Ethics

Here and there -Hunter Biden, Donald Trump – and Clive of India

/ Geoffrey Gibson / 4 Comments

 

In discussing the colossal good fortune of Hunter Biden in the Ukraine, a friend quoted the delicious remark of Sam Goldwyn: ‘The son also rises.’  (Yes, the computer did query this.)  We don’t like seeing people in public office on the take.  They should be in it for us – not themselves.  Diverting the profit to the family does not achieve deliverance – at least for those who did not come down in the last shower.

Putting someone in office under obligation inevitably creates conflicts of interest.  And the risk of the donee, the recipient of the gift, being, or appearing, compromised.  It is of course worse if someone is obviously appointed above their pay level.  They are some of the reasons decent people are nauseated by the gifts showered by Trump on his daughter and son-in-law.  (The claim of Jared Kushner, to advise on jails appears to rest on the fact that his dad went one up on his dad-in-law by doing time for fraud.)

Writing in The Guardian, a writer from New York said:

When you are the son of a famous and powerful politician, you are showered with opportunity, whether you deserve it or not.  This is nepotism, but it is also, if we are being direct, a form of corruption.  Moral corruption.  Not only because these prestigious positions are not earned, and because these celebukids are taking something that rightly should have gone to someone more deserving; but also because, even though there is rarely anything so crude as a direct quid pro quo, this undeserved largesse is always motivated to some extent by a desire by some powerful interest to take advantage of the halo of influence cast by the parents.  That influence should properly accrue to the public, who their parents work for.  The lavish lives afforded to famous kids are, in effect, stolen from the American people.  Each coveted job handed to a president’s kid represents a small quantity of subversion of the spirit of the democratic process.

This particular form of injustice is often waved off as just be the way of the world.  Seven-foot-tall people get to be in the NBA, and the children of presidents and vice-presidents get sweet, lucrative gigs whether they’re qualified for them or not.  We shouldn’t take this so lightly.  We should, in fact, be enraged by it.  Politics is not just another way to get rich.  It is a public service field, and the more important the position, the more stringent the ethical requirements it should carry.

The next three generations of a president’s family should have to work the checkout line at Family Dollar.  What better way to stay in touch with the pulse of America?  What better way to demonstrate how much they value hard work, and the gargantuan struggle to join the middle class? 

All this reminded me that England, the home of our parliamentary democracy, ran on what they called patronage and what we call corruption during for most of the 18th century.  The story was luminously illustrated by Sir Lewis Namier in something of a revolution in the writing and teaching of history.

The proper attitude for right-minded Members was one of considered support to the Government in the due performance of its task…But if it was proper for the well-affected Member to co-operate with the Government, so long as his conscience permitted, attendance on the business of the nation was work worthy of its hire, and the unavoidable expenditure in securing a seat deserved sympathetic consideration.  ….Bribery, to be really effective, has to be widespread and open…

Richard Pares referred to the difficulty of one MP on a conscience vote: ‘It will hurt my preferment to tell.’  There you see the conflict of interest.  He quoted the advice of one MP who would be called an ‘old lag’ in another context:

Get into Parliament, make tiresome speeches; you will have great offers; do not accept them at first, – then do; then make great provision for yourself and family, and then call yourself an independent country gentleman.

What, old boy, could be simpler – or fairer?  If you read any biography of Abraham Lincoln, you will see that on the eve of war, the incoming president had to spend days rewarding those who put him there.  It’s as rewarding as giving Christmas presents to sisters – God preserve you from any seen inequality.

Now, ‘you scratch my back and I will scratch yours underlay’ feudalism and the Mafia; Napoleon was shockingly greedy in looking after his family – with thrones; the Nazis were as corrupt as the Spartans.

But we are now shocked to see the establishment looking after its own when anyone with a modicum of ability can make their way up the bourgeois ladder on their own.  As I recall, one act of nepotism came back to slap George W Bush square in the face after Katrina, but Ivanka and Jared are as in your face as any other aspect of the present White House.

All this occurred to me reading again the luminous East India Company in Eighteenth Century Politics by Lucy Sutherland.*

Clive of India was unlovely – largely for the same reason as Trump – you get the same combination of greed and banality – and without shame.  Although to be fair, Clive was anything but downright stupid.

With Clive you get the corruption of Georgian politics with the corruption of the English doing business – committing something like daylight robbery – in India.  The engine of the business was the company of the title of the book.  It was a magnificent edifice that so beautifully delineates the ruling class of England at the time and their innate capacity to bulldust their way out of the gutter with some affable condescension of the kind that would have propelled Mr Collins to the feet of Greer Garson.  As Dame Lucy Sutherland drily remarks early on: ‘The Company was very unsuccessful in checking corruption even when it was discovered.’

To make a comfortable fortune in the public service and to establish those dependent on him in situations of profit was the major (and to contemporaries) the legitimate ambition of the ordinary politician…As a result, there emerged, not an orgy of corruption, but a fragile balance between public and private interests expressed in the system of ‘political connection’ and ‘political management.’

Clive was a latterday proconsul.  The Company was ripping off the natives – ‘gifts’ – and its servants were making their fortune on the side.  Here is Clive on gifts.

When presents are received as the price of services to the Nation, to the Company and to that Prince who bestowed those presents; when they are not extracted from him by compulsion; when he is in a state of independence and can do with his money what he pleases; and when they are not received to the disadvantage of the Company, he holds presents so received not dishonourable.

What is the word price doing in there?  That suggests that the ‘gift’ has been bought.  That is a contradiction in terms.  If the Prince is paying the price of something done for the Company, then the Company is being deprived of an entitlement.  If the Prince is paying the price of something done by an agent of the Company on the side, then the chances are the Company is not getting the full benefit of the promise of that agent to work in good faith in the interests of the Company.  Either way, the gift is ‘received to the disadvantage of the Company.’  And if the gift is large, is not the agent’s ‘independence’ impugned?  It is one thing for bank manager to accept a bottle of wine or Scotch; but a whole new vista unfolds if the gift is a first class return ticket to Monaco for the Grand Prix.

