versions of the Charter, and ‘due process’ is the concept that underlies much of the Bill of Rights in the United States. 

If you borrow money for a company and default on repayment, the bank may send in a receiver over the business.  There are difficulties about suing kings – what form of security, then, did the barons get from their faithless king?  I said elsewhere:

They favoured the receiver model.  Article 61 refers expressly to security (securitas) and it is in horrific terms that not even the most over-mighty and overbearing corporation, outside of Russia, would dare to seek.  It provides that if the king defaults, the barons can give him a notice to remedy that default.  If he does not, a committee of twenty-five barons ‘together with the community of the entire country, shall distress and injure us in all ways possible – namely, by capturing our castles lands and possessions and in all ways that they can – until they secure redress according to their own decision, saving our person and the person of our queen, and the persons of our children.’  Well, that is fine for the royal family, but what about the poor downstairs maid when that awful Robert de Ros, neither alone nor palely loitering, comes thundering over the drawbridge, leaving his chain mail behind him, in one of his beastly marauding moods, and holding something large and nasty in his hand? 

….. The right of entry is given to a committee of barons ‘together with the community of the entire country’….  Communis is a very, very potent term here (as would be communio in a church).  When the French monarchy was brought down in and after 1789, the government of the country for a large part came to rest with the commune of Paris, especially after the 10 August coup of Danton (in 1792).  The revolutions that shook the great cities of Europe in 1848 were centred in the communes.  A movement in favour of revolutionary change across the entire world to free the masses of their chains, which would cause so much misery in the twentieth century, was called the Communist Party after these communes.  Yet here we have English barons giving these communal rights to the yeomen and all the freemen of England way back in 1215.

You cannot try to make a constitution in a vacuum.  You need at least two things – a body of existing law that commands the assent if not the respect of a majority of the people; and a body of judges to interpret and enforce those laws.  It looks like only England had those qualifications then.  Remember that England was developing the first profession outside the church.  It was this profession – including the judges in that term – that would celebrate and nurture Magna Carta so that it would become ‘with all its faults a kind of sacred text, the nearest approach to an irrepealable fundamental statute that England has ever had.’  The reference to sacred text from the sober legal historian Maitland tells us something.  In order effectively to nurture a constitution, you need some kind of faith based on experience.  We call it tradition.

Being a rat, King John straight away sent to Rome and got the Charter quashed.  Exhibit A in the duress plea was the default clause – which was decently omitted from later versions.  But the Charter kept getting reinstated. 

What was its real significance?  The king had to negotiate with his subjects in order to rule.  He derived his authority not from God, but from the consent of the people revealed by this contract.  That is why this is the most consequential document in the history of the world that was not said to have derived from God.  And the significance of that liberation is on show in the play King John.

English legal historians tend to be coy about the role of contract in their and our history.  But if the great shift has been from status to contract, as Sir Henry Maine said, then the Charter is its first great manifestation.  And there is common ground that the Reformation in England had nothing to do with religion.  It was all about political power, and in that it was a triumph.  (Whereas in Germany, it was all about religion, and in that it was a political disaster.)  If you want to see the effect of this liberation on England, compare the later histories of France, Italy, and Spain to those of England and Holland. 

And the role of Magna Carta and the Reformation confirms my abiding impression that the rule of law comes down to little more than a state of mind that comes out the process of the common law so that the waters of Runnymede feed into those of the Campaspe.



Samuel Beckett (1952)

Folio Society, 2000; illustrations by Tom Phillips; bound in illustrated cream boards with olive slipcase.

This play is an interesting litmus test for the would-be literati or cognoscenti.  It is one thing for you to have a copy in your library; it is another thing to say that you have seen the play in production (where, as one critic said nothing happens – twice); but you really take the prize if you can claim both of the above – and that you understood it!  You go straight to the top of the honours class if you are aware of the following dialogue between Kenneth Tynan and Jean Paul-Sartre (which tells you about all you need to know about Sartre).

TYNAN: You once said that you admired Waiting for Godot more than any other play since 1945.

SARTRE: That is true.  I have not liked Beckett’s other plays, particularly Endgame, because I find the symbolism far too inflated, far too naked.  And although Godot is certainly not a right wing play, it represents a sort of universal pessimism that appeals to right wing people.  For that reason, although I admire it, I have reservations.  But precisely because its content is somewhat alien to me, I can’t help admiring it the more.

Sometimes you wonder how France survives its intellectuals.

Samuel Beckett was born into a comfortable Anglican family in Dublin in 1906.  He took a degree at Trinity College, where he played first class cricket, and he then taught in France.  There he came under the aegis of James Joyce.  He took up permanent residence in France, and during the war served in the Resistance for which he was awarded the Croix de Guerre (which, with cricket, distinguishes him from Sartre).  On visiting his mother after the war he had something of an epiphany.   He decided that his path would be different to that of Joyce. 

This play was first published in 1952.  After a rocky start, it gained popular and critical acceptance.  Beckett was awarded the Nobel Prize and he rewarded himself with a modest quota of mistresses.  He died in 1989 and was buried in the Cimitière du Montparnasse.  He was a leading light in what is called the theatre of the absurd.

Two characters called Vladimir and Estragon, in a minimalist set, are waiting for someone called Godot.  While they wait – Godot never comes – they muse and squabble, and three other lesser characters intervene.  The script is such as to have driven actors nearly mad when they asked the author what it really meant, and critics have differed wildly about what it stands for.  Beckett got to be relaxed about this as it was obviously a driving force behind the success of the play.  At its Australian premiere in 1957, Barry Humphries played Estragon.

