Here and there – Russian war crimes and Henry V

You can see Russian war crimes ‘live’, as it were, on BBC TV.  Two Russian soldiers talk to two Ukrainian civilians, and then return and shoot them in the back.  Murder.  This murder is a war crime because it was committed in a war.  The invasion itself is a war crime – this is a war of aggression. 

The Russian response comes straight from Wonderland.

When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’ ’The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’

War crimes come up twice in Henry V. 

Harry’s father got the crown through the rebellion.  The son is worried about being infected by his father’s rebellion.  But young Harry did not have to stoop ‘to bypaths and indirect crooked ways’ to get the crown which would then sit ‘troublesome’ on his head.  Instead, for what looks to us to be a perverse reason, he chose a stunt of his own.  He would consort with low life and ‘so offend to make offense a skill’ – so that when he throws off the guise, he will look just beaut to all the world. 

That deceitful puppeteering looks grotesque to us.  The Everyman Edition refers us to Ephesians 5.7ff – ‘for ye were sometimes in darkness, but now are ye light in the Lord: walk as children of light…’

Harry will of course have to repudiate those dupes who have put their trust in him.  And they will have no remedy – because they don’t matter.  Harry is, then, a dedicated skunk.  His ratbaggery makes that of his dad look respectable.  At least Bolingbroke was taking on those who were above him.

And so, King Henry V repudiates Falstaff.  Milton may have said that ‘earth felt the wound.’  And the king gets to repeat the dose in the play named after him.  One of the motley that Harry has repudiated is Bardolph – a serious drunk with a lighthouse nose.  Bardolph has robbed a church.  For this he is to be hanged.  But surely with friends in high places, he can be saved?  Not by this stony-hearted king.

We would have all such offenders so cut off: and we give express charge, that in our marches through the country, there be nothing compelled from the villages, nothing taken but paid for, none of the French upbraided or abused in disdainful language; for when lenity and cruelty play for a kingdom, the gentler gamester is the soonest winner.

Even by the standards of Canberra, this is sickening claptrap.  It comes from the blood-crazed killer who threatened the French not with impiety, but something darker:

…. in a moment look to see
The blind and bloody soldier with foul hand
Defile the locks of your shrill-shrieking daughters;
Your fathers taken by the silver beards,
And their most reverend heads dash’d to the walls,
Your naked infants spitted upon pikes,
Whiles the mad mothers with their howls confused
Do break the clouds

Then the French kill young boys.  Fluellen says this was ‘expressly against the law of arms’.  (Which King Henry presumably did not have in mind when uttering the threats set out above).  So, the king orders his men to kill their prisoners.  War crime will be answered by war crime. 

The name of Alexander the Great comes up.  Fluellen says that in a rage, Alexander killed his friend Cleitus.  Gower says their king never killed a mate.  This opens the way for Fluellen to bring in the previous duplicity of King Henry V.

It is not well done, mark you now, take the tales out of my mouth, ere it is made and finished.  I speak but in the figures and comparisons of it: as Alexander killed his friend Cleitus, being in his ales and his cups; so also Harry Monmouth, being in his right wits and his good judgments, turned away the fat knight with the great belly-doublet: he
was full of jests, and gipes, and knaveries, and mocks; I have forgot his name.

The audience had not.  You may recall that earlier the Hostess had said that the king had killed the heart of Falstaff.

So, there are stories about war crimes spread over about seventeen hundred years.  If you go back further to the Iliad, you get the terrifying drive of Achilles – ‘the most dangerous man alive’ – that allows you to see why Shakespeare depicted him as a cold -blooded murderer – like, say, Putin – in Troilus and Cressida.

And the distortion about truth in war persists.  In their films, both Olivier and Branagh left out the order of the English king to kill prisoners.  The first film was made in war time and security dictated caution.  That was not the case with Branagh.  The omission could not be described as incidental.

It was fundamental.  The popular image of the play would put Shakespeare in the firing line with Kipling for jingoism.  Well, this playwright is not susceptible to that kind of pigeon-holing.  Life is a little more complicated – and so is war.  The suggestion that the mighty victor at Agincourt was a war criminal must give us pause.  Why, then, are we deprived of it in the films – by English directors?  Just who is the jingoist now?

At the production I saw in Stratford, they started off firing tennis balls into the crowd.  I caught one.  They were a reference to the threatening of the French after their crude response involving tennis balls (2.4).  They would be answered in ripe, royal style by Montjoy (3.6).  They are great moments of our stage.  Branagh gave the part of Exeter to his favourite – Brian Blessed – of Z Cars (‘a teddy boy in uniform’).  Christopher Ravenscroft played Montjoy.  They are both wonderful.  A great way to warm up for a Grand Final.

May I return to the Ukraine?  Putin is finding out what the English found in America, what the French found in Algeria, and what we found in Vietnam and Iraq.  The home team have so much more to fight – and die – for.  On my only visit to the Kremlin, our guide said ‘That’s the gate he came in; that’s the gate, he went out by.’  He was not talking about Adolf Hitler.  He was talking about 1812.

When the empowered French revolutionaries thought of exporting their gift of liberty, Robespierre mocked them out loud.  People, he said, will not accept ‘armed missionaries’.  Is not the contrary just ludicrous? 

Napoleon is said to have been intelligent.  On what possible basis could the Emperor of France have thought that a Russian man being bayoneted or a Russian woman being raped by a foreign invader might ask about the ideological drive of the commander of the murderer or rapist?

And we know that in these dirty wars, commenced on slender grounds, it is just a matter of time before the loathed invaders, who feel down if not plain guilty, begin to commit war crimes. 

Elsewhere, I concluded a list of the problems facing the invader with these items:

The war becomes one of exhaustion and attrition, which in turn exaggerates the above advantage of the home team.  Because of its felt superiority, its actual ignorance, and its sustained frustration, the away team resorts to atrocious behaviour that it would never be guilty of in a normal war, or against an enemy of its own kind.

And that brings us to the reasons for the English invasion set out in Henry V.  The grounds available are adumbrated – I think that’s the word – by the leading prelate – and they do look suppositious – and I know that’s the word.  People commonly giggle in the theatre.  Harry says he is reluctant, but he does not sound like it.  The church offers to chip in ‘a mighty sum’, and then the French seal it by referring to young Harry’s ‘wilder days’ – ‘you savour too much of your youth.’  It’s as if they have fallen into the trap that young Harry laid for Falstaff and the cockneys!  Was any of the stuff being parroted by these sycophantic courtiers worth what Bismarck called ‘the bones of one Pomeranian grenadier’? 

What I see here is a war undertaken to feed men’s egos and wallets.  That’s common. 

The view of the common man is represented by Williams.  When the king says that his cause is just and his ‘quarrel honourable’ – a difficult notion for us – Williams says ‘That’s more than what we know’.  And when Harry says that he has heard that the king said he would not be ransomed, Williams gives what I might call the traditional response of a commoner to Majesty: ‘And he said so, to make us fight cheerfully; but when our throats are cut, he may be ransomed, and we ne’er the wiser.’  A Tommy may have said that to Haigh, but not to Churchill.  And Majesty has no answer. 