The truth is that while people may refer to the transactions as ‘gifts’ or ‘presents,’ they are for most part not made from any spirit of benevolence, but as an attempt to acquire, or buy, influence.  In that, they are just like most donations to political parties – and, on the same ground, fair game for the epithet of ‘corrupt’.

For instance, a person of interest in the Ukrainian–Trump corruption scandal is the U S Ambassador to the E U.  He appears to have three qualifications for that position – like the man who appointed him, his business is in boozers; he gave his wife a signed copy of Ayn Rand’s Atlas Shrugged; and, most importantly, he is a big donor to the Republican Party.  Indeed, it does appear that he bought this ambassadorship for a snip – a mere one million dollars (on which, we may be sure, he has paid no tax).  The notion that he might be a disinterested diplomat is fanciful.  Like everyone else appointed by this President, he is there to do the bidding of the appointer – and if he doesn’t, he will be sacked loudly on Twitter.

Clive’s defence of ‘presents’, then, does not hold up.  As it happens, our law is, now at least, clear that the agent would have to account for that gift to the Company.  It does not matter if the agent acted in good faith – or in a criminal way.  A member of the armed forces who used one of their trucks in smuggling was found to hold his resulting profit on trust for the Crown.

In my judgment, it is a principle of law that if a servant takes advantage of his service by violating his duty of honesty and good faith, to make a profit for himself, in this sense, that the assets of which he has control, or the facilities which he enjoys, or the position which he occupies, are the real cause of his obtaining the money, as distinct from being the mere opportunity for getting it, that is to say, if they play the predominant part in his obtaining the money, then he is accountable for it to the master. It matters not that the master has not lost any profit, nor suffered any damage. Nor does it matter that the master could not have done the act himself.  (Denning, J, upheld on appeal to the House of Lords: Reading v A-G [1951] A C 507.)

Nor did Clive feel any need to pussyfoot about using wealth to increase his political power.  (On a bad day he may have resembled Mr Kurtz in A Heart of Darkness.)

…a large fortune honourably acquired will be the source of great honours and advantages….believe me, there is no other interest in this kingdom but what arises from great possessions, and if after the Battle of Placis I had stayed in India for myself as well as the Company and acquired the fortune I might have done, by this time I might have been an English Earl with a Blue Ribbon instead of an Irish Peer (with the promise of a Red One).  However the receipt of the Jaggeer [jagir – an annuity paid by an Indian Prince] money for a few years will do great things.

As soulless materialism goes, Trump could hardly improve on that – but at least Clive had put on the uniform and put himself in harm’s way.

The jagir was worth £25,000 a year.  That puts the windfall of Hunter Biden (US $ 600,000) in the shade.  But common jealousy did its work and the struggle to retain that benefit, which the law would not I think now tolerate, dominated the life of Clive and the Company.  When he lost the benefit, he consulted Lord Hardwicke, a master of Equity, who said Clive and his father ‘either could not or were not willing to tell me what pretence of right was alleged for this proceeding.’  Later on, Horace Walpole, the first prime minister, said: ‘The Ministry have bought off Lord Clive with a bribe that would frighten the King of France himself; they have given him back his £25,000 a year.’  That does give new meaning to the word mercenary.  Walpole did say ‘that [Clive] owed his indemnity neither to innocence nor eloquence.’  And Dame Lucy did not exonerate Clive from guilt on the more modern charge ‘of using his inside information to gain profit on the market.’  (Clive did not buy the stock in his own name.)

Mind you, Clive gave good consideration to get his fortune back.  He promised the Government:

…..my poor services, such as they are, shall be dedicated for the rest of my days to the King, and my obligations to you always acknowledged, whether in or out of power….If these conditions are fulfilled, I do promise, Sir, that I never will give any opposition to the present or any other Court of Directors, and never will interfere in any of their affairs directly, or indirectly.

It’s ‘peace in our time’ all over again.  And is it not inherently vulgar for a subject of the King to make his loyalty to the King conditional upon the execution of a promise?

In the just released book, The Anarchy, The Relentless Rise of the East India Company, William Dalrymple says that Clive was a ‘violent, utterly ruthless and intermittently mentally unstable corporate predator.’  He was also an utterly fearless guerrilla fighter.  Calcutta should have suited him: ‘one of the most wicked places in the Universe….Rapacious and Luxurious beyond conception.’

Dalrymple says the jagir would now be worth £3,000,000 a year – and income tax had not been invented.  In addition, this swashbuckling buccaneer took plunder – called prize.  ‘Not since Cortés had Europe seen an adventurer return with so much treasure from distant conquests.’  And now the financial rape got serious.  The English called it ‘the shaking of the pagoda tree.’

And of course the white man did to the coloured man things he would never do to one of his own.  Dame Lucy records that Clive’s English attorney said the question ‘was this, whether it would go into a black man’s pocket or my own.’  And of course, in the tropics on the wrong side of the world, all decency had gone clean overboard.  Macaulay was up for it.

A succession of nominal sovereigns, sunk in indolence and debauchery, sauntered away life in secluded palaces, chewing bang [cannabis], fondling concubines, and listening to buffoons.  A succession of ferocious invaders [Persians and Afghans] descended through the Western passes to prey on the defenceless wealth of Hindostan…

Before them, Alexander.  After, them, the English and Clive.  And, yes, Mr Kurtz.

Well, well, well …..Clive’s men kept the doctors busy.  Now Trump’s men keep the lawyers busy.  The one difference is that you would have known you were going bad if you had run into your doctor in a Calcutta knock shop.  Manhattan’s slammers are filling up with Trump’s lawyers.

*F.n.: Lucy was a Geelong Girl educated in South Africa and Oxford.  According to Wikipedia, she was the first woman undergraduate to address the Union there.  She was the Principal of Lady Margaret Hall for more than a quarter of a century.  She was an acolyte of Namier – and it shows – to her benefit.  (I am a Namier fan.)  God bless her – but I do fear that Lucy may have gone to God without having once seen in action the Mighty Cats of Geelong – let alone the late, great Polly Farmer, a blackfella who could punch a footy through the window of a moving car.

