Here and there – The curious case of George Pell

 

Cardinal George Pell was sentenced to imprisonment for serious crimes against a young man in his charge.

Before that could happen, the Crown (the DPP or prosecution) had to clear three hurdles.  The DPP must have found that there was a ‘reasonable prospect of conviction.’  Then a magistrate had to consider all the evidence and conclude that the available evidence was ‘of sufficient weight to support a conviction of’ an indictable offence.  Thirdly, at the conclusion of the prosecution case, it is open to the accused to submit that a verdict of not guilty should be directed on the ground that ‘there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.’

The Crown satisfied the first two tests and as far as I know the accused did not submit that the case warranted a verdict of not guilty under the third heading above.  There were two further obstacles.  One of the protections afforded the accused is that the verdict of the jury must be unanimous. The first jury could not agree, and the verdict was only obtained on the re-trial.

The Crown case also survived on an appeal to the Court of Appeal by a majority decision.  All three justices reviewed all the evidence given by the accused, and the majority found the complainant to be a ‘compellingly credible witness’ and that the circumstantial evidence did not entail that the jury had been compelled to entertain a doubt about the guilt of the accused.

The accused then sought and obtained special leave to appeal from that decision to the High Court.  That court allowed the appeal and directed a verdict of acquittal. The seven justices unanimously concluded that there was ‘a significant possibility that an innocent person had been convicted because the evidence did not establish guilt to the requisite standard of proof.’

In R v Doney (1990) 171 CLR 207 (par.  11) the High Court said:

There is no doubt that it is a trial judge’s duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict.

In the case of Pell [2020] HCA 12 (par 39), the High Court said:

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.., in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

My first reason for finding this case curious is that for a lawyer who does not practice in crime, I have great difficulty in following what if any is the substantive difference between the role of the trial judge in ruling against a submission of no case (as in Doney) and the role of the appellate court appellate court in determining whether the verdict of the jury can be found to be unreasonable.  The question then is this: if the verdict directed by the High Court is as plain as that court found, and only by reference to the evidence of the Crown, why was not the issue raised and dealt with in any of the procedures that led to the verdict in this trial?  It looks like I and others have had to foot the bill for the accommodation of the Cardinal on grounds that look to have been apparent from the start.

The second ground of curiosity relates to reviewing the video of the complainant’s evidence.  The accused argued against that course.  Not surprisingly, the Court of Appeal ruled against him.  But the High Court is at best very wary and a little terse about this practice.  Their Honours did not apparently view the videos.  In the result, a clear majority of those who saw the videos – part of the jury in the first trial, all of the jury in the second, and by a majority of justices on appeal – had no reasonable doubt about the guilt of the accused.  The verdict of acquittal was directed by those who did not see the tapes.

It may be that the High Court would have reached the same result after looking at the tapes, but logic is not an absolute master when it comes to observing due process in the administration of justice.  Among other things, it would be a shame if forensic ingenuity was thought to count for more than witness integrity.  Such a view would buttress a common prejudice of the type that was immediately on show when the High Court gave its judgment.  It was obvious that the views within the nation were split, among other things on sectarian grounds, and it was vital that any judgment should be determinative both in law and on the merits.  The results so far are not good – even if, as may have been predicted, the ignorance of some parts of the press was matched only by its arrogance.

It is a very strong thing for one appellate court to overturn the finding of another appellate court on the evidence as a whole without reviewing that evidence in the same form that the first court did.  In the fullness of time, we may learn how that process differs from a decision to ban a book taken without reading the book.  And some may prefer the simple and humane approach of the majority of the Court of Appeal to the Euclidian sterility of those who reached a different result.  The former is clearly more accessible to the community at large.

This then was not an ideal way to put to rest a fierce contest that is and will long remain in the public domain.  And it is out of tune with the felt need to give victims of sexual abuse a decent hearing.  What is the message that we are sending to victims of sexual abuse by those in power?  ‘Go ahead and complain.  Then give evidence.  And be cross –examined painfully and insultingly for days.  Then watch on as the accused refuses to submit himself to the same ordeal.  Then have your version – that has not been contradicted on oath by the man who attacked you – accepted by a jury and acted on by the court’s sentencing your assailant to prison.  Then have a majority of judges also accept your version on appeal.  And then watch the prisoner walk away because another group of judges takes a different view of the evidence to the first group.  Although they did not take the time to watch you giving your evidence.  When the effect of the evidence is under our law primarily a matter for the jury.  And when your version on oath has been accepted by the jury and the accused has never had to give his version in the same way.’