But the king again resorts to deception in dealing with commoners.  And Williams takes the point and the match: ‘Your Majesty came not like yourself; you appeared to me but as a common man…’  What drove Harry to this deception?  We know all about it from the time Harry put on the mask of deception at the start of the series.

Well, the issue of the casus belli in Henry V is not as plain as the head of the CIA telling the leader of the free world that the weapons of mass destruction were a ‘slam dunk.’  But this playwright was rarely obtuse.  Men, women and children get gobbled up in war.  The playwright gently reminds us that this is not something to giggle about – or even wave a flag about. 

What then do we see of Harry in Henry V?  In my view, we have not paid enough attention to his duplicity and predatory deception.  Whatever else I see in Harry, it is not ‘this star of England.’  It is something we are far more familiar with – a spoiled careerist politician who is unashamedly two-faced.

And that in turn brings me back to the role of God in these wars – or, better, the role of His church.  The Orthodox Church in Russia has a revolting history of alliance with power.  (Its contribution to the governance of Greece is a matter for another time.)  The Orthodox Church of Russia is in this war of aggression up to its neck.  So was the English church in the play.  They solemnly gave Harry his pretext, cheered him on, and agreed to underwrite the war.  That church was, like the Orthodox Church in Russia, an arm of government – a pillar of the state.  

The English won at Agincourt because of their superiority in archery and the tactics they used to implement it by destroying the French cavalry.  It was both a massacre and a brilliant tactical victory. 

But Harry has a debt to his church to repay, and he does so by slobbering all over God.  And he says it was all ‘without stratagem’ and proclaims death to any of that band of brothers to ‘boast’ of the win – having previously promised them immortality in showing off the wounds they took on Saint Crispin’s day.  So, when he has got what he wanted, Harry goes back on it all once again.  This character is a chameleon in perpetuity.

But it is worse than that for God or His church.  In his second inaugural, Abraham Lincoln said that both sides to that war read the same Bible and prayed to the same God.  ‘The prayers of both could not be answered – that of neither has been answered fully.’  That was as it must be – the Almighty was placed in a position of conflict of interests that is completely beyond human understanding. 

So it was at Agincourt.  French kings went by the style ‘Most high, most potent and most excellent Prince, by the Grace of God, King of France and of Navarre, Most Christian Majesty’.  The English kings were not yet defenders of the faith, but they, too, invoked God.  And now priests of the Orthodox Church are offering up prayers on both sides in a war which they were instrumental in starting. 

It is just revolting, is it not?  A naval chaplain, ‘the minister of Christ, tho’ receiving his stipend from Mars’, went to Billy Budd in the Darbies to comfort him before he was hanged from the yard-arm.  Their creator, Herman Melville, went into overdrive.

Bluntly put, a chaplain is the minister of the Prince of Peace serving in the host of the God of War – Mars.  As such, he is as incongruous as a musket would be on the altar at Christmas.  Why then is he there?  Because he indirectly subserves the purpose attested by the cannon; because too he lends the sanction of the religion of the meek to that which practically is the abrogation of everything but brute force.

That is beautifully put.  And it is part of the meditation that I draw from Henry V. 

Well, it is common to keep finding new sources of light in the plays of this English playwright as our own stories unfold.  That is why we keep going back to them.

Passing Bull 311 – IPA tops again

Even during an election campaign, you can rely on the IPA to top the field in bullshit. 

Mr Roskam’s note in the AFR says the Liberal Party is no longer a broad church.  It used to consist of those following ‘classical liberalism and conservatism.’  He does not say what he understands by those terms – or what the difference might be.  

If the two were opposed in principle, there would be tension in the party – which there surely is.  But a party that stands for everything stands for nothing.  That about sums up the Liberal Party Labor Party now.  Just look at their platforms.  There is not one iota of difference. 

That is deliberate.  Both parties know that Australians fear novelty and change.  If you say something sensible, you might frighten the horses.  That happened at the last election.  One party got sensible about tax.  The other side frightened the natives – and won the election.  No one will propose something reasonable if it is a novelty.  The result is a tragedy for the generation that cannot afford to buy a home.

And we that are old are responsible.

Mr Roskam wonders if the Liberal Party has a philosophy.  They don’t.  We don’t go for philosophy here.  He asks why we have not got smaller government.  Because Australians want all the government they can get.  We have been addicted to it since birth.  We are genetically different to the U S.  The IPA bullshit sells there – but not here.

Mr Roskam says the Liberals’commitment on one issue is ‘political, not principled’.  Are the two exclusive?  Is there no such thing as a ‘principled politician’? 

I knew a party that put principle above geeting elected.  It was the ALP.  Out of office for a generation.  Which is what the IPA would do to the Liberal Party if they had their way.

Mr Roskam looks askance at government that is merely ‘pragmatic’.  That phrase got pinned on the PM by Paul Kelly as a compliment.  It means being practical – trying to get something that works.  What is the alternative?  A philosophy?

Finally Mr Roskam says that ‘very few Liberal MPs (and even fewer Liberal branch members) believe ‘net zero’ is good policy.’

And some people wonde why politicians in general, and the IPA in particular, are on the nose.

IPA – Liberal Party – ALP – climate change

Passing Bull 310 – Trying to stay sane about the election

Rather than walk the plank, I today sent the letter below to Dr Monique Ryan. 

Apart from the matters referred to, I am convinced that we will get nowhere politically in this country until we get more women in parliaments.  They just happen to be better than man in getting together, making sense, and getting things done.


In case those assisting you missed it, the letter of mine below appeared in the AFR today – after The Age knocked it back (as is its wont).

I wish you and those like you well.  You and they are badly needed.  Our system depends on two parties both of which have failed us; and government is only as good as the opposition. 

I am in a ‘safe Labor seat’ – that is, life tenure, and not having to answer letters from constituents.

What policy does either party offer that is distinctive from its platform?

Best wishes

Geoff Gibson

Dear Editor,

Many Australians, including me, have lost faith in both major parties.  Their MPs are being challenged by people who were not selected by either party, but who have real ideas because they have had real jobs.  The hostility to these people validates their challenges.

Sitting MPs were made candidates by a tiny minority who do not represent Australians, and who are part of a machine that is now ruined and friendless.  They are supported by a shockingly rich and powerful expat who gave the world Fox News.  If voting for such people is your idea of democracy, you can spare yourself a trip to Disneyland.  You’re already there.

May I suggest people vote for people they want – not someone chosen for them by a defunct clique? 

I turn 77 this year.  I have never seen a government do more to warrant eviction from office as this mob.  They have no defence on environment or honesty.  I could not trust them to look after my grandchildren.

Yours truly

Political parties – standing for nothing – platforms – independent MPS – role of the press.

Here and there – Bismarck

The book Bismarck, A Life, by Jonathon Steinberg, (OUP, 2011) is a great read.

The author catalogues the personal failings of his subject in detail.  Professor Steinberg makes personal judgments that are ‘large’, but you can take them or leave them, because on every page there are usually two indented quotes from primary sources – which was the manner of Sir Lewis Namier – so that you can make up your own mind.