Here is the set: ‘A country road.  A tree.  Evening.’  The writer was not paid by volume.  Early in the dialogue, Vladimir says: ‘One of the thieves was saved.  It’s a reasonable percentage.’  There has been no prior reference to the crucifixion.

Vladimir: Suppose we repented.

Estragon: Repented what?

Vladimir: Oh….  (He reflects.)  We wouldn’t have to go into the details.

Estragon: Our being born?…..

Vladimir: You should have been a poet.

Estragon: I was.  (Gesture towards his rags.)  Isn’t that obvious?

So, the humour is Irish and black.

Vladimir: What do we do now?

Estragon: Wait.

Vladimir: Yes, but while waiting.

Estragon: What about hanging ourselves?

Vladimir: Hmm.  It’d give us an erection!

Estragon: (highly excited).  An erection!

Vladimir: With all that follows…..

Estragon: Let’s hang ourselves immediately.

Toward the end of Act I we get:

Vladimir: But you can’t go barefoot!

Estragon: Christ did.

Vladimir: Christ!  What’s Christ got to do with it?  You’re not going to compare yourself to Christ!

Estragon: All my life I have compared myself to him.

Vladimir: But where he lived, it was warm, it was dry!

Estragon: Yes, and they crucified quick…….I wonder if we wouldn’t have been better off alone, each one for himself….We weren’t made for the same road.

Vladimir: (without anger).  It’s not certain.

Estragon: No, nothing is certain.

Near the end of Act II we get:

Vladimir: What are we doing here, that is the question….We have kept our appointment, and that’s an end to that.  We are not saints but we have kept our appointment.  How many people can boast as much……?

Estragon: (aphoristic for once): We are all born mad.  Some remain so.

The illustrator of the Folio Edition, Tom Phillips, featured bowler hats in his work.  He said that he borrowed them from stills of Laurel and Hardy, ‘the cinematic precursors of Pozzo and Lucky’.  The play was written before the Goons came out, but it would be interesting to know if it had any impact on Joseph Heller before he wrote Catch 22.

Well, like oysters, you will either like this play or not.  But there is no doubting its impact, and if you get it, your intellectual standing will take right off.

Passing Bull 261 – The business of sport

Out of solicitude for my mental health, I have stayed away from the gongs announced on this dreadful dies non, but two items caught my eye today in the sports pages.  One concerned Mr Toby Price, the two time winner of the Dakar, the toughest contest on the planet.  They will have to invent a new word for courage for him – in hospital again with a broken body. 

The other concerns our PM who is increasingly looking like a strolling player in search of a sandwich board.  He said something very silly about sport and politics.  Politicians, especially those of the crude, retail populist kind – like ScoMo – just love mixing with sportsmen.  Remember Our Bob on the America’s Cup?  Paul Keating number 1 at Collingwood?   

But like the IPA on corporations, ScoMo thinks sports bodies should not have views on politics.  You do not have to live in a small town to realise that if you want to get on in business, you have to engage with people.  That’s what Cricket Australia did about this sad day’s name, and our PM said he thought they should prefer sport to politics.  I am not sure if the New South Welshman knows of Mr Adam Goodes, but Mr Gideon Haigh correctly analysed the bullshit.

The either/or foundation is of course perfectly fallacious.  Sport is pervaded by politics, especially when sports teams purport to represent whole nations, and beloved of politicians, who envy its capacity for engaging, exciting and unifying…..Which is exactly why Morrison flaunts his democratic credentials by cosying up to sports people …..So when the Prime Minister objects to the mixing of cricket and politics, what he is really objecting to is the particular mixing that doesn’t shore up his national daggy dad routine.  And when he says that it ‘wasn’t a particularly flash day for those people on those vessels’ of the First Fleet, it’s not just a lazy stab at moral equivalence, but the same tone-deaf approximation of the vernacular as Kevin Rudd demanding a ‘fair shake of the sauce bottle.’

Precisely, Mr Haigh.  Get a new gag writer, ScoMo.  The Mayflower at Plymouth Rock was more your go.  Puritans to their bloody eyeballs, but they never let God stand between them and a dollar.  That’s why your old mate Donny Boy is still so flush, and in with the chosen, God’s elect.  Just live for the Sharks of Cronulla on Saturdays and Hillsong on Sundays.  You bloody ripper, Mate.


It is hard to see what the world did wrong to land Rupert.  The Oz editorial yesterday counselled Mr Biden to be prudent and concluded:

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

There in one sentence is the accumulated venom of Rupert Murdoch.

The Australian, 25 January, 2021

Passing Bull 260 – They are not us

Dear Editor (New York Times),

Americans who say that those who violated the Capitol are not ‘us’ forget history.  The nation was conceived in violence.   The war against the English was also a civil war that Churchill compared to atrocities in Ireland.  The founding document was based on a lie about equality.  600,000 Americans died in an attempt to extirpate that lie.  This President could not believe a black president could be American. He has cheered on white violence and condemned black protests.  And this nation uniquely celebrates a constitutional right to bear arms.  The purpose of a gun is to inflict violent harm.  So, Americans, don’t say you’re not violent.  It’s in your blood. 

The divide between black and white led to the Civil War and Black Wednesday.  Those who razed the Bastille cherished equality;  those who stormed the Capitol dread it.  The question you face was stated at Gettysburg  by the greatest American –  ‘whether a new nation,conceived in liberty, and dedicated to the proposition that all men are created equal… can long endure’.