The so-called ‘best evidence rule’ may be dead as a dodo, but its rationale – common sense and ordinary decency – is not.  And our law knows a long history of preference for direct oral evidence over that which is ‘only circumstantial’.  (I refer to an observation of Holt, CJ in 1701 referred to in Thayer A Preliminary Treatise on Evidence at The Common Law, Little Brown, 1898, 489.)

We are of course here discussing only the criminal standard of proof.  If the Cardinal sued for libel on an allegation of sexual abuse, the onus would be on the defendant, but only the balance of probabilities.  And as a matter of fact, he would have to go into the witness box.

Similarly, if there was an issue about whether this man could be trusted in a position with access to young men in the future, then that issue would not be determined by saying that this man should retain the trust of his employer until a court found him guilty beyond doubt of a relevant offence.  This is not the first time this man has been the subject of a complainant by someone who was found to be an honest witness.  That as I recollect it was the result of a finding of Justice Southwell in a private hearing into complaints of sexual abuse against this priest.

There have therefore been two cases involving the Cardinal where people have found in favour of the honesty of the victim.  Just how an employer might assess the significance of such a history may require some judgment.  And no such issue would properly be resolved by giving the Cardinal the benefit of the doubt.  It is those who may be hurt that have to be looked after.  Putting the interests of the employer over those in possible harm’s way is precisely the cause of so many of our present discontents.

A lot of this is unclear to me.  But two things are clear enough.  First, we would not be having this discussion if the accused had given evidence.  As far as I know, we are yet to hear why he declined to face his accuser from the witness box – a course that it is very difficult to square with his loud assertions of innocence and desire to have his day in court and see justice done.

The second is that Lindy Chamberlain must be asking what star she was born under or what bus she was run over by if Cardinal Pell could get a verdict set aside but she could not.  For we now know that not only was Lindy not guilty – she was also actually innocent.  Only the keenest of the faithful would ever say that of the Cardinal.

Here and there – Worth

 

We get a charge out of seeing people at the top of their game professionally, or in a sport, or whatever.  Obvious excellence leads us to reflect on the worth of the person showing it – and the worth of what they do for us.  ‘Worth’ like ‘dignity’ is a word that is abused, but we resort to it to describe something that we think is good and to be valued – and not, of course, just in money.  If I see someone cast a fly or drive a golf ball as well as I can imagine it, I feel good – just as I feel good when hearing Jussi Bjorling sing Nessun Dorma, or when I look at one of the bridal series of Arthur Boyd.  If you are really lucky you can get a super charged sense of grateful elevation at the foot of the Iguazzu Falls, or on the rim of the Grand Canyon, or when Mount Kanchenjunga hauls into half the horizon.

A lot moonshine is spread about advocacy, and cross-examination in particular, but once about thirty five years ago, I sat bedside Neil McPhee, QC, as he cross-examined a hard-nosed manager from the Richmond Football Club – and the little Scot knew where some of their skeletons were buried – for about twenty minutes so as to elicit concessions that neither the witness nor his counsel seemed to notice.  Here was a technique that no one can teach.  I actually held my breath at times.  I was on the edge of my seat – I could have been in the front row of the circle at Covent Garden for Fonteyn and Nureyev.  There was a worth beyond my imagining.  I have never seen anything like it.

Some sports champions have a complete aura of their worth.  Muhammad Ali was a man like no other.  He changed other people’s lives (including some of our articled clerks who got close to him on the MCG and who came back with a barely subdued sense of wonder.  They had  been in his presence, and it showed.)  Jack Nicklaus walking down the eighteenth fairway to the adulation of the crowd looked to me to be not just regal, but imperial.  He just oozed calm authority.  And Viv Richards provoked in his opponents the kind of fear normally reserved for those facing fast bowlers.  In a world cup final, the game was stagnating until Richards backed away and flayed the ball to the fence from which it rocked back about half-way to the pitch.  As the crowd became frenzied, Richie Benaud said quietly, and nasally: ‘There was an element of contempt in that stroke.’  On his day, Virat Kohli can evoke up similar emotions.  These are the kinds of moments we celebrate in sports.