It is a most readable book – because the subject is just so bloody fascinating.  Bismarck introduced universal male suffrage; unified the nation that is now Germany; and introduced the welfare state to Europe and the world.  If you see that trifecta on another headstone, could you please let me know?

And Bismarck got fired by God’s own idiot – Kaiser Wilhelm – whose pedigree was unhappy.

In 1908, Lloyd George introduced to the House of Commons what came to be called the People’s Budget.  He said that it was ‘the business of the state’ to look after the sick.  The aristocracy was horrified.  Was the little Welshman mad?  Lloyd George and Churchill pushed this very radical measure through.  And it was radical.  It is said by some to be the start of the Welfare State in England.  The English were in large part following the example of Bismarck.

The role of Germany, and Bismarck in particular, in the introduction of what we call the Welfare State is not generally known.   In 1883 and 1889, Bismarck pushed through legislation for accident insurance for workers and then old age and disability insurance.  For the first, the German government said it had put an end ‘to all those attempts to make health insurance a private matter …and asserts the role of the state’. 

You can see there a source of the remarks of Lloyd George.  Professor Steinberg there says that ‘Bismarck as a non-liberal could do what the liberal democracies found and still find hard: to see the state as the guarantor of justice for the poor.’ 

That is still anathema in the U S.  This shows how tricky political labels are.  Bismarck and Disraeli are put up as text-book ‘conservatives.’  Both introduced universal male suffrage – each such step was said to be ‘revolutionary.’

The longer I live, the more I think most political labels are useless – at best.  The word ‘conservative’ now conveys at best a cloud – or chimera.

You can see in Bismarck some characteristics of a real political leader.  He had his own style that made people recognise him – and allowed themselves to identify with them.  He had real drive.  And judgment – good sense.  He was able to persuade others and win their support.  He could and did offend a lot of people but he also looked to be inclusive.  Head to head, he could lay on the charm.  He had nerve.  Above all, he had the moral courage to assess risk, take a decision and stand by it.

When did we see those traits on show here?

And Bismarck deserves a memorial for this remark on his opponents following the Speech from the Throne:

…these little fellows…practise their swimming on the stormy waves of phrases.

There you have our current political commentariat.   In a dozen words.

Politics – labels – ‘conservatives’.

Passing Bull 309 – On Government

In the most revolting election period known in this country, it may be as well to reflect on what good governing may look like.  This advice was given by Don Quixote to Sancho Panza on governing an island.  It mattered not that the island did not exist.

Never be guided by arbitrary law, which finds favour only with the ignorant who plume themselves on their cleverness.  Let the tears of the poor find more compassion in you, but not more justice, than the testimony of the rich.  Seek to uncover the truth amid the promises and gifts of the man of wealth as amid the sobs and pleadings of the poverty stricken.  When it is a question of equity, do not bring all the rigor of the law to bear upon the delinquent, for the fame of the stern judge is no greater than that of the merciful one.  If the rod of justice is to be bent, let it not be by the weight of the gift, but by that of mercy.  When you come to judge the case of someone who is your enemy, put aside all thoughts of the wrong he has done you and think only of the truth.  Let not passion blind you where another’s rights are concerned, for the mistakes you make will be irremediable, or only to be remedied at the expense of your good name and fortune… Abuse not by words the one upon whom punishment must be inflicted; for the pain of the punishment itself is enough without the addition of insults.  When a guilty man comes under your jurisdiction, remember that he is but a wretched creature, subject to the inclinations of our depraved human nature, and insofar as you may be able to do so without wrong to the other side, show yourself clement and merciful; for while the attributes of God are all equal, that of mercy shows brighter in our eyes than does that of justice.

Nor does it matter that the Don was as mad as a cut snake when he gave this advice.  The role of governor included that of the judge, and I know of no better statement of what that might entail.  But there are many courts which could use in neon lights the advice of the Don about bending the rod in the way of mercy – the inarticulate premise of judges except for the outright ratbags – and sparing the loser the insults – which are nothing more than the proud man’s contumely

And while I am with that author, my favourite lines apply equally to judges and to the dreadful dross of our politics now.

But man, proud man,
Drest in a little brief authority,
Most ignorant of what he’s most assur’d;
His glassy essence, like an angry ape,
Plays such fantastic tricks before high heaven,
As make the angels weep.



Gore Vidal, 1984

Modern Library Edition, 1998, signed by the author, rebound.

Abraham Lincoln was born in the backblocks in a log cabin in Kentucky.  He learned his law lying on his back with his feet up a tree.  This largely self-taught lawyer practised in Illinois and rode on horseback on circuit when he slept fully clothed head to toe with opposing counsel. 

He had one supreme advantage over most of us.  He was well educated and his mind was uncluttered by computers and his young mind was unsullied by trivia.  He was brought up on the King James Bible and Shakespeare. 

Lincoln may well be the most consummate politician who has ever lived, and he may also be one of the very few in all history who was not corrupted by power.  He had, of course, no time for political theory.  It was by the force of his character that the union that we know as the United States of America was held together and then defined afresh.  Without Abraham Lincoln, our world in the West would be very different.

In his second inaugural address, Lincoln left no doubt that the Union was redeeming itself in the course of the Civil War.  He said that at the start of the war, one eighth of the population were coloured slaves.  He went on with some very direct statements about religion:

Neither party expected for the war the magnitude or the duration which it has already attained.  Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself should cease.  Each looked for an easier triumph and a result less fundamental and astounding.  Both read the same Bible, and prayed to the same God; and each invokes His aid against the other.  It may seem strange that any men should dare to ask a just God’s assistance in bringing their bread from the sweat of other men’s faces; but let us judge not that we be not judged.  The prayers of both could not be answered – that of neither has been answered fully.

Lincoln then went on to say that the ‘scourge of war’ would ‘continue until all of the wealth piled up by the bondsmen’s two hundred and fifty years of unrequited toil shall be sunk, and every drop of blood drawn with a lash shall be paid by another drawn with the sword …’.   The nation that started with the Puritans was therefore redeeming itself from the sin of slavery with its own blood.  Lincoln concluded that inaugural address with the famous passage that begins:  ‘With malice toward none ….’

Less than four months before his re-inauguration, Abraham Lincoln had stated his vision for his nation at the dedication of a cemetery at the site of a three-day battle, one of the bloodiest of a very bloody war, the battle of Gettysburg.  People who have seen the TV documentary, The Civil War, may recall that the late Shelby Foote said that after Lincoln had read his address ‘in his thin piping voice,’ he was worried about it.  He said that it did not ‘scour’.  For good reason, that address is now chiselled into the Lincoln Memorial at Washington, D.C., and it is an essential part of the fabric not just of the American nation, but of western civilization.

Lincoln had a well-oiled logical machine in his mind.  He would as a matter of course build the premises of his argument into the structure of his prose.  There is just one thing to note about that process here.  He starts by referring to ‘a new nation conceived in liberty and dedicated to the proposition that all men are created equal’.  We know that statement was false when it was first made.  Lincoln goes on immediately to say that the Civil War is to test ‘whether that nation, or any nation so conceived and so dedicated can long endure’. The Civil War was therefore being fought to make good the original declaration of equality.  It is the same redemptive vision, almost a biblical redemptive vision. The great republic would redeem its original sin with its own blood.