Yours truly


Donald Trump finishes his astonishing term as president in utter ignominy.  His behaviour since he lost the presidential election on November 3 has been far worse than anything he did as president….Trump was always a contemptible and unworthy character.  For any serious conservative, voting for him was always a 51-49 decision.

Greg Sheridan, Weekend Australian, January 9-10, 2021.

Where to start?  What does ‘conservative’ mean there, ‘serious’ or not?  What is there 50/50 about someone who has always been ‘contemptible’ and ‘unworthy’?  This proprietor does warp minds.  The Wall Street Journal broke ranks and said Trump should resign.  Since this is about 1000 to 1, the next question is what should otherwise happen?  They give no answer, although they concede that ‘Trump’s character flaws were apparent for all to see when he ran for president.’  Then the WSJ reveals the house flaw when it says that the 2019 impeachment was an abuse of process that has diminished Democrats’ credibility.  The alternative view is that that impeachment was a lay down misère which only failed because Republicans did not do their duty, and that the U S and the world are now much worse off because of their failure.  And, given that Trump is contemptible and a man whose character flaws are notorious, their failure is inexcusable.

Here and there – Milton on Trump’s Washington – Paradise Lost

Quite by chance a couple of days ago, I started to listen again, with text in hand, to Paradise Lost so gorgeously read by Anton Lesser.  It is ravishing – if you forget the theology, which is awful.  Every time I listen to it or read it, I wonder why Satan is the star of the show.  But the events in Washington yesterday reminded me of the title.  And some of the lines look to bear directly on the gruesome convulsions of America at this solemn hour.

The following look good for those made cowards by Trump.

The conquered also, and enslaved by war,
Shall, with their freedom lost, all virtue lose
And fear of God; from whom their piety feigned
In sharp contest of battle found no aid
Against invaders; therefore, cooled in zeal,
Thenceforth shall practice how to live secure,
Worldly or dissolute, on what their lords
Shall leave them to enjoy; for the earth shall bear
More than enough, that temperance may be tried:
So all shall turn degenerate, all depraved;
Justice and temperance, truth and faith, forgot.

No prizes for this one.

……..till one shall rise
Of proud ambitious heart; who, not content
With fair equality, fraternal state,
Will arrogate dominion undeserved
Over his brethren, and quite dispossess
Concord and law of nature from the earth;
Hunting (and men not beasts shall be his game)
With war, and hostile snare, such as refuse
Subjection to his empire tyrannous:
A mighty hunter thence he shall be styled
Before the Lord; as in despite of Heaven,
Or from Heaven, claiming second sovranty;
And from rebellion shall derive his name,
Though of rebellion others he accuse.

This seems apt for the Republicans.

Since thy original lapse, true liberty
Is lost, which always with right reason dwells
Twinned, and from her hath no dividual being:
Reason in man obscured, or not obeyed,
Immediately inordinate desires,
And upstart passions, catch the government
From reason; and to servitude reduce
Man, till then free. Therefore, since he permits
Within himself unworthy powers to reign
Over free reason, God, in judgement just,
Subjects him from without to violent lords;
Who oft as undeservedly enthrall
His outward freedom: Tyranny must be;
Though to the tyrant thereby no excuse.
Yet sometimes nations will decline so low
From virtue, which is reason, that no wrong,
But justice, and some fatal curse annexed,
Deprives them of their outward liberty;
Their inward lost….

But here is the bell-ringer.  My new Public Enemy Number 1 – which, given the competition, is a mighty achievement – Ted Cruz.  Trump is just an illiterate spoiled child who was never taught better or brought to heel.  It’s not that he did not go to discipline school – he was never house trained.  Ted Cruz – and his younger dreadful fist-bearing lieutenant – do not have that excuse.  I am told that they had glittering careers as young lawyers.  I know just the type.  High IQ and zero judgment.  And, after lives spent in front of mirrors, the last people you would want to have behind you in an Indian tiger hunt.

Faithful to whom? to thy rebellious crew?
Army of Fiends, fit body to fit head.
Was this your discipline and faith engaged,
Your military obedience, to dissolve
Allegiance to the acknowledged Power supreme?
And thou, sly hypocrite, who now wouldst seem
Patron of liberty, who more than thou
Once fawned, and cringed, and servilely adored
Heaven’s awful Monarch? wherefore, but in hope
To dispossess him, and thyself to reign?

There you have Teddy Boy to a tee – fawning and cringing servilely – the lowest form of life to crawl out from under a rock.

Passing Bull 258 – Good bye to 2020 – the return of the bogey man – and Happy Christmas