These notions came to me last night as I watched a replay of the Wednesday before the Masters at Augusta in, I gather, the last few years.  They get past champions to compete over the par three holes.  Gary Player (82), Jack Nicklaus (78) and Tom Watson (68) were matched.  Three titans – three world beaters – all with their own majestic aura and each of them way beyond any measured worth.  They were obviously not what they had been.  But none of them duffed one stroke, and you could still sense an underlying steel in the players in the carnival atmosphere of the adoring multitude.  Watson beat the whole field.  And I was getting it all for just about nothing – at a time when a virus is robbing us of the balm of sports and our weekends feel barren, if not desolate.  As sports events go, you would find it hard to beat this.  Here was worth that was indeed beyond all comparison.

Then something happened that event organisers and TV producers just dream of.  As happens in these pro-am type days, caddies were given a shot.  It came to the turn Nicklaus’ caddie.  He was I think sixteen.  His practice swings showed that he was a natural whose swing had been finely honed.  He showed no sign of nerves.  He hit his tee shot cleanly and beautifully.  Replays showed Gary Player vocally celebrating the shot from the moment it took flight until the time it came to rest.  It ran to the back of the green.  Then it started to roll back.  In the direction of the hole.  And it slowly became clear that something wonderful might happen.  Which it did!  In the hole!  Pandemonium.  Then it turns out that the caddy is the grandson of the man some say is the greatest golfer ever, Jack Nicklaus, who looked every bit of his age, and who was celebrating above all others.  He just radiated his exultation.

Well, we must just hope that that ‘miracle’ does not put a spanner in the life of that young man –as Neil Crompton’s match winning goal did for him (‘the Frog’s goal’) in the 1964 Grand Final.  (I was there with my mum – right behind the Frog, although at the other end of the ground.)  The whole crowd and commentariat were suffused with benevolence.  It led to a kind of uplift which is so much needed in a frightened world where we are hourly reminded that we are not what we were cracked up to be.  It is the kind of innocent elation that you can get from the best of sport or theatre or concert.  And what kind of ratbag would wish to put a price on that result?

This is kind of boost we need for what we might hope for that notion that each of us has a certain worth or dignity merely because of our humanity.  And, as it seems to me, these great golfers are as well placed as any one to remind us of that basic truth.

Well, I am reading War and Peace for the fourth time, so I may be allowed some mysticism in my solitary sequestration sans sport.  But I have to report that Natasha does not get any easier to cope with from one reading to the next, and she just keeps exploding more loudly in the 1972 BBC version until – well you know when until.  And I have just passed that bit where Pierre – I thought it was Prince Bolkonsky, to whom I have taken a shine – allowed himself a philosophical observation on the subject of death.  When we die, Pierre (Antony Hopkins) says, we either get all the answers – or we stop asking the questions.  That notion has always seemed to me to be both fair and comfortable.  Who could ask for anything more?

MY SECOND TOP SHELF – 1

 

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

A FAREWELL TO ARMS

Ernest Hemingway, 1929

Franklin Library, 1929.  Bound in quarter leather, ridged spine, with embossed title and filigree; cloth boards patterned.  Illustrated by Bernard Fuchs.

During the Second World War, British trains carried a message (one that Wittgenstein cited): ‘Is this journey really necessary?’  Try as I might, I find it hard to put this question behind me when reading Hemingway.  He could certainly write; he was a natural; but did he have anything to say that was worth listening to?

A Farewell to Arms is set on the Italian Front during World War I.  An American volunteer ambulance officer falls in love with a British nurse.  In the meantime, we are exposed to the horror and futility of war.  But what does it matter if two outsiders have their ups and downs during war?  The novel draws on many experiences of Hemingway in the war, but we are spared that obsession with manliness that cost so many women so dearly in the course of Hemingway’s life.

The beginning of the novel is often quoted to show the spare style of the author.

In the late summer of that year we lived in a house in a village that looked across the river and the plain to the mountains.  In the bed of the river there were pebbles and boulders, dry and white in the sun, and the water was clear and swiftly moving and blue in the channels.  Troops went by the house and down the road and the dust they raised powdered the leaves of the trees.  The trunks of the trees too were dusty and the leaves fell early that year and we saw the troops marching along the road and the dust rising and leaves, stirred by the breeze, falling and the soldiers marching and afterward the road bare and white except for the leaves.

For some, this will be like a mix of Debussy and Auden.

There are passages about the war.