Here and there – Anthony Trollope on laws and morals

/ Geoffrey Gibson / Leave a comment

 

The 1982 BBC TV series The Barchester Chronicles was and is outstanding television.  The cast was what is called ‘stellar’ – Donald Pleasance, Nigel Hawthorne, Alan Rickman, Geraldine McEwan and Susan Hampshire.  It was based on two novels by Anthony Trollope about the affairs of the Church of England in a small cathedral town in Victorian England.

The first part comes from the novel The Warden.  Mr Harding (Donald Pleasance) is a saintly figure of a vicar.  By the grace of his bishop, he holds the position of Warden of a hospital for poor old men under a charitable trust that goes back to the middle ages.  The position is now worth 800 pounds a year – a very large amount of money then.  By contrast, the old inmates are not nearly as well off.  A crusading doctor and an ambitious journalist decide to take the issue on.  They tell the inmates that most of the money should go to them.  It all depends on the interpretation of the ancient will that set up the trust.

The good Mr Harding feels very uneasy about all this.  In today’s language, the ‘optics’ are not good.  But his archdeacon (Nigel Hawthorne), who is also his son in law, and the son of the bishop, is determined to uphold the privileges of the church.  When it comes to the legal defence of the church, money is no problem.  The archdeacon instructs the church’s solicitors to brief the nation’s leading lawyer, the Attorney-General Sir Abraham Haphazard to advise.  The resulting advice leads to the issue of the novel.  It is an issue that some of our clergy and their lawyers may well have benefited from pondering.

Since the legal action that the crusaders had launched related to a charity, the plaintiff may well have been the Crown in what is called a relator action.  We can put that to one side, because nothing turned on it.  But there was a legal issue about the defendants.  The action was against Mr Harding, who ran the hospital, and Mr Chadwick, who looked after the books.

As I follow it, Sir Abraham advised that the action would be likely to fail on two counts.  First, they had sued the wrong people.  The defendants should have been the church corporation, or the relevant chapter of the church – or ‘the bishop he thinks would be the surest shot; but even there we could plead that the bishop is only visitor, and that he has never made himself a consenting party to the performance of other duties.’  Secondly, the advice was that Messrs Harding and Chadwick were merely paid servants and that it was not up to the court to query their allotted stipend.

I may say I have some difficulty with both propositions.  As to the first, at the beginning of chapter 16, the action is described as ‘The Queen on behalf of the Wool-carders of Barchester v Trustees under the will of the late John Hiram.’  As to the second, as Mr Harding said immediately, ‘that can hardly be a just arrangement’ if he could allot what salary he liked to himself leaving the twelve poor inmates no redress.  Nevertheless, the book proceeds on the footing that the legal effect of this advice is that the action will very likely fail.

Well, you can imagine the Trumpian glee with which the archdeacon received this advice.  But most people, in or outside the law, would regard these points as technical or procedural rather than going to the merits of the case.  (They resemble the kind of point I was obliged to take in defending the most unpopular TV repair man Melbourne had seen – the problem was the people loathed him so much that they made errors in the way they trumpeted the justice of their cause.)

The author says of the archdeacon:  ‘Success was his object, and he was generally successful.’  Mr Chadwick was also a hard-head.  ‘The point is so nice, as Sir Abraham says, that you would force them into fifteen thousand pounds’ cost before they could bring it to an issue! And where’s that sum of money to come from?’  This is what some call the sporting theory of justice; what others call trial by ambush – the archdeacon is firmly against telling the other side of the trap they are walking into; and you don’t often hear what Americans call an 800 pound gorilla being as candid as that – although we all know of large corporations who will not blush to play the role of a bully.  (One newspaper made an art form of trying to beat plaintiffs into submission by taking arid points of pleading.)

To the objections raised by Mr Harding, the position of the archdeacon is as follows.

Oh, well, all that’s nothing to the question; the question is, whether this intruding fellow, and a lot of cheating attorneys and pestilent dissenters, are to interfere with an arrangement which everyone knows is essentially just and serviceable to the Church.  Pray don’t let us be splitting hairs, and that amongst ourselves, or there’ll never be an end of the cause or the cost…..

What a question for a man to ask!  But it is like you – a child is not more innocent than you are in matters of business.  Can’t you see that if we tell them that no action will lie against you…that we will be putting weapons into their hands, and be teaching them how to cut our own throats?….

God bless my soul.  How odd is it that you will not see that all we are to do is to do nothing; why should we say anything about the founder’s will?  We are in possession; and we know that they are not in a position to put us out: surely that is enough for the present….

What about the abuse that Mr Harding is getting from the press?

You owe to the church of which you are a member and a minister to bear with this infliction, however severe it may be: you owe it to my father, who instituted you to support his rights; you owe it to those who preceded you to assert the legality of their position; you owe it to those who come after you, to maintain uninjured for them that which you received uninjured from others; and you owe to us all the unflinching assistance of perfect brotherhood in this matter, so that upholding one another we may support our great cause without blushing and without disgrace.

This Churchillian address is masterly writing by Trollope.  But the press gets wind of the point, and unloads on the Warden.

We understand that a plea has been set up which will be peculiarly revolting to the minds of English churchmen….Such a plea would doubtless be fair, if anyone questioned the daily wages of a bricklayer employed on the building, or the fee of the charwoman who cleans it; but we cannot envy the feeling of a clergyman of the Church of England who could allow such an argument to be put in his mouth.

If this plea be put forward, we trust Mr Harding will be forced as a witness to state the nature of his employment; the amount of work that he does; the income which he receives, and the source from whence he obtained his appointment.  We do not think he will receive much public sympathy to atone for the annoyance of such an examination.

The tormented Warden goes to see Sir Abraham.  Unless the Warden is assured about his legal entitlement to the money, he will resign.  ‘Sir Abraham began seriously to doubt his sanity.’

My dear sir, nobody now questions its justice.

Yes, Sir Abraham, one does question it – the most important of all witnesses against me – I question it myself.  God knows whether or no I love my daughter; but I would sooner that she and I would both beg, than that she should live in comfort on money which is truly the property of the poor…..I cannot boast of my conscience, when it required the violence of a public newspaper to awaken it; but now that it is awake, I must obey it.