The book Lincoln by Gore Vidal is an historical novel that starts only when Lincoln becomes president.  It is remarkable for the grace of its style and for the reliability of its content.  It is intensely political, so it is as well to remember that Vidal came from a family with a strong political and military involvement.  He was born at West Point and served in the armed forces during World War II before taking up writing. 

When the book starts, most Lincoln’s cabinet think that he is an idiot whose election was a mistake that one or another of them is bound to correct.  Much of the book is about how they come to learn better, and much of it is told through the voices of his two young and impressionable secretaries (whose nick-names for their boss includes ‘the Tycoon.’)  The manoeuvrings involving Secretary of State William Seward and Secretary of the Treasury Salmon Chase make for gripping political history.  The book carries conviction throughout, and it is what is called a page-turner, wonderful for the beach.

Early on, Seward says ‘To say what is true is to do a lot in politics.  Not that I have had much experience along those lines.’  He also said: ‘It is safe to assert that no government proper ever had a provision in its organic law for its own termination.’  He may have been wrong there.  During their revolution, the French produced a constitution that allowed for revolution.

When Seward questioned suspending habeas corpus, ‘the most ancient of all our liberties’, Lincoln responded:

Mr Seward, for the moment, all that matters is to keep Maryland in the Union, and there is nothing that I will not do to accomplish that.

Mr Seward, we are told, was more alarmed than amused.

There is a remarkable scene when Lincoln visits a hospital for Southern boys where the smell of flesh corrupting was overpowering.  He made the visit over the pleas and protests of his staff.

When Lincoln spoke, the famous trumpet-voice was muted; even intimate.  ‘I am Abraham Lincoln.’  There was a long collective sigh of wonder and of …?  Washburne [Security] had never heard a sound quite like it.  ‘I know that you have fought gallantly for what you believe in and for that I honor you, and for your wounds so honourably gained.  I feel no anger in my heart towards you, and trust you feel none for me.  That is why I am here.  That is why I am willing to take the hand, in friendship of any man among you.’

The same long sigh, like a rising wind, began; and still no one spoke.  Then a man on crutches approached the President, and in perfect silence, shook his hand.  Others same forward….and to each he murmured something that the man alone could here.

At the end, as Lincoln made his way between the beds, stopping to talk to those who could not move, half of the men were in tears, as was Washburne himself.

In the last bed by the door, a young officer turned his back on the President, who touched his shoulder, and murmured, ‘My son, we shall all be the same at the end.’  Then the President was gone.

I don’t like historical novels, because I don’t trust them, but we have here writing that is as persuasive as it is powerful.

Lincoln put his foot down hard in another constitutional crisis that would break most people.

Seward felt an involuntary shudder in his limbs.  He was also ravished by the irony of the moment.  For nearly three years, a thousand voices, including his own, had called for a Cromwell, a dictator, a despot; and in all that time, no one suspected that there had been from the beginning, a single-minded dictator in the White House, a Lord Protector of the Union by whose will alone the war had been prosecuted.  For the first time, Seward understood the nature of Lincoln’s political genius.  He had been able to make himself absolute dictator without ever letting anyone suspect that he was anything more than a joking, timid, backwoods lawyer, given to fits of humility in the presence of all the strutting military and political peacocks that flocked about him.

That sounds just right, but Seward was not alone in underestimating the President.  The London Times said that the ceremony at Gettysburg was ‘rendered ludicrous by some of the sallies of that poor President Lincoln’.  The New York Times said ‘Anything more dull and commonplace it would not be easy to produce.’

This is a great book about a very great man, and it is one of those rarities – we feel sad and empty when it comes time to put it down.

The story of English law -Final Part

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.

This is the final part.


So what?

We started by looking at the division across the world between those who follow the model of Roman law and those who follow the English model.  The Romans may have the numbers of adherents, but a very different question is – who has the political runs on the board?

England is separated from Europe by a channel.  But the difference in world views is deeper than the ocean.  We have paid too little attention to the contemporary difference between the Anglo-American and European (or civilian) models of justice.

The Roman law derived from codes and codification is its preferred mode of growth.  Roman lawyers look for formal elegance.  The Code Napoléon is a good example.  The common law eschews theory, grand designs, and codification.  It arrived, as if by accident, over a period of time – the product of trial and error in applying the doctrine of precedent to events that unguided chance throws up. 

One is the rationalist view of the world.  The other is the empirical.  Ultimately that philosophical divide is reflected in the logical divide between deductive and inductive reasoning.  From our point of view – that of the common law – there is a lot of truth in the well-known statement of Oliver Wendell Holmes that the ‘life of the law has not been logic, but experience.’

Those statements are very large.  Let me give two examples. 

The French law of negligence turns on a couple of parts of the Code.  The Code expressly discourages applying precedent, but the French have had to invoke it.  As we saw, the common law developed over centuries – and is still adjusting.  In the same lecture, Holmes followed the statement above by saying that ‘as the law is administered by able and experienced men who know too much to sacrifice good sense to a syllogism, it will be found that when ancient rules maintain themselves …new reasons more fitted to the time have been found for them, and they gradually receive a new content…’

In 1789, The Social Contract by Rousseau – whom Carlyle called the Evangelist – contained high theory that engaged those in leading the revolution and creating the French Bill of Rights.  In 1689, the English just got rid of the Stuarts and then went on with their lives.  As it happened, a philosopher, John Locke, wrote a rationalisation after the event.  Which almost no English MP has ever heard of.  That revolution was successful.  The English never had another – and Macaulay purred over that success.  The French were in for a century of agony, and people lost count of their models of government.

The two world views can hardly be mixed.  When Americans or Australians seek to mix a constitutional absolute with the common law, it is like dumping ox-tail on blancmange.  Look at the carnage and intellectual dishonesty wrought by the ‘right to bear arms’ in the US.  There is simply no such issue in the UK.  They refuse to let a syllogism trump sense.  The question is simply: What works better?

English lawyers have an unashamed want of respect for intellectuals or philosophers – and, on a bad day, even for scholars.  Americans at least tend to admire legal scholars.  This may be related to the absence of a separate bar – which we could not contemplate.  (And nor could our judges.)  Attempts to replace common lawyers with academics on the bench usually fall flat.  (In the eyes of many, the same goes for solicitors – or anyone else who has not spent at least ten years in the trenches of the courtroom.)

The laws of England mainly came from the precedents of the judges with occasional interference from the parliament.  The common law derived from custom and precedent and at once underlay but could be overridden by parliament.  The law of France and Germany tends to derive from legislated codes with occasional contributions from judicial precedent.  One tends to grow from the ground up; the other is what we now call top-down.

The differences between the systems of civil (European) lawyers and common lawyers are most striking in their lawyers.  English lawyers were apprenticed – the word comes from the French apprendre (‘to learn’) – on the job.  The bar and bench controlled both the education and certification of all lawyers.  The Inns carried so much more clout than any bureaucratic form.  This led to a very independent bar and an even more independent bench.  Here we have that intangible that we know as individualism.  You can’t teach it.