The Presidency of Donald Trump and the events of 2020 have seen the return of the bogeyman and of conspiracy theories for those who take their news to suit themselves.  Catholics, Masons and Jesuits have fallen out of favour as scapegoats.  Stalin had the kulaks.  Mussolini had effete liberals.  Franco had the Communists and atheists.  So did Senator McCarthy; and, to a lesser extent, Sir Robert Gordon Menzies.  It is best to pass over Hitler in silence.  As of now (December, 2020), many Australians seem to be seeking a reprise of the White Australia Policy with vitriol against the Chinese.  Their anxiety is made worse because President Trump appears to have abdicated in favour of President Xi, or, on a bad day, Chairman Kim.  (Do you remember when Trump said that he and Kim had fallen in love?  Neither could even spell ‘reciprocal’ so the ending had to be sour rather than sweet.)  Renegade doctors blame Big Pharma.  (Well, who wouldn’t?)  The Murdoch Press has the Premier of Victoria, who is stubbornly refusing to lie down, Muslims and other victims of a civilisation that is not deemed to be Western (although all the major religions of the West come from the East), scientists who peskily worry about their findings, and anyone whose ideology allows them to be sane about saving human life from a mortal illness.  This last is a form of madness imported by those on the Murdoch edge directly from their brothers and sisters at Fox News and is particularly sought after by those whose minds have been launched into eternity on one-way tramlines coming straight out of sullen think tanks.  Their rallying cry was given by a Governor of one of the stricken Dakotas: ‘My people are happy because they are free.’  (Well, yes, m ’Lady, they are also dying, but what’s a spot of death between Comrades of the Pure in Spirit?)  And all of us have all that modern technology and those dreadful pretty boys who have got so filthily rich on our debasement.  So that when you get China, high tech that is all-invasive, and a big corporation that is all-pervasive, you get Open Sesame for the Conspiracy Theorists’ Dream Team.  What, then, about the outgoing President of the U S A?  It’s a veritable smorgasbord.  (His family did come from that part of the world, but he lies about that, too.)  He has the Muslims, the Mexicans, the migrants, the media – or just about all of it, including now Fox News – the Ivy League set, the military, the FBI, the CIA, the medical profession and any other scientist, and any activist, that is any person who threatens his view of law and order, or who threatens to demean a photo op of his standing before a church, that he has never been inside, with a silly look on his face, holding a book that he has never read and could not understand, the way having been made safe for him and his ensainted daughter and her handbag by the Army of the United States in full battle gear.  And above all, he has it in for any person who is better educated than him.  Since this includes almost everyone else in America, it is a very big problem indeed – not least because the most educated person of the whole bloody lot of them was a man of colour with a wife who can think, both of whom in a moment of madness the people of America put into that bloody white house on Pennsylvania Avenue.  It just goes to prove that old saying – even paranoiacs have real enemies.

And very best wishes for Christmas and 2021 – and no one is sorry to say good bye to 2020 – and at least we are still above the ground – and, yes, Australians picked a good time to do the right thing for all of us.

Passing Bull 257 –Unquestionably vague

We would be better off – much better off – if we did not use words like ‘misogynistic’ or ‘anti-Semitic’.  One refers to an adverse view of women and the other refers to an adverse view of Jewish people.  But each term is used adversely to its subject and the range of conduct that might give rise to such a comment is so wide that such a comment is likely to be as unfair as it is vague. When I say that words like ‘misogynistic’ and ‘anti-Semitic’ are used adversely to their subject, I mean that we think it is wrong for people to assess the character of a person by reference to what some might see as the characteristics of other people from the same group – like women or Jewish people.  Decent people do not judge others by stereotypes.

Yesterday Mr Henry Ergas published a column headed ‘Why casual bigotry of Obama’s slur must be called out’.  The memoir of Mr Barack Obama referred to Mr Nicholas Sarkozy as ‘a quarter Greek Jew’.  He has ‘dark, expressive Mediterranean features’ resembling the figures of ‘a Toulouse – Lautrec painting’ and ‘all emotional outbursts and overblown rhetoric’ reflecting unbridled ambition and incessant pushiness’ while his conversation ‘swoops from flattery to genuine insight.’  These comments, which seem to me to be fair, leaped out at Mr Ergas and led him to compare those remarks to the insults ‘notoriously hurled at Benjamin Disraeli, the first person of Jewish birth to become Britain’s prime minister.’  (I might make two observations.  First, I greatly admire both Disraeli and Obama as statesmen of great character; one reason for my admiration is that both had to overcome real prejudice to get where they did.  Secondly, only one epithet leaped out of the page for Mr Ergas – ‘Greek’ and ‘Mediterranean’ apparently made no impact on Mr Ergas at all.)  Then we get:

…..if anti-Semitism involves using the label ‘Jew’ to evoke, emphasis or explain an inter-related complex of unattractive attributes, as Gordon Allport suggested in his classic book on The Nature of Prejudice (1954), Obama’s snide description of Sarkozy is unquestionably anti-Semitic.

Now, one might dismiss that as a mere blemish in an extremely lengthy volume.  It is however indisputable that had Sarkozy’s flaw been that he was black, gay, or Muslim, each with its associated stereotypes, the slur would have unleashed storms of protest…..In reality, the only roar was of a deafening silence.  From the New York Times to The Washington Post and beyond, not one of the gushing reviews considered Obama’s statement even worth mentioning.

In part that reflects the normalisation of casual anti-Semitism on the ‘progressive’ side of politics.

Mr Ergas went on to refer to a column by Mr Bret Stephens (whom I much admire) in the Times linking anti-Semitism to the criticism of Israel and anti-Zionism in ‘the left-leading media.’

Yet the left’s problem with Jews goes well beyond the blurring of the lines between criticism of Israel and anti-Semitism.

He went on to refer to the benefits conferred by religion – principally for the West it seems, although both relevant faiths came from the East – and makes two further criticisms of ‘the left’ and says that it and Mr Obama are ‘trivialising faith.’

So Mr Ergas says that Mr Obama cast a ‘slur’ on Mr Sarkozy, that the epithet ‘quarter Greek Jew’ ascribed a ‘flaw’ to Mr Sarkozy, and that in its context that epithet entails the conclusion that Mr Obama used the label ‘Jew’ to ‘evoke, emphasise or explain an inter-related complex of unattractive attributes.’  And what is more – that conclusion is unquestionable, indeed indisputable.