I did not say anything.  I was always embarrassed by the words sacred, glorious and sacrifice and the expression in vain.  We had heard them, sometimes standing in the rain almost out of earshot, so that only the shouted words came through, and had read them on the proclamations that were slapped up by billposters over other proclamations, now for a long time, and I had seen nothing sacred, and the things that were glorious had no glory, and the sacrifices were like the stockyards at Chicago if nothing was done with the meat except to bury it……Abstract words such as glory, honor, courage or hallow were obscene beside the concrete names of villages, the numbers of roads, the names of rivers, the numbers of regiments and the dates.  Gino was a patriot, so he said things that separated us, but he was also a fine boy and I understood his being a patriot.  He was born one.

Well, whatever else a patriot might be, you are not born one.  You have to accept moulding and pledge active loyalty and devotion.  The narrator has learned the horrors of war from being involved in one, even if not as a fighting man, and a citizen, and therefore potential patriot, of any of the nations involved.

But less than twenty pages later, we get this from an American volunteer dealing with Italian soldiers – quite possibly conscripts.  They appear to be deserting. The American tenente orders them to come back.  They said he had no authority because he was not their officer.

‘Halt,’ I said.  They kept on down the muddy road, the hedge on the other side.  ‘I order you to halt,’ I called.  They went a little faster.  I opened up my holster, took the pistol, aimed at the one who had talked the most, and fired.  I missed and they both started to run.  I shot three times and dropped one.  The other went through the hedge and was out of sight.  I fired at him through the hedge as he ran across the field.  The pistol clicked empty and I put in another clip.  I saw it was too far to shoot at the second sergeant.  He was far across the field, running, his head held low.  I commenced to reload an empty clip.  Bonello came up.

‘Let me finish him,’ he said. I handed him the pistol and he walked down to where the sergeant of engineers lay face down across the road.  Bonello leaned over, put the pistol against the man’s head and pulled the trigger.  The pistol did not fire.

‘You have to cock it’, I said.  He cocked it and fired twice.  He took hold of the sergeant’s legs and pulled him to the side of the road so he lay beside the hedge.  He came back and handed me the pistol.

‘The son of a bitch,’ he said.

There you have that stern spare style.  ‘I shot three times and dropped one.’  Just as if he were shooting wooden ducks on a conveyor belt at the town fair.

But what has happened here?  An American is there in Italy as a volunteer ambulance man.  He is there to save people, not to kill them.  But he is concerned that soldiers – ‘real soldiers’ – are deserting ‘his’ side.  They are in truth showing a feeling to war that the narrator has just embraced.  He assumes the authority, which is challenged on obvious grounds, to order them to stop, and then he fires at them.

Whatever you might think of this, how do you describe ‘finishing’ the wounded man – who was born to some mother and who may leave a wife and children – as anything other than vicious murder?  Where does that leave the hero and narrator – or the author, who goes on as if nothing had happened out of the ordinary?  Was Himmler or Heydrich so clinical in describing the murders that he participated in?  How many novelists do you know who would be content to leave all this up in the air?

The child of the union is stillborn.

It seems she [Catherine, the nurse and mother] had one haemorrhage after another.  They couldn’t stop it.  I went into the room and stayed with Catherine until she died.  She was unconscious all the time, and it did not take her very long to die.

……

‘It was the only thing to do,’ he [the doctor] said.  ‘The operation proved – ’

‘I don’t want to talk about it’, I said.

‘I would like to take you to your hotel.’

‘No thank you.’

He went down the hall.  I went to the door of the room.

‘You can’t come in now’, one of the nurses said.

‘Yes I can I said’, I said.

‘You can’t come in yet.’

‘You get out’, I said.  ‘The other one too.’

But after I had got them out and shut the door and turned off the light it wasn’t any good.  It was like saying good-by to a statue.  After a while I went out and left the hospital and walked back to the hotel in the rain.

‘Like saying good-by to a statue’?  Is that all he has to show for the loss of his lover and mother of his child?

Sparseness in writing is one thing; being antiseptic is another; but heartlessness is altogether something different.  It is not then surprising if some readers – including me – are left cold, and fearing that they have just seen a victory of technique over humanity.

Why then is this book here?  This is a lovely and readable edition (even if the illustrations are awful); I have greatly enjoyed parts of this and other books by this author; and the acknowledged contribution of Hemingway to the literature of the twentieth century is such that it would have been churlish to have omitted him from a book such as this.