The common lawyers – at both the bar and the bench – often allied themselves with parliament against the crown.  This de facto alliance is fundamental to our understanding of the English revolutions of the seventeenth century.  This movement was not matched across the Channel.  And although this comes from a lawyer, the role of English lawyers in shaping their nation only becomes apparent when you compare them to their colleagues in France and Germany and the rest of Europe.  The English lawyers were looking at the double – rugged individuals professionally and incestuously united constitutionally.  There’s still a fair bit of that about.

Only recently has law to practise been taught in universities in common law countries.  Even then, we know they only really get to learn on the job.  Lawyers in Europe learned their law at universities.  They did not establish an independent bar or bench, at least one that was so strong in the profession and that could be compared to the English.  While lawyers may have been prominent in the French and other European revolutions, they were not involved as a professional body as they were in England.  And it is only recently that judges in some European countries have been seen to be independent.  The role and standing of the judiciary in eastern Europe or on the Mediterranean has almost nothing in common with that in England.  It would be rude to assess the difference in centuries.

Common law judges usually come from the bar.  Across Europe, judges are educated and trained to be judges from the legal cradle.  They do not have years of private practice – hopefully on both sides and in various areas of the law.  They are brought up in reliance on the state and then become a part of the machinery of government.  They have not been self-employed professionals who were members of a professional body.  We can only guess at the difference that makes to the view from the bench.

In the result, it is in my view extremely unlikely that the English judiciary could have descended to the hideous depths of judges in Europe under fascism or communism. 

For similar reasons, I very much doubt whether the English people as a whole could have shrunk to the crimes against humanity seen in so much of Europe when convulsed by revolution – which, by definition, involves changing a mode of government by violence – so repudiating the whole idea of a rule of law.  England as a nation has not been threatened by internal violence for 300 years.

The English never bothered to set out their constitution in one document.  You get it from a number of documents – two agreements between the crown and subjects, the statutes confirming them, and a writ, and one other statute.  The rights of the English derive from their power to elect governments, the requirement that government obeys the laws made by parliament on behalf of the people, and their right to require a judge or the parliament to review government action to see that it complies with the law, and of course their right to trial by jury.. 

If the government wants to imprison someone for a serious crime, it will have to get a verdict from the people of the nation constituted by a jury.  In Europe, there can still be found the residue of the notion that whatever is done officially is the law, not of course as with absolute monarchs or dictators, but a different perspective to that of the common lawyer that what is done officially has to be done according to law.  Private rights are seen to derive from constitutional laws and the institutions of government. 

The English constitution forms part of or derives from the common law.  The constitution is not so much the source as the consequence of the rights of individuals. 

The English mode of trial is adversarial; the European is more inquisitorial.  Just as importantly, the common law trial was developed with a jury finding facts (and an even larger role in parts of the US).  The role of the jury dictated consequences for the laws dealing with pleading and evidence and media reporting of jury trials. 

The jury also affected the mode of hearing.  If you empanel a jury, you cannot run a stop-start inquiry and compile a dossier.  The common law trial resembles combat or sport in a way that revolts the European sensibility (and a lot of common law litigants).  On the other hand, common lawyers genuinely shudder if you mention the word ‘inquisition’, and an American lawyer would feel at best legless if denied their right – a constitutional right – to a jury.

It is a simple enough model.  Representatives of the people meet to make laws; other representatives meet to decide if a person has broken a law.

If there is a jury, the parties get the inscrutable verdict of the nation.  Trial by jury is being eroded by ignorant governments, shy judges, and powerful corporations, except in America, where the flame burns bright.  Where judges sit alone, they are required to state their findings and reasons in full.  This process can be repeated on appeal, often with scandalous duplicity.  Some judges try to write with flair and some just try to be intelligible. 

In Europe, the process is a lot more impersonal and to the point.  It is as if the judges want the parties to know that they are getting the judgment of the court, and are before la majesté de la loi, rather than enduring the idiosyncratic posturing of a barely lapsed prima donna who has never lost the need for the limelight that glows upon the advocate (known by some as Limelighters).

Now, because I have not practised in Europe or presided over a tribunal there, I may be wide of the mark on aspects of their process.  But the comparison does sound generally fair.  And it is instructive, and not sufficiently noticed on either side.

That is one purpose of this essay.  Now to unfold another, and what King Lear may have called a ‘darker purpose.’ 

In my view, what we know as the rule of law ultimately turns on a state of mind.  That proposition sounds so nebulous that it will sadden or madden a lot of you out there.  But in order for a community to live with the rule of law, in my view its members must act according to three notions.  (Kant may have said that our polity, as we know it, presupposes three premises.)

First is the belief that each of us has a dignity arising from our humanity and no more.  (If I need authority, it is Kant again – not faith.) 

Second, we are very modest about the power of our minds to arrive at any conclusion that might safely or decently be held to bind the whole community.  You could call it intellectual humility – a word we don’t use much now – but we completely reject people who insist that they have the answer to any issue involving moral or political values(If I need authority, I might refer to David Hume; or Lenin or Hitler.) 

Finally, there needs to be an underlying commitment ‘to live and let live’.  We live by customs, conventions, and manners.  They need to be followed.  We can only operate on the footing – a phrase known to our law – that people will seek to act reasonably and accept the decision of those empowered by the law to make it. 

The law says that if two people make a bargain, each has an implied obligation to seek to make the bargain work – or at least not act so as to send it off the rails.  If the law imposes a binding legal obligation of one kind in a legal contract, the least we can do is to seek to meet the same standard in a social compact.  As we found out in the pandemic, you don’t get to live in a decent community cost free.  The wish to be free of restraints duly imposed in the communal interest is a profession of selfishness that we associate with those would-be leaders whom we least admire.

If you want a simple term, try moderation, common sense, or plain human decency.  Someone – it may have been Erich Fromm – said that freedom means responsibility – that is why most men fear it.

In my view, any group of people – a family, a cricket club, a law firm, a medical clinic, a country town or a great city – is only as good as what those who have got on give back for the benefit of those who come later.  You can call it noblesse oblige if you wish but it is just common sense and ordinary decency.  It is what separates the good from the bad and the ugly.

The great English historian of the eighteenth century, Sir Lewis Namier, said that what was missing from English society then was ‘restraint, coupled with the moderation it implies, plus plain human kindness.’  That looks to me to be a precise description of our problem here and now.

We have acquiesced in soulless misdirection for too long.  We have stayed silent too long.  A silly devotion to a misguided pluralism has stopped us calling out bad behaviour for what it is.  We do have morals.  They are the rules we make to allow us to get on with each other.  Courtesy is like cutlery – it is what distinguishes us from the apes.  And there are limits to tolerating misfits where the deformity is moral.

People spruik nonsense about ‘freedom’.  Any law stops people doing something – like going through a red light.  That is how we seek to live in a community.  None of us can ever be free to do what we like.  If you prefer anarchy, try a desert island, or some of the darker parts of Africa – but not here, Mate.  These delusional ‘freedom fighters’ should stick to Phantom comics.  They are like spoiled brats on steroids.