Sir Abraham thinks this is ‘sheer Quixotism.’  The archbishop is in despair at the obduracy of his father in law.  (In the TV series, the bishop remarks that the Warden is prone to outbreaks of Christianity.)  But when the laws of England clashed with the conscience of the Warden, the conscience won.

There is no need to state the relevance of all this to weighty issues in our public forums (including issues before at least two royal commissions.)  But I may refer to some aspects of our laws.

First, it has always been the law in Australia, since it derived from a statute of Elizabeth I and the law arrived here with the first fleet, that an alienation of property made with intent to defraud creditors is voidable at the instance of any person prejudiced by it.  (This is now s.172 (1) of the Property Law Act, 1958.)  We don’t know how much time was spent by lawyers acting for James Hardie or some church entities looking at this law, but it is surprising how many people think that such provisions are only to be found in insolvency laws.  They’re wrong.  Like the laws of charity, they go back to the time of Good Queen Bess and the Spanish Armada.

Secondly, taking technical points that go against the merits or justice of the case may have forensic consequences.  In Charlick v Foley Brothers (1916) 21 CLR 249, Sir Isaac Isaacs tried an action about the sale of goods.  There was a substantive defence – a denial of any completed agreement.  There was also a technical defence – that the agreement was not evidenced in writing as required by a seventeenth century law called The Statute of Frauds.  It is worth setting out a lot of the judgment of the court.

The Statute of Frauds or its local equivalent is frequently the means of protecting a person from fraud or from the consequences of a transaction into which he has been hastily drawn.  It is couched in general terms, and applies no doubt, so far as legal effect is concerned, to such a bargain as the present.  But in practice a great mass of business rests upon the word of the parties, or upon quite informal memoranda, sufficiently understood by the parties, but not sufficient to satisfy the Statute of Frauds.  And in practice these understandings are faithfully recognized.  Where a great mercantile firm in substance invites its customers to dispense with the formalities of written contracts, and to rely upon the business honesty and fidelity of the firm to the pledged word of its responsible agents, it is distinctly dishonourable to repudiate a transaction so entered into upon the ground that the customer was simple enough to place reliance on anything short of a written undertaking duly signed.  And in my opinion it is not the duty of any legal adviser to compromise the honour and reputation of such a client, contracting in those circumstances, by placing on the record a defence of that nature without fully explaining it, and pointing out its full meaning and effect, and the probable consequences of the defence in case the event turns on a question of credibility.  If the law is explained and the true position indicated, then, if the client instructs his adviser to set up the strict legal defence, let it be done; but then the client runs the risk of being regarded as personally untrustworthy should the circumstances assume the appearance that they do in this case.

The facts before me rest so much upon the opinion I have to form of the personal integrity of the plaintiff and the defendants’ managing director, Mr. Foley, that I felt bound to specially ask Mr. Foley his own individual view of that particular defence in this case.

I was not surprised, but extremely gratified, to hear him as a business man express his own view that to succeed on that plea, if a definite bargain were really found to have been made, would not have been honourable. Had he said the contrary, I should have doubted his honesty in other directions. Even as it is, as he said he nevertheless left the matter to his advisers’ discretion, it to some extent weakened his other declaration. But on the whole I accept his personal statement as sincere.

[His Honor then dealt with the facts of the case, and decided them in favour of the defendants, holding that the contract made was conditional, and concluded:]

As the plaintiff fails on that substantial point, I see no reason to depart from the ordinary rule as to costs. If he had succeeded on this point, and had failed only on the defence of the Statute of Frauds, I should have made the direction as to costs accord with my view as to the propriety of that defence.

Those views might shock some legal or commercial people nowadays, but perhaps it is time they were given more game time.

Finally, lawyers should remember the general warning that Sir Owen Dixon gave about lawyers as gladiators – the type made for the archdeacon – and to recall their obligation to act in the overall interests of the client.

….I return to the basal principles which should govern the conduct of counsel.  He must keep steadily before him the duty of doing all he legitimately can in the true interests of his client….it is the true interests of his client that he must safeguard or consult and that is a more extensive duty than to use his best exertions in the conflict in the arena.  After all, he is his client’s counsel and the name signifies a good deal more than a forensic gladiator.  (Professional Conduct’ in Jesting Pilate, Melbourne, 1965, 134.)

My sense is that through either failure of nerve or want of professional judgment, too many lawyers forget these precepts, and strive to go along with the hymns nominated by the archdeacon – with ungodly consequences on all sides.

The 1982 BBC TV series The Barchester Chronicles was and is outstanding television.  The cast was what is called ‘stellar’ – Donald Pleasance, Nigel Hawthorne, Alan Rickman, Geraldine McEwan and Susan Hampshire.  It was based on two novels by Anthony Trollope about the affairs of the Church of England in a small cathedral town in Victorian England.

The first part comes from the novel The Warden.  Mr Harding (Donald Pleasance) is a saintly figure of a vicar.  By the grace of his bishop, he holds the position of Warden of a hospital for poor old men under a charitable trust that goes back to the middle ages.  The position is now worth 800 pounds a year – a very large amount of money then.  By contrast, the old inmates are not nearly as well off.  A crusading doctor and an ambitious journalist decide to take the issue on.  They tell the inmates that most of the money should go to them.  It all depends on the interpretation of the ancient will that set up the trust.

The good Mr Harding feels very uneasy about all this.  In today’s language, the ‘optics’ are not good.  But his archdeacon (Nigel Hawthorne), who is also his son in law, and the son of the bishop, is determined to uphold the privileges of the church.  When it comes to the legal defence of the church, money is no problem.  The archdeacon instructs the church’s solicitors to brief the nation’s leading lawyer, the Attorney-General Sir Abraham Haphazard to advise.  The resulting advice leads to the issue of the novel.  It is an issue that some of our clergy and their lawyers may well have benefited from pondering.

Since the legal action that the crusaders had launched related to a charity, the plaintiff may well have been the Crown in what is called a relator action.  We can put that to one side, because nothing turned on it.  But there was a legal issue about the defendants.  The action was against Mr Harding, who ran the hospital, and Mr Chadwick, who looked after the books.