Here and there – Jude the Obscure

 

Jude Fawley is thoroughly decent.   He also wants to become learned and respected.  But he has doom written all over his face, and much more stridently than had either Romeo or Juliet.  He is at first seduced and then conned into marriage by Arabella Donn.  Arabella is anything but decent.  She is a tart who shoots through.  Jude then falls for his cousin, Sue Bridehead.  There are at least two problems – his marriage to Arabella, and the family relationship.  And Sue.  What is she about?  That is what the book is about.  Throughout my reading of this novel, a song my parents loved, I think sung by Eddie Cantor, kept on resurfacing.

If you knew Susie, like I know Susie,

Oh, Oh, what a gal!

There’s none so classy

As this fair lassie…..

You can see Thomas Hardy as the link between George Eliot and D H Lawrence.  There are also many times when this novel reads like Days of Our Lives.  And toward the end, a mordant slice of Wozzek hits you smack in the face from nowhere.  At times I wondered if the author’s mind was too fast for his pen.  The changes of tempi for the various star-crossed lovers can be very unsettling.  There are times, too, when you think that you may be watching a puppet show predestined by the coolest Calvinist.  Is Jude too innocent and vulnerable?  Is Arabella too predictably devious?  And will the mercurial Sue ever find peace?  And then there are times when the book just sounds alarmingly modern – and worlds way from Dickens

This is the start of Jude’s problems.

That night he went out alone, and walked in the dark self-communing. He knew well, too well, in the secret centre of his brain, that Arabella was not worth a great deal as a specimen of womankind. Yet, such being the custom of the rural districts among honourable young men who had drifted so far into intimacy with a woman as he unfortunately had done, he was ready to abide by what he had said, and take the consequences. For his own soothing he kept up a factitious belief in her. His idea of her was the thing of most consequence, not Arabella herself, he sometimes said laconically.

When Hardy spoke of Sue – and he should have known her – he referred to ‘the elusiveness of her curious double nature.’  She says she loves Jude but she has a hang-up about sex – or men generally.  Consequently, the two ‘lovers’ devote time and love to each other – without getting it off.  If Jude was bloody frustrated, so was I.  Sue was in mortal danger of being branded a teaser, but the strain on our credulity, or patience, can be severe.

You may often think that this was a book just written for Bette Davis – who made all those films that left you wondering why people wanted to torture themselves over ‘love’- with oodles of exclamation marks.

‘Yes… But Sue—my wife, as you are!’ he burst out; ‘my old reproach to you was, after all, a true one. You have never loved me as I love you—never—never! Yours is not a passionate heart—your heart does not burn in a flame! You are, upon the whole, a sort of fay, or sprite—not a woman!’

Jude has a philosophical disposition; in another life he may have been right into bondage.  And not many stonemasons can reel off Aeschylus.

‘Nothing can be done,’ he replied. ‘Things are as they are, and will be brought to their destined issue.’

She paused. ‘Yes! Who said that?’ she asked heavily.

‘It comes in the chorus of the Agamemnon. It has been in my mind continually since this happened.’

‘My poor Jude—how you’ve missed everything!—you more than I, for I did get you! To think you should know that by your unassisted reading, and yet be in poverty and despair!’

After such momentary diversions her grief would return in a wave.

(The ‘this’ is the Wozzek interlude.)

In the Preface, Hardy said that a German reviewer had said that the heroine – Sue Bridehead –

…..was the first delineation in fiction of the woman who was coming into notice in her thousands every year – the woman of the feminist movement – the slight, pale ‘bachelor’ girl – the intellectualized, emancipated bundle of nerves that modern conditions were producing, mainly in cities as yet; who does not recognise the necessity for most of her sex to follow marriage as a profession, and boast themselves as superior people because they are licensed to be loved on the premises.  (Emphasis added.)

The novel came out in 1894 – to uproar – but that absolute blinder of a line was written in 1912:….‘because they are licensed to be loved on the premises.’   That was when women were trying to come out – amid the blood and guts of a fearful partition.  And that I think is why the story of Sue Bridehead is so hard and chancy.  She was some sort of assault pioneer, and that sort of soldier takes heavy casualties.  Coming out, like breaking up, is hard to do.  Had a woman written this book, it may have been called Sue the Obscure.

For all its problems – especially for a bloke in this century – this book is an engrossing read.  And I have a soft spot for it for another reason.  It was the favourite book of the late John Arlott, a cricket commentator whose voice could be recognised instantly across the oceans, and who loved to get very deep with a bottle of red in his hand.