The short answer is that the matters of fact alleged by Mr Ergas against Mr Obama are not in my view sufficient to warrant the conclusion that is alleged.  And, after all, what is being alleged is a slur on Mr Obama that entails that his character suffers from a serious flaw.  You may recall that Mr Ergas says that ‘had Sarkozy’s flaw been that he was black, gay, or Muslim, each with its associated stereotypes, the slur would have unleashed storms of protest…’  It does look like the position of Mr Ergas may be circular – he appears to be saying that by describing someone as Jewish, you are invoking the stereotypes that come with that label.  You might also recall that the terms ‘Greek’ or ‘Mediterranean’ don’t apparently come with same heavy baggage.

But in my view, there is more than a non sequitur here.  How does Mr Ergas arrive at his conclusion against Mr Obama?  He comes to that conclusion because this is just what he has come to expect from a person who belongs to or comes from the ‘left’ or ‘progressive’ side of politics.  Neither of those terms is defined, and both are vague, but to adopt what I said above –

When I say that words like ‘misogynistic’ and ‘anti-Semitic’ are used adversely to their subject, I mean that we think it is wrong for people to assess the character of a person by reference to what some might see as the characteristics of other people from the same group – like women or Jewish people.  Decent people do not judge others by stereotypes.

In other words, Mr Ergas can only support his conclusion adverse to Mr Obama by resorting to exactly the kind of prejudice that he alleges against Mr Obama.

Indeed, what we have is a good example of the kind of commentary that disfigures our public life now – an adverse conclusion based on inadequate evidence; a conclusion alleged with total confidence; an absence of restraint; a one-sided and coloured view in a battle of us versus them; we are right and they are wrong; and appeals to mythical history.

In other words, we have a celebration of prejudice.  I will not therefore comment on the venomously dangerous suggestion that an adverse comment on Israel or Mr Netanyahu may warrant a charge of anti-Semitism. It is all very sad, but some readers apparently go for this sort of stuff.  The letters of congratulation have started already

King John and the Laws of England

Part I

Macaulay did not like Strafford.  He called Strafford ‘the first of the rats’.  Well, Strafford did really frighten the English, and they were desperate to kill him – which they did by means that even Macaulay and Churchill conceded were outside the law – and definitely not cricket.  But for raw shiftiness, Strafford was no match for King John.  ‘Shifty’ is the right epithet here.  You see it in the famous El Greco portrait of the Inquisitor.  When Sir Jack Plumb came to describe the advent of the Hanoverian kings, he said that they came full of apprehension because their future subjects had a reputation throughout Europe for being shifty.  The most famous speech in the play King John is about commodity – that is the wilful expediency, egoism, opportunism and compromise that the English associated with a ‘trimmer,’ those who trim their sales to go with the flow, and which causes us to turn away from politics.  It’s what politicians show when we say that they are being shifty.  John Masefield thought that the play was about treachery.  We would call it a study in back-stabbing.  That is a frightful illness that this nation has succumbed to as one prime minister after another was coarsely stabbed in the back.

But when we look at King John now, we see the seeds of two great movements in the laws and constitution of England – Magna Carta and the rule of law, and the Reformation and religious Home Rule for England.  While looking at these, you need to recall that they took place while the English lawyers and judges were developing that body of case law that we call the common law.  That law would underlie the whole stupendous fabric, so that our greatest jurist, Sir Owen Dixon, could deliver a paper entitled The Common Law as an Ultimate Constitutional Foundation.  The English constitution is part of the common law.  (That is not the case in the United States.)

The play is about the sources of power.  A king has died.  Should the succession go to the next brother (John) or the son of the deceased (Arthur)?  France backs the latter.  It and England are on the point of going to war about it.  They patch up their differences with a fortuitous marriage after breaking the world land speed record in courtship.  But the Pope has it in for King John over a dispute about the next Archbishop of Canterbury.  His emissary, Pandulf, bounces the ball by addressing the kings as ‘anointed deputies of heaven’ – and he is peremptory:

I Pandulph, of fair Milan cardinal,
And from Pope Innocent the legate here,
Do in his name religiously demand
Why thou against the church, our holy mother,
So wilfully dost spurn; and force perforce
Keep Stephen Langton, chosen archbishop
Of Canterbury, from that holy see?
This, in our foresaid holy father’s name,
Pope Innocent, I do demand of thee. (3.1.64-73)

England (King John) responds:

What earthy name to interrogatories
Can task the free breath of a sacred king?
Thou canst not, cardinal, devise a name
So slight, unworthy and ridiculous,
To charge me to an answer, as the pope.
Tell him this tale; and from the mouth of England
Add thus much more, that no Italian priest
Shall tithe or toll in our dominions;
But as we, under heaven, are supreme head,
So under Him that great supremacy,
Where we do reign, we will alone uphold,
Without the assistance of a mortal hand:….(3.1.74-84)

Pandulf excommunicates King John on the spot and offers sainthood to his killer. 

The play came out less than ten years after the Armada (and two scenes later we get a reference to a scattered armada).  So, all this Catholic bashing would have been blood to a tiger for Queen Elizabeth and her loving subjects.  The Spanish would have been driven by God to burn this heretic, so that when this brave woman made her great speech at Tilbury, she had what Americans call ‘skin in the game.’ 

The Elizabethan reaction would have been raucous, but when I saw this play at the Barbican about a quarter of a century ago, the locals allowed themselves an audible frisson during this scene.  They were all talking about it at interval.  (I was most impressed.  These were the people and this was the city that stopped Hitler.  Herr Von Ribbentrop could hardly have arrived on stage with more éclat.)  Shakespeare was very kind to Queen Katherine in Henry VIII, but Pandulf gets it right down the front, both barrels.  He talks the French out of their alliance ‘to be the champion of our church’, leading the locals to revile ‘the curse of Rome.’  War preparations are resumed, and King John resolves to have the boy Arthur murdered.  And all this misery comes at the behest of a foreign potentate about a disputed succession – not to the English Crown but one English holy see.