Disaster struck twice in 2016.  One problem of democracy is that the people may serve up a rat.  The people of the UK and the US each elected as their leader a person whose flagrant self-interest made him obviously unfit to discharge the burdens of his office.  Each has by his upbringing as a spoiled brat felt able, if not driven, to flout customs, conventions, and manners.  Neither has acted reasonably.  Each has refused to accept the decision of those empowered to make it.  Each repudiates moderation, common sense, and plain human decency.  The word ‘kindness’ limply dies on our lips. 

Each traded on the grosser symptoms of the disease called ‘populism’, and yet each claimed – falsely – to be a ‘conservative.’  Each seduced enough soi disant conservatives to have trashed that term for eternity.  The word ‘liberal’ suffered a similar fate.

The result in England has been demeaning and insulting – one long Mad Hatter’s Tea Party.  The two pole stars of English politics – ‘conservative’ and ‘liberal’ – have been debauched.  The result in America has been truly frightening.  If it could happen there, who is to say that it could not happen here?

We live under a rule of law that in my view is the essential foundation of any community that claims to be civilised.  We have now seen just how fragile our condition is.  We have been given what auctioneers call ‘fair warning.’  The rule of law was erected by our ancestors in the course of a millennium.  We now know we could blow it all in the space of one generation.  As matters stand, the leading national exponent of the rule of law in the world has been sorely maimed.  And as far as we know, that wound may prove to be in some way mortal.

So, we – and I’m not just referring to the lawyers – are left with the question asked by that moral giant of the true noblesse oblige, Dietrich Bonhoeffer: ‘Are we still of any use?’


Holmes on first laws: The Common Law, Little Brown & Co, 1881, 2-3.

American jurist: James Barr Ames, Lectures on Legal History, Harvard, 1913, 34.  The common law is essentially of Teutonic origin, and came from…Anglo-Saxon law and Norman law, Norman law being Frankish. 

Maine: substantive law: Sir Henry Maine, Law and Custom, John Murray, 1890, 389.

Maitland on modes of trial: Pollock and Maitland, The History of English Law Before the Time of Edward I, Revised Ed., Cambridge, 1898, Vol 2, 670-671.

King under the law: Bracton, On the Laws and Customs of England, (Ed Woodbine, trans Thorne) Harvard, 1977, Vol I, 38.

Bloch: Feudal Society, Folio Society, 2012, 434, 545.

Cases on negligence: Macpherson v Buick Manufacturing (1916) 217 NY 582 and Donoghue v Stevenson [1932] AC 562.

Naval case: Commonwealth v Verwayen (1990) 170 CLR 394. 

Namier on the US as refrigerator: Namier, Crossroads of Power, 1968, Hamish and Hamilton, 78.

Maine on status: Ancient Law, London, 1861, 170.

French Code on Contract: 1134.

Kant on enlightenment: Kant’s Political Writings, Ed Reiss, CUP, 1970, 54.

Recital: Act in Restraint of Appeals (1533) 24 Henry VIII, c 12.

Historian on brilliant bar and law students: T F T Plucknett, A Concise History of the Common Law, Butterworths, 1948, 205, 211.

Pound on Coke and Charles I: R Pound, The Spirit of the Common Law, 1921 (Legal Classics Library), 74.

Trevelyan on English counsel: England under the Stuarts, Folio, 1996, 105-106.

Ship Money Case: Hampden’s Case, State Trials, 2nd Ed, 1730, Volume 1, 483.

Bill of Rights: I William & Mary, Sess. 2, c 2.

Plumb on Hanoverians: The First Four Georges, PenguinClassic,2000, 39.

Plumb on sanction clauses and violence: The Growth of Political Stability in England, 1675-1725, Macmillan, 1967, 19, 21, 64.

Lord Denning on freedom and the executive: Freedom under the Law, Stevens, 1949, 15.

Act of Settlement, 1701: 12 and 13 William III, c 2.

Mansfield at the bar: Fifoot, Lord Mansfield, Oxford, 1936, 33

Yet I still ride the little horse

I always made an awkward bow.

My fascination with the life and death of poor John Keats might fairly be described as morbid.  There is a lot more to it than the poetry.  There is the voluptuous little green and gold leather volume of his poetry bound by Baynton-Riviere that I got from a London antique dealer – with the title plate in scarlet; so pretty to look at; so fine to hold – and to read.  There is the portrait framed above me – a one-off drawing by an English cartoonist based on a Severn painting – all black and white; except for the eyes, which are innocent and inquiring – and pale blue.  (Which may not have been the colour of the eyes of the man.)  There is also on the wall the mounted blue and white ashtray of Number 26 Piazza di Spagna, now known as Keats Shelley House purchased in situ.  And there is the gorgeous Grolier Club edition of his letters from Scotland, now slip-cased, on paper specially made by the Czechs, and with tipped-in facsimiles of his letters and maps. 

It’s as if the real presence were here now in Yarraville in my home.

Keats was born on 31 October.  So was I.  We have nothing else in common – except for three things.  Our native tongue is English.  We think that Shakespeare is as close to God as we will ever get.  And to the extent that you could put a label on the standing of our parents, ‘born to the purple’ was not one of them. 

This little guy – he was only a tick over five feet, but he had a presence that strangers noticed and recalled – said a lot of things that have stayed with me.  Two of them stand out, and they came back to me with a blast on reading Robert Gittings’ wonderful biography again – after a gap of about a quarter of a century.

People of high art surprise us all the time.  You might never know when you will come across something – even for the twentieth time – that takes your breath away, and you just gulp or sigh.  It is a kind of soft shock, but it is a thing of wonder – just the kind of stuff we live for.

The best example for me in painted art is one whole painting – the Deposition of Pontormo in the Church of Santa Felicita.  Where on earth did that come from?  In music, it could be the trio near the end of Act I of Don Giovanni.  An inconsequential phase of the drama – and possibly the most beautiful music I have ever heard.  (That was, I think, the view of Mendelsohn – and he was a walking book on soft shocks – the Dream overture is littered with them.)

They are of course all over the place in Shakespeare – but he and Mozart are rather Alpine company.

The one that gets me every time with Keats comes when Cortez and his all his men catch sight of the Pacific and look at each other ‘with a wild surmise.’  That is, and it was meant to be, out of this world.

Which is the feeling you get watching anyone of high technique – like an expert fly cast or a cover drive – or one of the few who can cross-examine.  It looks both real and unreal, both natural and supernatural – but made to look so natural as to be easy, and with time and effort to spare; gorgeous, but so frustrating.

As it happens, that reference to high technique looks to accord with the views of Keats on poetry.  Some have it; most don’t.  He had three axioms. 

Poetry should surprise by a fine excess….it should strike the Reader as almost a Remembrance…. the rise, the progress, the setting of imagery should like the Sun come natural to him…; if Poetry comes not naturally as the Leaves to a tree, it had better not come at all.

Mr Gittings describes the background to the writing of the poem I refer to.  Keats had been to a dinner where the cognoscenti were talking about Chapman’s Homer – a translation of Homer in the high poetic style of the era.  Then he went to a dinner in Clerkenwell where the text was read at length. 