 

 

MY TOP SHELF – 50 – Beowulf

 

[These are serialised extracts of all the fifty books referred to in a book published in 2015 called ‘The Top Shelf, or What Used to be Called a Liberal Education’.  The extracts are as originally published, and they come in the same order.]

BEOWULF

Seamus Heaney (translator)

Folio Society, 2010; bound in quarter burgundy buckram, with gold title and etching on cloth boards; gold trimmed pages; gold cloth slip case; illustrated by Becca Thorne.

So.  The Spear-Danes in days gone by

And the kings who ruled them had courage and greatness.

There is something about this poem Beowulf, which begins with the lines just quoted, that is at once mystical and elemental, misty but somehow internal.  It is as if we see ourselves but darkly, in some other plane.  It was composed in what we call Anglo-Saxon or Old English toward the end of the first millennium.  It was written in England about events in what are now called Denmark and Sweden.

Beowulf is a champion of the Geats.  He crosses the sea to help the Danes deal with a monster called Grendel.  He prevails, and then dies.  Like The Iliad, Beowulf ends with the funeral pyre of a hero.  If you like that kind of thing, you might see Beowulf as the missing link between The Iliad and Paradise Lost.

Great were the dangers to be overcome by Beowulf.

All were endangered; young and old

Were hunted down by that dark death-shadow

Who lurked and swooped in the long nights

On the misty moors; nobody knows

Where these reavers from hell roam on their errands.

So Grendel waged his lonely war,

Inflicting constant cruelties on the people,

Atrocious hurt.  He took over Heorot,

Haunted the glittering hall after dark

But the throne itself, the treasure seat,

He was kept from approaching; he was the Lord’s outcast.

These were hard times, heart-breaking….

Sometimes at pagan shrines they vowed

Offerings to idols, swore oaths

That the killer of souls may come to their aid

And save the people.  That was their way,

Their heathenish hope; deep in their hearts

They remembered hell.  (159-180)

It is hard to imagine someone better equipped to translate this great poem than the late Seamus Heaney, the distinguished Irish poet and scholar.

I came to translating Beowulf with a prejudice in favour of forthright delivery.  I remember the voice of the poem as being attractively direct, even though the diction was ornate and the narrative method at times oblique.  What I had always loved was a kind of foursquareness about the utterance, a feeling of living inside a constantly indicative mood, in the presence of an understanding that assumes you share an awareness of the perilous nature of life and are yet capable of seeing it steadily, and, when necessary, sternly.  There is an undeluded quality about the Beowulf poet’s sense of the world which gives his lines immense emotional credibility and allows him to make general observations about life which are far too grounded in experience and reticence to be called ‘moralising.’  These so-called ‘gnomic’ parts of the poem have the cadence and force of earned wisdom, and their combination of cogency and verity was again something that I could remember about the speech I heard as a youngster in the Scullion kitchen….The style of the poem is hospitable to the kind of formulaic phrases which are the stock-in-trade of oral bards, and yet it is marked too by the self-consciousness of an artist convinced that ‘we must labour to be beautiful.’

Here is some more of the remarkable poetry.

That great heart rested.  The hall towered,

Until the black raven with raucous glee

Announced heaven’s joy, and a hurry of brightness

Overran the shadows.  Warriors rose quickly

Impatient to be off; their own country

Was beckoning the nobles; and the bold voyager

Longed to be aboard his distant boat.  (1799-1807)

This is how Heaney saw the epic.

Grendel comes alive in the reader’s imagination as a kind of dog-breath in the dark, a fear of collision with some hard-boned and immensely strong android frame, a mixture of Caliban and hoplite.  And while his mother, too, has a definite brute-bearing about her, a creature of slouch and lunge on land if seal-swift in the water, she nevertheless retains a certain non-strangeness.  As antagonists of a hero being tested, Grendel and his mother possess an appropriate head-on strength.

The myth of the testing of the hero by a frightening instrument of evil is probably our favourite – right up to the movie Jaws.  But this epic is of interest to us also because it tells of the birth of our laws, in the replacement of the vendetta or blood-feud.

There was a feud one time, begun by your father.

With his own hands he had killed Heathaloaf

Who was a Wulfing; so war was looming

And his people in fear of it forced him to leave….

Finally I healed the feud by paying:

I shipped a treasure-trove to the Wulfings

And Ecgtheow acknowledged me with oaths of allegiance.  (459-473)

We might call this settling out of court.  It is not surprising that the scholar who trumpeted the claim of Beowulf to be taken as literature was named J R R Tolkien.