Pandulf is oily and insidious.  He is loaded with the prevarications that the Elizabethans saw in the Jesuits.  With God and Innocent III behind him, he treats both kings like his deputies, just as Napoleon would treat them like chess pieces.  Pandulf is the puppeteer on the cover of The Godfather.  ‘Sovereignty’ is a blighted term, but while Pandulf was abroad, the kings of Europe and England saw theirs decapitated.  Pandulf is stalking proof of Protestant propaganda of the danger of breaking the biblical injunction against a servant having two masters.

What has this to do with the Reformation?  Other countries in Europe would be prepared to tolerate this interference in their nation’s governance, but not England.  Henry VIII seceded because the Pope was standing in the way of his securing his succession – a most vital function of a king.  By contrast, King John surrendered his kingdom to Pope Innocent under a bond of fealty and homage for which he was to pay an annual tribute to the Holy See.  That looks like a protection racket, Mafia style.  The Oxford History remarks that this hardly gave rise to adverse comment at the time: ‘It was only later generations with bitter experience of papal control that denounced the transaction in violent language.’  Other kings had acknowledged the feudal superiority at Rome, but the Tudors would look back at this time, and the problems with Becket, as the foundation of their drive to independence – if not liberation.  When the end came for the Vatican in England, it might remind us of what Gibbon said about the fall of Rome – the wonder was not that it happened, but that it had gone on for so long.

You will have seen that the author has King John refer to ‘that great supremacy where we do reign.’  I have no doubt that this was a deliberate allusion to one of the acts of parliament that secured the divorce from Rome.  The Act of Supremacy begins –

Where by divers sundry old authentic histories and chronicles, it is manifestly declared and expressed that this realm of England is an empire, and so hath been accepted in the world, governed by one supreme head and king having the dignity and royal estate of the imperial crown of the same….

This was standard practice for English propaganda.  In building the common law, the judges resorted to legal ‘fictions’ to help get around road blocks set up by precedent cases and forms.  They were not so different when legislating.  Revolutionary changes would be described as simply affirmations of past customs, beliefs and laws.  So they begin by saying that their realm has always been accepted as an empire – the ruler of which can have no superior.  Well, King John plainly had a superior – but why rest on aberrations?

Shakespeare would show that he was alive to the issue.  When the French herald came to deliver the message of his king to King Henry V of England before Agincourt, he said that the French could have dealt with Harry at Harfleur, but that ‘now we speak upon our cue, and our voice is imperial: England shall repent his folly’.  A little later that night, Harry moved among the sad and depleted English troops in disguise – ‘a little touch of Harry in the night.’  ‘What are you?’ the king asks.  Pistol – a swaggering drunk – replies ‘As good a gentleman as the emperor’.  This leads the king to say: ‘Then you are better than the king.’

So, the English asserted their supremacy over the Church of Rome.  They did so through their parliament.  This was too big a job for a king alone.  The next phase of their history was in establishing the supremacy of the parliament over the king.  That process would be more or less complete by 1689, after what they call the Glorious Revolution.  It started with what we call Magna Carta in 1215.  The progress led to the form of government that we enjoy today.  There was nothing like it anywhere else in the world.  When the Americans affirmed their supremacy over the English Crown they simply used English precedents as their templates.


[These are serialised extracts of all the fifty books referred to in a book as yet unpublished called ‘My Second Top Shelf, or What Used to be Called a Liberal Education’. The content of these may change before further publication.]


Mark Twain, 1884

The Library of America, 1982; composite volume ‘Mississippi Writings’; bound in cloth boards, and slip case; the volume includes three other works, including The Adventures of Tom Sawyer.

You don’t know about me, without you have read a book by the name of ‘The Adventures of Tom Sawyer’, but that ain’t no matter.  That book was made by Mr Mark Twain, and he told the truth mainly.  There was things which he stretched, but mainly he told the truth.  That is nothing.  I never seen anybody but lied, one time or another, without it was Aunt Polly, or the widow, or maybe Mary Aunt Polly – tom’s Aunt Polly, she is – and Mary, and the Widow Douglas, is all told about in that book – which is mostly a true book; with some stretchers, as I said before.

That’s how this novel starts.  Huck then has supper with the widow.

After the supper she got out her book and learned me about Moses and the Bulrushers; and I was in sweat to find out all about him; but by-and-by she let it out that Moses had been dead a considerable time; so then I didn’t care no more about him; because I don’t take no stock in dead people.

This book is about the friendship between two people, Huck and Jim, who are both fugitives – Huck is fleeing from one beastly white man, his father; Jim is a Negro who is fleeing from all white men.  They are both, if you like, refugees – but Jim’s condition is pitiful and illegal, while Huck is troubled that he is assisting Jim to escape – it is like aiding a thief. 

The hypocrisy shocks us now.  One lady, quite possibly one of an ‘evangelical’ disposition, feels sorry for and takes pity for someone she believes to be a runaway apprentice – Huck – but boasts about unleashing the dogs on a runaway slave – Jim.  Twain said that ‘a sound heart is a surer guide than an ill-trained conscience,’ and he certainly got that right.

Three things will trike you quickly about this book – it is a ripper of a yarn; it is written in a graphic vernacular; and it tells home truths about America as it was – and, sadly, still is. 

On each of those grounds, it is a wonder that T S Eliot was a fan.  And he was more than just a fan.