Leigh Hunt had described Chapman as ‘a fine rough old wine.’  They went all night ‘and a memorable night it was in my life’s career.’  One passage caused Keats to give ‘the reward of one of his delighted stares.’  It was the phrase ‘the sea had soaked his heart through.’  No wonder our little guy grabbed at that.  Parts of the Iliad stirred Keats so much that ‘he sometimes shouted.’  ‘And words that flew about our eares, like drifts of winter snow.’  Leigh Hunt ‘found the young poet’s heart as warm as his imagination.’  (It sounds like Keats was as high as I get watching a replay of the 2021 Grand Final.  And it’s not quiet.)

Keats left the function, in the words of Mr Gittings, ‘with the long fourteen syllable lines of Chapman’s verse of the Iliad, the rough rhyming Odyssey pentameters, still rolling in his head like breakers on a beach.’  (Yes, Mr Gittings wrote poetry.)

Keats left the function at six in the morning.  He wrote his famous poem about Chapman’s Homer, and caught the first postal messenger, so that when his host from the night before got to breakfast at ten o’clock, he found the sonnet on his table.  There was only one after-thought of correction.

Two things.  I did say that the hot shots make their own time.  And they don’t make them like that anymore.  It reminded me of the movie Amadeus, and the look of bleak horror on the face of Salieri as he leafed through the manuscripts of Mozart looking in vain for a correction. 

Keats was not yet twenty-one.  Although he could practise as an apothecary, he was about to give up his advanced studies and practice in medicine.  He would not make it to see twenty-six. 

God or Providence leaves us wondering, then, how might we compare him to Shakespeare, who lived more than twice as long, or Mozart, another short man (5 foot 4 inches), but one who made it to thirty-five.  For example, we marvel at the speed with which Mozart composed the last three symphonies.  Mt Gittings tells us that Keats composed his four great odes – Indolence, Melancholy, Nightingale and Grecian Urn – in a few weeks, possibly a few days in May 1819.

Keats mined Dante and Milton for all they were worth.  But he more than idolized Shakespeare.  The plays were his bible, his refuge, and his source of strength.  Lear was the favourite; ‘poor Tom’, his favourite line.  He even went back a lot to Troilus and Cressida, which for me gives Cymbeline a close run as being the most unwatchable play of the lot.

Mr Gittings, the poet, is excellent on La belle dame sans merci.  It is of course beyond other mere words.  It’s like Giorgione’s La Tempesta.  ‘What on earth is going on here?’  It’s as if Brahms gave us Stravinsky or Coleridge gave us T S Eliot.  (Mr Gittings refers to ‘the nightmare atmosphere of The Ancient Mariner, with its incantatory power’- which is apt for our present discussion.)

Keats was still getting over the death of his younger brother, ‘poor Tom’.  And whether he knew it or not, John Keats foresaw his own death – or at least he saw the implacable lottery that times it. ‘Send not to know for whom the bell tolls….’ 

Perhaps the nearest we get to the tone of La Belle Dame goes back a lot further – to the untranslatable lines of Virgil:

Sunt lachrymae rerum

Et mentem mortalia tangunt.

A very free translation could be ‘We see tears all around us, and mortality gets us right where we live.’  A judge for whom I worked fifty years ago was as close to the epitome of wisdom as I will ever get.  His Honour said ‘There is something permanent about death.’  ‘And no birds sing.’ 

That water is pretty deep.

The year that preceded the year which resulted in the death of Keats is described by Mr Gittings, who was not prone to gushing, as ‘the greatest year of living growth of any English poet.’  Just, what then, has been denied us?

At the end of that year, Keats went back home one night ‘travelling outside on the stage-coach for cheapness.’  He staggered home in a fever, as if drunk.  As he was slipping into bed, he coughed blood and he called for a candle.  ‘I know the colour of that blood; it is arterial blood…That drop of blood is my death warrant.  I must die.’

That kind of roll of the dice is enough for many people to banish any notion of God.  And it was not the lot of poor John Keats to cease upon the midnight with no pain.

We do know of course that Keats went to Rome for the air, and that he died there, and that he was buried at night in the Protestant Cemetery.  His death was slow, cruel and gruesome. 

We grizzle now at the time it takes us to get to London – say, thirty hours door to door.  Keats and his friend Severn boarded a small ship – a brigantine of 127 tons – at Tower Dock on 17 September, 1820 and they arrived at Naples on his birthday – 31 October, 1820.  Say, six weeks. 

They were given a small cabin ‘with six beds and at first sight every inconvenience.’  They had to share this cluttered and unchanged space and their constant sea-sickness with two women on the other side of the sheet – a mother and her daughter, who was also dying from a disease of the lungs.  The phrase ‘personal hygiene’ dies on our lips. 

Keats and his friend – and what a friend – made their way to Rome and took lodgings on the second floor of the building overlooking what are now called the Spanish Steps – the first floor was occupied by an elderly Englishman, Thomas Gibson, and his French valet.  One room overlooked the Piazza – the other, the Steps.

In the last letter he wrote – at least in this world – Keats said ‘Yet I still ride the little horse.’  He referred there to the vocation of his life – composing poetry.  He concluded that letter this way:

Write to George [the brother in trouble in the U S] as soon as you receive this, and tell him how I am, as far as you can guess; – and also a note to my sister – who walks about my imagination as a ghost – she is so like Tom.  I can scarcely bid you good bye even in a letter.  I always made an awkward bow.

God bless you!

John Keats.

Mr Gittings is plainly right that the snobbery and malice – yes, malice – of the critics did not kill Keats.  They just made his end unbearably bitter.  What could be a worse way to go than to be someone of these immense gifts being cut off so early – and apparently with no recognition from the world of his genius – or of his contribution to our never-ending betterment? 

The remorseless critics were like those mean small people here who fear and begrudge excellence, and who respond by leering, sneering and jeering.  You can catch them every night after dark on TV.  They are vicious because they make nothing, and they are left to comment on the work of others.

An apothecary, old boy, is not a gentleman.  Shame on you, ‘Pestleman Jack.’  ‘It is a better and wiser thing to be a starved apothecary than a starved poet.’  It was as bad as that.

(He had also been attacked for being an atheist.  He was not.  He just couldn’t cop what the priests preached.  That is the fourth thing we have in common.)

We see just so much of that venom all about us.  It is like the ‘daily beauty’ in Cassio that turned Iago wild, and the Furies against Keats were the men like Cassius that Caesar feared as being dangerous because they think too much.  And this poor little blighter had actually come out of the East End.

Well, the better people like Byron and Shelley took their own sweet time to come to the aid of the little Cockney, who was by then dead.  Shelley, who had surely done so much more than Keats to provoke God, as had Byron, referred to camels and gnats and said: ‘Nor shall it be your excuse, that murderer as you are, you have spoken daggers but used none.’  (Mozart faced similar problems.  After a run-in with a count, he wrote to his father: ‘I may mot be a count, but I have more honour within myself than many a count.’  He would probably have said of Byron at least what he and Beaumarchais said of all aristocrats, that their sole contribution to the world was taking the trouble to be born.)

The other phrase of Keats that sticks in my mind is that which Keats directed to be inscribed on his tombstone (which I have visited in Rome): ‘Here lies one whose name was writ on water.’  That really is unbearably sad.  And it all comes from the taipan within every one of us.

When commenting on Visconti’s great film The Leopard, Martin Scorsese said ‘This is one of the things I live for.’ 