We learn that the object of the hero – as for Achilles – was to ‘gain enduring glory in a combat’ (1535/6).  It is right, then, that the poem ends with these lines.

They extolled his heroic nature and exploits

And gave thanks for his greatness; which was the proper thing

For a man should praise a prince whom he holds dear

And cherish his memory when that moment comes

When he has to be convoyed from his bodily home.

So the Geat people, his hearth companions,

Sorrowed for the lord who had been laid low.

They said that of all the kings upon the earth

He was the man most gracious and fair-minded,

Kindest to his people and keenest to win fame.  (3173-3182)

You do not need to crave immortality to see how the poet there speaks to all of us.  Heaney speaks of his ‘fondness for the melancholy and fortitude that characterised the poetry.’   He said that this poem has a ‘mythic potency’ that ‘arrives from somewhere beyond the known bourne of our experience, and having fulfilled its purpose…it passes once more into the beyond.’  Exactly – and is it not for this that we go to great writers?

 

 

Passing Bull 228 –Bull about paying the price

 

We don’t like paying tax but we don’t like bad roads or long waits to get into hospital or insufficient protection from the police.  It is the job of government to balance those impulses.  Most of the time, we get by, although some hiccups annoy us.  But for many reasons – including massive bribery – we can’t even get started sensibly on climate change.  Yes, people will lose money or jobs on restraining fossil fuel sources, but all the evidence is that the probabilities are that we will all be a lot worse off- especially those coming after us – unless we bite the bullet.  Most of Europe – including England – know this and are reacting.  But not us or the U S.  We cannot afford to pay the price. Indeed we elected a government that had expressly promised not to pay the price.  But balancing these contrary impulses is the first function of government.  No wonder our children and grand-children are in despair.

And the failure looks to be a failure of democracy.  MP’s from coal areas have far too much influence.  Some say the same about Christianity and abortion and assisted dying.

These failings came home to me reading about the abolition of the slave trade in England.  There was a massive cost to the English economy, and that was the basis of the opposition.  The parallel seems apposite.  But the English, driven by Evangelicals and Quakers, went ahead and prevailed.  Why?   Because that was the right thing to do.

We do look to be going backwards, and the backlash from those coming after us will be ferocious.

Bloopers

The low level of harm and the apology made by the Minister… to the Mayor…., along with the significant level of resources required to investigate were also factored in the decision [of the AFP not to investigate] not to pursue this matter.

AFR, 7 February 2020.

You know you are going bad when the rozzers say that there is only ‘a low level of harm’ when one politician alters a document to smear another politician.

Top Shelf – 49 – Gibbon

MEMOIRS OF MY LIFE

Edward Gibbon (1814)

Folio Society, 1991; bound in green cloth, gold embossed, in stone slip case.

I had now attained the solid comforts of life, a convenient well-furnished house, a domestic table, half a dozen chosen servants, my own carriage, and all those decent luxuries whose value is more sensibly felt the longer they are enjoyed…To a lover of books, the shops and sales in London present irresistible temptations…..

Before looking at what Gibbon said, you need either to recall or know that Gibbon was one of the most graceful writers of prose that England has produced.  He was also one of the most devastating hit-men that the world has seen.  Apart from the grace of his style, and the rhythm of his writing, he had a wickedly nice, dry irony.  Here is one short example:  ‘See the tragic and scandalous fate of an Archdeacon of royal birth, who was slain by the Turks as he reposed in an orchard, playing at dice with a Syrian concubine’.  Count the criminal libels or mere denigrations in that off-the-cuff remark about one dead man of God.

Here is my all-time favourite put-down by this author.  It is of the Emperor Gallienus.

In every art that he attempted, his lively genius enabled him to succeed; and as his genius was destitute of judgment, he attempted every art except the important ones of war and government.  He was a master of several curious but useless sciences, a ready orator and elegant poet, a skilful gardener, an excellent cook, and most contemptible prince.  When the great emergencies of state required his presence and attention, he was engaged in conversation with the philosopher Plotinus, wasting his time in trifling or licentious pleasures, preparing his initiation to the Grecian mysteries or soliciting a place in the Areopagus of Athens.  His profuse magnificence insulted the general poverty; the solemn ridicule of his triumphs impressed a deeper sense of the public disgrace.  The repeated intelligence of invasions, defeats and rebellions, he received with a careless smile; and singling out, with affected contempt, some particular production of the lost province, he carelessly asked whether Rome must be ruined unless it was supplied with linen from Egypt, and Arras cloth from Gaul.