The Adventures of Huckleberry Finn is the only one of Mark Twain’s various books which can be called a masterpiece….Huck Finn is alone: there is no more solitary character in fiction.  The fact that he has a father only emphasizes his loneliness; and he views his father with a terrifying detachment.  So we come to see Huck himself in the end as one of the permanent symbolic figures of fiction; not unworthy to take a place with Ulysses, Faust, Don Quixote, Don Juan, Hamlet and other great discoveries that man has made about himself.

Well, there you go – none of those five characters – or ‘permanent symbolic features of fiction’ – is a bottom-feeder.  Each is, apparently, a great discovery that man has made about himself.

Some of the most hilarious passages in the book concern two grifters known as the King and the Duke – David Garrick the Younger and Edmund Kean the Elder – who scam hillbilly towns by posing as actors.  They have a killer merchandising card: ‘LADIES AND CHILDREN NOT ADMITTED.’  That really winds up the locals.  (Before the election of Trump, you may have thought that kind of mockery was over the top.)

But how could they leave Jim on his own on the raft on the Mississippi when any number of people would rush to seize him for the reward?

He was uncommon bright, the duke was, and he soon struck it.  He dressed Jim up in King Lear’s outfit – it was a long curtain calico gown, and white horse-hair wig and whiskers; and then he took his theatre paint and painted Jim’ s face and hands and ears and neck all over a dead dull solid blue, like a man that’s been drownded nine days.  Blamed if he warn’t the horriblest looking outrage I ever see.  Then the duke took and wrote a sign on a shingle so –

Sick Arab – but harmless when not out of his head.

And he nailed that shingle to a lath, and stood the lath up four or five foot in front of the wigwam.  Jim was satisfied.

Heartless or malicious people can’t write like that.  It is therefore sad – if perhaps not surprising – that some members of the American academic establishment think this book is ‘racist’ and that it should be banned from schools or the like. 

Some get exercised over the repeat use of the word ‘nigger’.  It is not a good idea to try to resolve issues of moment by recourse to labels.  It is as hard for me to think that the author of Huckleberry Finn was loaded against black Americans as it is hard for me to think that the author of Kim was loaded against the peoples of India.  The whole of the book in each case refutes the allegation.  Rather, in my view, the charge reflects a prejudice in the mind of the person making it. 

The two novels have a lot in common.  The hero of each is a boy.  He falls in with a man who is older than him and who is of a different race and a different world.  They embark on a journey, physically and morally.  The novel is about their coming together – like Don Quixote and Sancho Panza.  If we were a little less Anglo-Saxon about all this, we might even say that this was a love story. 

However that may be, Huckleberry Finn, like the other two novels just mentioned, is a testament to humanity that can stand however many readings you need for a decent fix.  So, read it say once a year – as Faulkner said that he did with Don Quixote – and leave those dreary drongos to strain like gnats at a camel.

Here then is T S Eliot again, a man not given to sweeping praise.

What is obvious … is the pathos and dignity of Jim, and this is moving enough; but what I find still more disturbing, and still more unusual in literature, is the pathos and dignity of the boy, when reminded so humbly and humiliatingly, that his position in the world is not that of other boys, entitled from time to time to a practical joke; but that he must bear, and bear alone, the responsibility of a man.  It is Huck who gives the book style. The River gives the book its form.….

And it is as impossible for Huck as for the River to have a beginning or end — a career. So the book has the right, the only possible concluding sentence. I do not think that any book ever written ends more certainly with the right words:

‘But I reckon I got to light out for the Territory ahead of the rest, because Aunt Sally she’s going to adopt me and civilize me, and I can’t stand it. I been there before’.

I wonder if Ken Kesey had that ending in mind when he ended One Flew Over the Cuckoo’s Nest with the words: ‘I been away a long time.’

The dreamtime of a ghost-seer

Reflections on the law and other things by a lawyer in autumn

(Serial form)

After reading another biography of the English statesman and jurist, Lord Haldane, and being reminded that he was trained at Edinburgh and Gottingen in philosophy, I bought a volume that he wrote on the subject.  It is called The Pathway to Reality, and it contains the Gifford Lectures he gave at St Andrews in 1902-1903.  This was a time when English philosophy was heavily influenced by German idealism.  Haldane was right into the metaphysics of Hegel.  Very few read Hegel now, and even fewer could understand it if they did.  But this book now comes not just from a different time, but a completely different world.  Here is an example – picked at random (from the third lecture):

The problem of Philosophy may be defined to be to find the highest categories under which to think individual actuality, and to get the most adequate and complete conception of it.  So alone, by this method and by no other, does it seem as though we could reach a view of God.  At the plane of experience of our everyday lives, we do not use the highest categories, because we are not in search of ultimate truth.  Our necessities, our purposes, our standpoints, are provisional and finite only, and we have no need to go beyond them in the organisation of our view of experience.

How would it be if you got on a plane for London and as you take the first sip of Scotch and soda, the guy in the seat next to you leans across and inquires eagerly: ‘Could we start, perhaps, with your conception of individual actuality?’  The whole lot is just about meaningless to us now.  We know that David Hume exploded metaphysics, and I now have a better understanding of his famous peroration.

If we take in our hand any volume; of divinity or school metaphysics, for instance; let us ask,  Does it contain any abstract reasoning concerning quantity or number? NoDoes it contain any experimental reasoning, concerning matter of fact and existence? No. Commit it then to the flames: for it can contain nothing but sophistry and illusion.