As I follow it, Sir Abraham advised that the action would be likely to fail on two counts.  First, they had sued the wrong people.  The defendants should have been the church corporation, or the relevant chapter of the church – or ‘the bishop he thinks would be the surest shot; but even there we could plead that the bishop is only visitor, and that he has never made himself a consenting party to the performance of other duties.’  Secondly, the advice was that Messrs Harding and Chadwick were merely paid servants and that it was not up to the court to query their allotted stipend.

I may say I have some difficulty with both propositions.  As to the first, at the beginning of chapter 16, the action is described as ‘The Queen on behalf of the Wool-carders of Barchester v Trustees under the will of the late John Hiram.’  As to the second, as Mr Harding said immediately, ‘that can hardly be a just arrangement’ if he could allot what salary he liked to himself leaving the twelve poor inmates no redress.  Nevertheless, the book proceeds on the footing that the legal effect of this advice is that the action will very likely fail.

Well, you can imagine the Trumpian glee with which the archdeacon received this advice.  But most people, in or outside the law, would regard these points as technical or procedural rather than going to the merits of the case.  (They resemble the kind of point I was obliged to take in defending the most unpopular TV repair man Melbourne had seen – the problem was the people loathed him so much that they made errors in the way they trumpeted the justice of their cause.)

The author says of the archdeacon:  ‘Success was his object, and he was generally successful.’  Mr Chadwick was also a hard-head.  ‘The point is so nice, as Sir Abraham says, that you would force them into fifteen thousand pounds’ cost before they could bring it to an issue! And where’s that sum of money to come from?’  This is what some call the sporting theory of justice; what others call trial by ambush – the archdeacon is firmly against telling the other side of the trap they are walking into; and you don’t often hear what Americans call an 800 pound gorilla being as candid as that – although we all know of large corporations who will not blush to play the role of a bully.  (One newspaper made an art form of trying to beat plaintiffs into submission by taking arid points of pleading.)

To the objections raised by Mr Harding, the position of the archdeacon is as follows.

Oh, well, all that’s nothing to the question; the question is, whether this intruding fellow, and a lot of cheating attorneys and pestilent dissenters, are to interfere with an arrangement which everyone knows is essentially just and serviceable to the Church.  Pray don’t let us be splitting hairs, and that amongst ourselves, or there’ll never be an end of the cause or the cost…..

What a question for a man to ask!  But it is like you – a child is not more innocent than you are in matters of business.  Can’t you see that if we tell them that no action will lie against you…that we will be putting weapons into their hands, and be teaching them how to cut our own throats?….

God bless my soul.  How odd is it that you will not see that all we are to do is to do nothing; why should we say anything about the founder’s will?  We are in possession; and we know that they are not in a position to put us out: surely that is enough for the present….

What about the abuse that Mr Harding is getting from the press?

You owe to the church of which you are a member and a minister to bear with this infliction, however severe it may be: you owe it to my father, who instituted you to support his rights; you owe it to those who preceded you to assert the legality of their position; you owe it to those who come after you, to maintain uninjured for them that which you received uninjured from others; and you owe to us all the unflinching assistance of perfect brotherhood in this matter, so that upholding one another we may support our great cause without blushing and without disgrace.

This Churchillian address is masterly writing by Trollope.  But the press gets wind of the point, and unloads on the Warden.

We understand that a plea has been set up which will be peculiarly revolting to the minds of English churchmen….Such a plea would doubtless be fair, if anyone questioned the daily wages of a bricklayer employed on the building, or the fee of the charwoman who cleans it; but we cannot envy the feeling of a clergyman of the Church of England who could allow such an argument to be put in his mouth.

If this plea be put forward, we trust Mr Harding will be forced as a witness to state the nature of his employment; the amount of work that he does; the income which he receives, and the source from whence he obtained his appointment.  We do not think he will receive much public sympathy to atone for the annoyance of such an examination.

The tormented Warden goes to see Sir Abraham.  Unless the Warden is assured about his legal entitlement to the money, he will resign.  ‘Sir Abraham began seriously to doubt his sanity.’

My dear sir, nobody now questions its justice.

Yes, Sir Abraham, one does question it – the most important of all witnesses against me – I question it myself.  God knows whether or no I love my daughter; but I would sooner that she and I would both beg, than that she should live in comfort on money which is truly the property of the poor…..I cannot boast of my conscience, when it required the violence of a public newspaper to awaken it; but now that it is awake, I must obey it.

Sir Abraham thinks this is ‘sheer Quixotism.’  The archbishop is in despair at the obduracy of his father in law.  (In the TV series, the bishop remarks that the Warden is prone to outbreaks of Christianity.)  But when the laws of England clashed with the conscience of the Warden, the conscience won.

There is no need to state the relevance of all this to weighty issues in our public forums (including issues before at least two royal commissions.)  But I may refer to some aspects of our laws.

First, it has always been the law in Australia, since it derived from a statute of Elizabeth I and the law arrived here with the first fleet, that an alienation of property made with intent to defraud creditors is voidable at the instance of any person prejudiced by it.  (This is now s.172 (1) of the Property Law Act, 1958.)  We don’t know how much time was spent by lawyers acting for James Hardie or some church entities looking at this law, but it is surprising how many people think that such provisions are only to be found in insolvency laws.  They’re wrong.  Like the laws of charity, they go back to the time of Good Queen Bess and the Spanish Armada.

Secondly, taking technical points that go against the merits or justice of the case may have forensic consequences.  In Charlick v Foley Brothers (1916) 21 CLR 249, Sir Isaac Isaacs tried an action about the sale of goods.  There was a substantive defence – a denial of any completed agreement.  There was also a technical defence – that the agreement was not evidenced in writing as required by a seventeenth century law called The Statute of Frauds.  It is worth setting out a lot of the judgment of the court.