Here is one of mine.

Much have I travell’d in the realms of gold,

And many goodly states and kingdoms seen;

Round many western islands have I been

Which bards in fealty to Apollo hold.

Oft of one wide expanse had I been told

That deep-brow’d Homer ruled as his demesne;

Yet did I never breathe its pure serene

Till I heard Chapman speak out loud and bold:

Then felt I like some watcher of the skies

When a new planet swims into his ken;

Or like stout Cortez when with eagle eyes

He star’d at the Pacific—and all his men

Look’d at each other with a wild surmise—

Silent, upon a peak in Darien.

Poetry – Keats – Shakespeare – snobbery.


If I see a family being attacked – the father killed, the mother raped and the children kidnapped – and I do not come to their aid, because I may get hurt or killed,  I am a coward.

I may seek to defend myself by saying that I am old and weak, or that the odds are against me, or that I may not make any difference, but possibly make everything worse. I will then be saying that I am acting prudently – or with discretion.  But any such argument from prudence is manifestly self-interested , and can hardly rise any higher than ‘The better part of valour is discretion.’

And Falstaff was cowardice made flesh.

That looks to me to be what I and others in the West are doing about the Russian war on the Ukraine – and I am revolted and ashamed at our failure to perform what I see as a positive moral obligation to come to the aid of someone who is attacked.

We just sit in front of our televisions watching these crimes being committed before our eyes every night, and we do nothing out of fear of what an evil man and an uncivilised people might do to us if we do the right thing.  We just sit and cheer on the victims and make faces at the war criminals.  We just let the dictator dictate to us.

Put to one side the lessons of 1938, and the abandonment of the Czechs, and the encouragement of China now.  What does  it say about us? We are defenceless against a major power.  And if one of them attacks us, we will not be able to rely on the U S or anyone else to do the right thing.  They will act in their own interests – as we do.

And we will not be able to complain that others are looking after themselves and not us.

We should all be ashamed of ourselves.

Ukraine – Russia – War – Hitler – Appeasement

The Story of English Law: Part 8

Reform and decline

The 19th century is seen as the Age of Reform, but before we come to that, we need to say something of the previous century.

The supremacy of parliament was settled by the Bill of Rights.  That left the independence of the judges to be guaranteed.  This came with the Act of Settlement  which secured the Protestant succession and provided that judges would hold office while of good behaviour and not subject to the decision of the crown. To this day, only an Anglican can be head of state.

Politics ran on what they called patronage and we call corruption.  Men expected to be rewarded for serving the public.  Walpole was a political survivor who would be recognised as the first prime minister.  He was followed by Pitt, father and son, and star turns like Burke, Fox, Sheridan and Wilberforce – super stars of oratory. 

The notions of a cabinet and ministerial responsibility – that had been hinted at in the previous century – were beginning to take hold.  It would come to be accepted that ministers of the crown only held office while they enjoyed the support of the House of Commons.  This notion was being developed – again piece-meal and over time – as ‘parties’ known as Tories and Whigs slowly crystallized into Conservatives, or Tories, and Liberals – to be joined later by the Labour Party.

But although the parliament attracted super stars, it was badly in need of reform, and this did not happen until 1832 – and then only after the nation just escaped having another revolution.

The other matter of interest to us was the colossal impact of Lord Mansfield over the common law.  He was a towering giant of a judge.  Burke said of Mansfield at the bar: ‘He had some superiors in force, some equals in persuasion; but in insinuation he was without a rival. He excelled in the statement of a case. This of itself, was worth the argument of any other man.’  Those people put the fear of God into government on the bench.  People can understand them and such judges are often seen as friends of the people.

Mansfield went on to become the Lord Chief Justice of England for thirty-two years.  He became deeply unpopular and his house was burnt down during the Gordon Riots.  (He later presided over the trial of Gordon.  He concluded his charge to the jury at 4.30 of the second morning of the trial.)

He left a lasting impression on almost every aspect of English law.  He was, like Lord Denning, personally conservative, but radical on the bench. 

He knew how to get through the business.  He decided about 700 cases a year.  He made a point of clearing his list at once each term and he often rose at one or two o’clock in the afternoon.  He knew that delay is the fault of the lawyers, not the litigants.  He outlawed adjournments even by consent.  He is said to have originated the English practice of giving judgment on the spot, and our loss of that facility shows how we are now going backwards.  He understood that business flows into the court of a good judge.

He said that the law generally, especially commercial law, had to be contained in rules easily learnt and retained because they are the dictates of common sense.  He empanelled special juries of people in business to help with the law.  The case of Moses v Macferlan was a great case on the basis of which a huge amount of learning on the law of restitution has developed.  The manuscript note of Mansfield of the case takes about a page in contemporary text.

We have not seen his like since.

Most of the old formulaic issues were scrapped by the legislature.  Most of the barbarity was taken from the criminal law and the great achievement of the Age of Reform was to cut back on the public cruelty that had blighted all parts of English life – including slavery.

It remained to increase the franchise.  The grandson of an Italian Jew became Prime Minister.  It was this great Conservative who brought in legislation to spread the vote so much more widely.  He made his queen the Empress of India and bought her the Suez Canal after a call on the Rothschilds.

At the start of the 20th century, the son of a Welsh cobbler and the son of a very active American mother effectively declared war on the aristocracy by bringing in the People’s Budget.  They said it was the business of the state to look after the sick – which would be close to heresy in a lot of the U S still now.  It was touch and go – as brittle as the time before parliamentary reform a century ago.  On each occasion, the king intervened to break the deadlock by threatening to create peers.  People speak of ‘checks and balances.’  These worked.

Women got the vote.  They had to because they had supplied the labour to make the armaments that won the war.

England survived one world war, the depression, and another world war.  But it was spent.  It shed empire, but its standing in the world hardly recovered from the Suez fiasco.  Serious industrial torpor got a hard cure from their first woman PM (and you don’t bring her name up at Oxbridge), but it left bad scarring.  The same could be said for the smooth talking man who made the Left softly populous and whom no one now speaks well of.  Among other things, he is filthy rich.  The present mob from Eton hardly bear mention.  Like the US, the UK has been morally crippled by a lazy, greedy, spoiled child – but the Tories have not suffered the moral or intellectual bankruptcy of the Republicans.

The civil service has been shredded.  The parliament is no longer the envy of the world, and Europe is justly bitter that the English welched.  The legal system by comparison does not look so bad.

The Botany Bay slammer has its own sunburnt and climate threatened somnolence.  Government at all levels is generally on the nose.  Behaviour in the parliament is appalling.  The system depends on two parties who stand for nothing and are wickedly mismanaged by small cliques of self-seeking zealots who know not what they do.  We have trashed the civil service.  The legal system is buckling under far too much law, both from parliaments and judges, and the judges are no longer willing or able to do their job and clear their lists.  We still have a head of state who is foreign, and who must be in communion with the Church of England.  We have the most banal anthem on the planet, and a foreign flag on our own that represents those who stole the land of the First Nations.

So, nothing in the garden is rosy.  But if you are lucky, on a good day, you might look up and find a gum tree – with a smiley koala.