This is just another case of philosophy winding up in a cold dead end.  But I am old fashioned enough to think that training in it helps train the mind – and God knows we could use as much of that as we can get.  It certainly did not hurt Haldane.  He was a first rate jurist and statesman.


Shakespeare presents no such problem for me.  I have all the plays on video and audio cassette.  At the start of the lock-down, I bought the full set of 38 plays on CD put out by Arkangel.  It’s ridiculous.  You get the plays performed in front of you by the best Shakespearian actors in the world – by far the best – and all with perfect sound – for about $10 a play.  I am going through them – at random.  The last three I finished were Titus Andronicus, Two Gentlemen of Verona, and Pericles (with an ageing Gielgud as Gower)None of those is in his top shelf, but there is something that gets me in each one, and in spite of its wanton brutality, I have had a morbid fascination with Titus ever since I saw that marvellous film of it by Julie Taymor (1999).  Otherwise, you can just sit there and let the sound wash over you – as you might with the Goldberg Variations of Bach – even if I sit there with my mutilated Everyman volume of the text – with pencil in hand, like a conductor.  I am always struck again with the wonder of it, and I now find the musical accompaniment surprisingly important and engaging.  Last night I played the first half of Midsummer Night’s Dream.  I saw the famous 1970 RSC production in Melbourne, and I have seen it in our Botanical Gardens and in the gardens of at least two Oxford Colleges.  And I enjoyed the Hollywood version.  This is not easy to put on film, but I thought Kevin Kline was very good as a mysteriously tragic Bottom – backed by some of the big hits of Italian opera.  And I and my older daughter nearly died laughing when we saw the mechanicals, as the yokels are called, in the AO production of the Britten opera in rehearsal about thirty years ago.  The Arkangel version sounds flawless to me.  The range of the voices over four different levels of characters is something of wonder.  They speak the lines as they breathe the air.  For example, Hermia is played by Amanda Root.  (I used to wonder how she may have suffered under that name until Joe Root was made captain of England.  When I arrived at the courtyard of my college at Oxford on one occasion, a cheery English guy I had met on previous occasions told me and the rest of the motley that ‘Joe Root is not out on 180.’  I said: ‘With a bloody name like that, God might owe him one.’)  Amanda is perfect for this part; she reminded me a lot of the young lady who played Natasha in the BBC War and Peace – the gushing exuberance of a girl becoming a woman.  And apart from the mechanicals, the comedy is ultra-ripe.  There is that wonderful moment when Lysander’s blood goes up too fast in his pants and the chaste Hermia banishes him to the bushes for the night.  As it happens, that turns out to have been a serious tactical error, but you wonder how many times that scene gets played out on a park bench, or a back seat at the Moorabbin Drive-In.  Almost immediately, the now drug crazed Lysander repudiates Hermia and pants his newly found lust at Helena, and she gets the line of the night:

Wherefore was I to this keen mockery born?

When at your hands did I deserve this scorn?

We do not know if Chaplain, or the Marx Brothers, or the Goons saw this great comedy, but we do know that it was and is part of their and our heritage.  It is another example of the remark by someone – perhaps Olivier – that being with Shakespeare is like touching the face of God.  In a way that is far beyond the dreams of Hegel or Haldane.


Lawyers tend to specialise, but they should try to stay as general as they can for as long as they can.  In addition to specialising, some also confine themselves to one kind of client.  This can be very damaging.  Some people act only for insurers.  In the U S, some first amendment lawyers act only for the press. In Australia, some criminal lawyers act only for the accused – and risk getting bitter and twisted about the coppers or becoming indifferent to conduct that does serious harm to people; like psychiatrists, they risk being adversely affected by what they encounter on the job.  The worst kinds of one-sidedness that I see is in industrial relations where many operate only for employers or employees – and trade unions.  These people can end up terribly blinkered – biased or prejudiced, or politically committed.  And all those conditions are the precise opposite of being professional.  It is fundamental to our legal process that you hear both sides before forming a judgment.  In my view, lawyers should seek to apply that principle to their practice.  It is to my mind obvious that lawyers who are used to seeing both sides because they act on either side are much better equipped to look after their clients than those who only get to see issues from one perspective.  In my twelve or so years running a statutory tribunal that dealt with disciplinary issues, I frequently encountered lawyers who showed problems in dealing with either of those issues.  Because the statutory body ran an essential government service, the fire brigade, whose members belonged to a fiercely protective trade union, there were often ‘industrial’ issues which would lead to a Labor oriented firm being instructed on behalf of the union.  Then I might have an industrial law barrister in front of me.  But if the charge alleged conduct that constituted a criminal offence, I might have a lawyer from the criminal bar before me.  One day I could get some crusading union lawyer playing to the gallery and singing the union anthem – when the punter’s best interests would be served by a quiet ‘Sorry, but I promise it will not happen again.’  The conflict of interest was palpable – embarrassingly so.   Then I could get some bull-nosed crusader from the criminal bar who would decide to savage the investigating officer for old times’ sake, and then you would get a novice who would take the fifth – which is a form of suicide before such a tribunal.  These were difficult and frustrating times for me.  Because some counsel were unable to do their job professionally, the tribunal can be put in the difficult position of trying to remain neutral while juggling with the rights of the accused.  It got even worse when industrial advocates appeared.  They may have had some rough training in industrial advocacy, but that was far from being enough in that kind of tribunal.  After I had made sure that word got to the union to that effect, that practice stopped.  Something similar happened when I was told that the Crown would not brief counsel to appear before me in tax cases if they had appeared for the taxpayer.  That practice looked pernicious on more than one ground, and the Crown on advice cut it out.