The Statute of Frauds or its local equivalent is frequently the means of protecting a person from fraud or from the consequences of a transaction into which he has been hastily drawn.  It is couched in general terms, and applies no doubt, so far as legal effect is concerned, to such a bargain as the present.  But in practice a great mass of business rests upon the word of the parties, or upon quite informal memoranda, sufficiently understood by the parties, but not sufficient to satisfy the Statute of Frauds.  And in practice these understandings are faithfully recognized.  Where a great mercantile firm in substance invites its customers to dispense with the formalities of written contracts, and to rely upon the business honesty and fidelity of the firm to the pledged word of its responsible agents, it is distinctly dishonourable to repudiate a transaction so entered into upon the ground that the customer was simple enough to place reliance on anything short of a written undertaking duly signed.  And in my opinion it is not the duty of any legal adviser to compromise the honour and reputation of such a client, contracting in those circumstances, by placing on the record a defence of that nature without fully explaining it, and pointing out its full meaning and effect, and the probable consequences of the defence in case the event turns on a question of credibility.  If the law is explained and the true position indicated, then, if the client instructs his adviser to set up the strict legal defence, let it be done; but then the client runs the risk of being regarded as personally untrustworthy should the circumstances assume the appearance that they do in this case.

The facts before me rest so much upon the opinion I have to form of the personal integrity of the plaintiff and the defendants’ managing director, Mr. Foley, that I felt bound to specially ask Mr. Foley his own individual view of that particular defence in this case.

I was not surprised, but extremely gratified, to hear him as a business man express his own view that to succeed on that plea, if a definite bargain were really found to have been made, would not have been honourable. Had he said the contrary, I should have doubted his honesty in other directions. Even as it is, as he said he nevertheless left the matter to his advisers’ discretion, it to some extent weakened his other declaration. But on the whole I accept his personal statement as sincere.

[His Honor then dealt with the facts of the case, and decided them in favour of the defendants, holding that the contract made was conditional, and concluded:]

As the plaintiff fails on that substantial point, I see no reason to depart from the ordinary rule as to costs. If he had succeeded on this point, and had failed only on the defence of the Statute of Frauds, I should have made the direction as to costs accord with my view as to the propriety of that defence.

Those views might shock some legal or commercial people nowadays, but perhaps it is time they were given more game time.

Finally, lawyers should remember the general warning that Sir Owen Dixon gave about lawyers as gladiators – the type made for the archdeacon – and to recall their obligation to act in the overall interests of the client.

….I return to the basal principles which should govern the conduct of counsel.  He must keep steadily before him the duty of doing all he legitimately can in the true interests of his client….it is the true interests of his client that he must safeguard or consult and that is a more extensive duty than to use his best exertions in the conflict in the arena.  After all, he is his client’s counsel and the name signifies a good deal more than a forensic gladiator.  (Professional Conduct’ in Jesting Pilate, Melbourne, 1965, 134.)

My sense is that through either failure of nerve or want of professional judgment, too many lawyers forget these precepts, and strive to go along with the hymns nominated by the archdeacon – with ungodly consequences on all sides.

Here and there – Evil á la mode; and Iago

/ Geoffrey Gibson / Leave a comment

 

Last year Fox News, a part of the Murdoch Empire and an aider and abettor of Donald Trump, paid out huge amounts of money to settle sexual harassment claims against their CEO – and to settle with him.  Such is the evil of our times that, as I recall, both settlements ran to tens of millions of dollars.  Earlier this year, Fox News was forced by public opinion to sack its number one attraction, and Trump’s biggest fan and supporter, Bill O’Reilly.  He, too, was a serial abuser, and the undisputed world champion of hypocrisy.  He too handed over many millions of dollars to the victims of his abuse.  Such is the contempt for truth now in public life that O’Reilly was suffered to say that there was no truth in the allegations against him – he was just paying out all those millions to protect his children from bad publicity that had no foundation.  I don’t know whether O’Reilly, too, employs the lie ‘fake news.’

On the weekend, The New York Times reported that O’Reilly had agreed to pay one of the victims of his abuse more than $30,000,000.  That was the cost of her silence – but someone has ratted.  And now it gets worse.  With knowledge of that deal, the Murdoch family offered O’Reilly a renewal of contract at $25,000,000 a year.  Does anyone get to say grace at the start of these lucre-shovelling sessions?

There is evil all around here.  We have monopoly money figures that of themselves corrupt the recipients.  Just look at the spectacle that our bankers have made of themselves.  But there is a vicious disparity in status as well as wealth and income.  The case of that rutting pig Weinstein shows just how corrupted these people can become, and how moguls get to believe that they are untouchable.

But it also showed how vulnerable to predators are those at the bottom.  It’s as if we were reinstituting serfdom of a quite medieval kind – a form of rightlessness deriving not from contract but from status.

As I see it, this is evil, very evil.  And it is just these rents in our communal fabric that lead to cancers like Hanson, Farage, and Trump, so that they can spread their own kind of evil.  It’s all very depressing, and it prompts reflection on the nature of evil.

Roger Scruton – Sir Roger if you go in for that kind of thing – is an English philosopher who gets up people’s noses big time on some issues.  He calls it as he sees it, and tact or social nous may not be his strong suits.  He is however an urbane man with wide interests who is capable of speaking plain English.  I think that he subscribes to the Church of England, and I know that he is an opera fan, and that he wrote a book called I Drink, Therefore I Am.  It’s hard to dislike such a bloke, and he represents a full blooded defence of religion that both God and we badly need.

Scruton’s book On Human Nature has a lot of university type language, but there are some insights there for people who are not familiar with the ontological argument for the existence of God, or Kant’s celebrated refutation of that argument.  (Yes, of course – existence is not a predicate.)

The book is a revolt against the notion that we humans can be defined biologically, genetically, or even, I think, scientifically.  It may even be a reaction against Bryan Cox.

Wait a minute: science is not the only way to pursue knowledge.  There is moral knowledge too, which is the province of practical reason; there is emotional knowledge, which is the province of art, literature, and music.  And just possibly there is transcendental knowledge, which is the province of religion.  Why privilege science, just because it sets out to explain the world?  Why not give weight to the disciplines that interpret the world and so help us to be at home in it?

Scruton seeks to explain our humanity by looking at our capacity to reflect on ourselves.  He refers to an Islamic teacher, al Fārābī, who offers us the insight that ‘the truths furnished to the intellect by philosophy are made available to the imagination by religious faith.’  Scruton’s opening lecture on ‘Human Kind’ has a ringing finale:

Take away religion, however, take away philosophy, take away the higher aims of art, and you deprive ordinary people of the ways in which they can represent their apartness.  Human nature, once something to live up to, becomes something to live down to instead.  Biological reductionism nurtures this ‘living down’, which is why people so readily fall for it.  It makes cynicism respectable, and degeneracy chic.  It abolishes our kind – and with it our kindness.

It’s been quite some time since anything like that was taught at university under the heading of Philosophy.

It is the subject of evil that is of interest to us now.  Bad people, Scruton says, are like you or me, but evil people are visitors from another sphere, incarnations of the Devil.  ‘Even their charm – and it is a recognised fact that evil people are often charming – is only further proof of their Otherness.  They are, in some sense, the negation of humanity, wholly and unnaturally at ease with the thing that they seek to destroy.’

That seems to be about right.  Scruton reminds us that Goethe gives to Mephistopheles the line: ‘I am the spirit that forever negates.’  We’re not just talking of the person who sucks the oxygen out of a room.  Bad people tend to ignore others because they are guided by self-interest – just look at Trump – but the evil person ‘is profoundly interested in others, has almost selfless designs on them.’

The aim is not to use them, as Faust uses Gretchen, but to rob them of themselves.  Mephistopheles hopes to steal and destroy Faust’s soul and, en route to that end, to destroy the soul of Gretchen.  Nowadays we might use the word ‘self’ instead of ‘soul’, in order to avoid religious connotations.  But this word is only another name for the same metaphysical mystery around which our lives are built – the mystery of the subjective viewpoint.  Evil people are not necessarily threats to your body; but they are threats to yourself.

The relevance of all this to Iago is obvious and Scruton makes the link himself.  In watching the play, we are quickly shocked to find that Iago really intends to destroy Othello.

Peering into Iago’s soul we find a void, a nothingness; like Mephistopheles, he is a great negation, a soul composed of anti-spirit, as a body might be composed of antimatter.  The evil person is like a fracture in our human world, through which we catch glimpses of the void.

These insights, which are strong, lead Scruton to refer to ‘the banality of evil’ that Hannah Arendt saw in the bureaucratic mindset of Adolf Eichmann.  And he powerfully reminds us that concentration camps ‘were designed not merely to destroy human beings, but also to deprive them of their humanity.’  He then goes on to refer to what he sees as the ‘paradigm of evil – namely, the attempt or desire to destroy the soul of another so that his or her value and meaning are rubbed out.’

The book concludes with some comments on faith, and the notion that religion ‘is a dedication of one’s being’ and concludes with a reference ‘ to the two great works of art that have attempted to show what redemption means for us, in the world of modern scepticism: Dostoevsky’s Brothers Karamazov and Wagner’s Parsifal.  In the wake of these two great aesthetic achievements, it seems to me, the perspective of philosophy is of no great significance.’

Would that others of us could be so modest (even if he lost me on Parsifal).  But as ever, we needn’t press the labels or categories too hard.  (George Bush Senior said that ‘labels are what you put on soup cans.’)  Nor should we forget another remark of Hannah Arendt.

The trouble with Eichmann was precisely that so many were like him, and that the many were neither perverted nor sadistic, that they were, and still are, terribly and terrifyingly normal.

This may be hard to square with Scruton, but people who choose to demonise Stalin and Hitler want to run away from history and they demean their victims.

Iago has these lines:

… If Cassio do remain,

He hath a daily beauty in his life

That makes me ugly… (5.1.18-20)

There is a primal, Garden of Evil, feeling about that type of envy, and it calls to mind the visceral description by the same writer of the type of person who sucks the air out of a room, the common garden smiling assassin.

Yond Cassius has a lean and hungry look;

He thinks too much: such men are dangerous…

…..He reads much,

He is a great observer and he looks

Quite through the deeds of men …

Seldom he smiles, and smiles in such a sort

As if he mocked himself, and scorned his spirit

That could be moved to smile at anything.

Such men as he be never at heart’s ease

Whilst they behold a greater than themselves.

And therefore are they very dangerous.

(Julius Caesar, 1.2.200-215)

You would not want to stake your house on spotting the difference between the badness of Cassius and the evil of Iago – or, for that matter, what category you might reserve for Eichmann.  It may be best to leave all that stuff to God.  Those issues are certainly way above my pay level.

But let us go back to Fox News, Rupert Murdoch, and Bill O’Reilly.  A friend of mine – as it happens, the one who attends mass in a cathedral – astutely observed of the problems of Fox that ‘a large part of tabloid journalism involves the exploitation of human misery’ – or at least, I may add, misfortune.  It is therefore ironic that O’Reilly lies that he is paying out protection money just to avoid exploitation from the gutter.  The exploitation of the gutter is the business model of Fox News, and the modus operandi of President Donald Trump.

Are we then tip-toeing ever closer to the rim of the volcano that we have always sensed lies below us?

Why did the Roman Empire fall?  Edward Gibbon, the great historian, said:

The rise of a city, which swelled into an empire, may deserve, as a singular prodigy, the reflection of a philosophic mind.  But the decline of Rome was the natural and inevitable effect of its immoderate greatness.  Prosperity ripened the principle of decay; the causes of destruction multiplied with the extent of conquest; and as soon as time or accident had removed the artificial supports, the stupendous fabric yielded to the pressure of its own weight.  The story of its ruin is simple and obvious; and instead of inquiring why the Roman Empire was destroyed, we should rather be surprised that it subsisted so long.  The victorious legions, who, in distant wars, acquired the vices of strangers and mercenaries, first oppressed the freedom of the republic, and afterwards violated the majesty of the purple.  The emperors, anxious for their personal safety and public peace, were reduced to the base expedient of corrupting the discipline which rendered them alike formidable to their sovereign and to the enemy; the vigour of the military government was relaxed and finally dissolved by the partial institutions of Constantine; and the Roman world was overwhelmed by a deluge of barbarians.

The United States is not there yet – but Gibbon looks to me to have diagnosed precisely the condition of the actual decline and coming fall of the Murdoch Empire.

Happy Christmas to all those crooks out there

/ Geoffrey Gibson / Leave a comment

 

People at FIFA could not spell the word ethics.  They have suspended two high ranking officers for eight years for a ‘disloyal transaction’ where one paid millions to the other.  I gather that ‘disloyal’ means dishonest or a payment made in breach of trust in or breach of fiduciary duty.  That is, money from a fund was not applied properly for the purposes of the fund, but to suit the private interests of the parties.  The function of an ethics committee is to police ethical standards to protect members and the public.  Once a finding of dishonesty at that level in the hierarchy and in that amount of money is made, the only possible remedy is life bans.

The question is: can these people be trusted in their office after this finding of dishonesty against them?  The answer is obviously no.  And it obviously will not become yes after a holiday, even a long one.  This committee has misconceived its function completely.  You can tell that by the fines, which presuppose that these people have been enriching themselves mercilessly, but which for these people represent a parking ticket.

And why are not these crooks being prosecuted by the law for the dishonest use of the money of others?  Even on their hilarious version, they would get life bans here from acting as directors of public companies.

We are in no position to smirk.  There was an unhealthy difference of opinion at Westpac when the company agreed to ‘treat’ accounting procedures in a way that financially benefited directors – there was great unhappiness among shareholders.  Accounting issues in the debt of Glencore may have led to a valuation of its worth being bloated by billions of dollars.  Innocent investors may have been wiped out by misstatements.  Worrying disclosures are now being made about the extent to which spoiled egomaniacs posturing as sponsors of charity are just lining their pockets and boosting their egos while quietly burying their consciences.  Now we see the market worth of the business of law firm that went public going through the floor over arguments over the real worth of a major acquisition – although, it is a little hard to feel too sorry for investors who put such a huge valuation on the business of a law firm that made its name from acting for people who could not afford to pay lawyers.

It is worrying when accountants say they will ‘treat’ a transaction in a different way.  This is especially so if you can only change the label you apply, or the box you put a transaction into, if the facts are different.  There are problems in saying that cat is a dog, or that a transaction that we said occurred on 1 July, did in fact occur on 30 June.  If you make a false statement for material gain, you are in the territory of the crime called theft.  It is like American politicians saying that they ‘miss-spoke’: they are either lying now or they were lying before.

It is time that the law caught up with people who flirt with the truth and ruin others.  In parts of this country, we throw blackfellas into jail for the equivalent of stealing loaf of bread because it is their third offence.  We do not see people going to jail for allowing their greed to give us the Global Financial Crisis or by filling their own pockets while misleading shareholders.  I am very far from saying that such a comment applies to any of the corporate examples that I have referred to above, but it would certainly apply to the officers of FIFA, and I have no doubt many shifty corporate operators here.

Speaking as a taxpayer, I would be happy to put quite a few such crooks up at my and the public’s expense for a number of Christmases.  Such a course would be good for moral at large and help a lot of people to a happier Christmas.

Character, big-noters, and motherhood

/ Geoffrey Gibson / Leave a comment

There is a show on SBS from PBS in the US.  It is a news service started by Jim Lehrer and another.  It features a weekly news analysis by Mark Shields and David Brooks.  I have been a big fan of this segment for about fifteen years.  There is nothing like it here or in England.  Mark Shields is with The Boston Globe and has a Democrat leaning (and had been an enlisted man, as had Jim Lehrer) and David Brooks is at The New York Times, and has a Republican leaning.  What they do not know about politics does not matter, but more importantly each is a gentleman and a man of compassion – and intellect.

David Brooks has just written another book, The Road to Character, which I have just started to read.  He says that there are CV virtues – what you have achieved, and eulogy virtues – your character.  The trick is to get the balance in favour of what counts – character.

But we are getting it wrong.  We are in the age of the BIG ME.  Brooks has an anecdote.  While driving home, he listened to a radio program Command Performance.  It was broadcast the day after VJ day.  All the big hitters like Sinatra, Dietrich and Cary Grant were there.  What struck Brooks was the prevailing mood of self-effacement.  Bing Crosby – and they did not come any bigger than him – summed up the mood.  ‘Today, though, our deep-down feeling is one of humility.’

Brooks sat and listened to the end of the program and then went inside.  He turned on the TV.  A wide-receiver was tackled for a two yard gain.  The defence went into a self-puffing victory dance.  ‘It occurred to me that I had just watched more self-celebration after a two-yard gain than I had heard after the United States won World War II.’

It is a great story.  I wrote a book called The Humility of Knowledge, but we do not speak of humility any more.  If you said someone was humble, he might belt you.  People do not do humility – especially big-noters or big-hitters.  So, instead of saying that someone is humble, which might get you something between a leer and a sneer, we just say that they are not a big-noter.  Just compare Rod Laver to any current Oz tennis player.

On pages 8 and 9, as far as I have got, we get the following.  ‘Humility is freedom from the need to prove that you are superior all the time, but egotism is a ravenous hunger in a small space – self-concerned, competitive, and distinction-hungry.’  He quotes an Archbishop of Canterbury, and a psychologist who referred to an ‘almost unlimited ability to ignore our ignorance.’  (I do not know whether he cited Socrates.)  Montaigne said: ‘We can be knowledgeable with other men’s knowledge, but we can’t be wise with other men’s wisdom.’  That should be in neon lights in all professional and government rooms in this country.  Brooks says:

That’s because wisdom isn’t a body of information.  It’s the moral quality of knowing what you don’t know and figuring out a way to handle your ignorance, uncertainty, and limitation.

That, if I may say so, is wisdom.

Brooks gives some scary indicators of the BIG ME.  Middle school girls were asked who they would most like to have dinner with.  Jesus Christ came second – between Jennifer Lopez and Paris Hilton.  That is enough to make anyone sick.

I read that just before lunch, during which I read in the AFR about Marissa Mayer.  She is on any view a big hitter and a big noter.  She is the CEO of Yahoo and collects about $60 million US a year.  The article says that ‘she blazed a trail in the US in 2012 by giving birth while holding the top job.’  She is now expecting twin girls at the age of 40.  She said: ‘I plan to approach the pregnancy and delivery as I did with my son three years ago….and will be working throughout.’  She will not take Yahoo’s 16 weeks paid maternity leave.

I brought up two girls with their mother and it is the hardest thing I’ve done.

Do you think Marissa Mayer would understand the word ‘humility’?  Do you think that her daughters will be glad that she puts CV character so far above eulogy character?