There you have the style of Edward Gibbon, and the story of the decline and fall of Rome.

Gibbon came from a family of squires in the Weald of Kent.  He was not well enough to stay at Winchester.  His mother died from breeding six other children who also died.  His father retired from Parliament to return to live among the landed gentry.  He was a man of whim.  One such whim was to enrol Gibbon as a Gentleman Commoner at Magdalen College, Oxford.  In this autobiography Gibbon rained some venom on his old university.

The Fellows or monks of my time were decent easy men who supinely enjoyed the gifts of the founder.  Their days were filled by a series of uniform employments:  the chapel and the hall, the coffee house and the common room, till they retired weary and well satisfied, to a long slumber.  From the toil of reading or thinking or writing they had absolved their conscience, and the first shoots of learning and ingenuity withered on the ground without yielding any fruit to the owners or the public…..Their conversations stagnated in a round of college business, personal stories and private scandal; their dull and deep potations excused the brisk intemperance of youth; and their constitutional toasts were not expressive of the most lively loyalty for the House of Hanover. 

Gibbon was too young to enjoy ‘the taverns and bagnios of Convent Garden’.  Instead, he fell under the spell of the Church of Rome.  This was too much for his father, who banished him to Lausanne, where he stayed for five years to have that nonsense knocked out of him by Monsieur Pavilliard, a learned Calvinist minister.

Gibbon dropped a girlfriend when Dad took exception.  ‘I sighed as a lover.  I obeyed as a son.’  Both limbs of the equation were probably untrue, and we might hope that Gibbon later regretted that tart dismissal of his one and only love.  (Mademoiselle Churchod went on to other things.  She married Monsieur Necker, who became the Minister of Finance in France, and played a large part in the French Revolution, and she gave him a daughter, Mme de Staël.)

Gibbon served for a time in the militia, and remained in it for years, and we might imagine Captain Gibbon, the small man with the rather large and ridiculous head, jogging at the head of his bucolic Grenadiers.  He sought to get away from it all with nights of ‘bumperizing that left him in the morning where he could ‘do nothing … but spew’.

When looking back on his life, Gibbon had no doubt that it was formed by the nearly five years he had spent at Lausanne.  ‘Such as I am in genius or learning or in manners, I owe my creation to Lausanne ….  I had ceased to be an Englishman’.  But he had previously recorded that his taste for the French theatre had only ‘perhaps abated my idolatry for the gigantic genius of Shakespeare, which is inculcated from our infancy as the first duty of an Englishman’.

Gibbon embarked on the Grand Tour.  His lack of worldliness – he had been too young to visit the whores when he was at Oxford – may have left him even more at sea with the French ladies than David Hume had been.  He saw Voltaire perform in a play.  Then he came at last to Rome while he was still casting about for a subject for a history, for it was to writing a history that he would devote his life.  His mixed upbringing enabled him to give a more balanced view of the religious divide than others – ‘the Catholic superstition, which is always the enemy of reason, is often the parent of taste’.  The lines with which Gibbon celebrated his visit to Rome are still celebrated by his admirers.

My temper is not very susceptible of enthusiasm, and the enthusiasm which I do not feel I have ever scorned to affect.  But at the distance of twenty-five years, I can neither forget nor express the strong emotions which agitated my mind as I first approached and entered the eternal City.  After a sleepless night I trod with a lofty step the ruins of the Forum; each memorable spot where Romulus stood, or Tully spoke, or Caesar fell, was at once present in my eye;…several days of intoxication were lost or enjoyed before I could descend to a cool and minute investigation…In my Journal the place and moment of conception are recorded;  the fifteenth of October 1764, in the close of evening, as I sat musing in the Church of the Zoccalanti of Franciscan friars, while they were singing Vespers in the Temple of Jupiter on the ruins of the Capitol.  But my original plan was circumscribed to the decay of the City, rather than the Empire; and, though my reading and reflections began to point towards the object, some years elapsed and several avocations intervened before I was seriously engaged in the execution of that laborious work.

The six volume work of The Decline and Fall of the Roman Empire was indeed to be his life’s work.  Gibbon greatly admired the History of Hume.  Gibbon’s first work had been written in French, but Hume persuaded him to write his History in English.  Hume thought, being an astute Scot, that the flowering of America would lead to English having the greater coverage.  Hume, and most of the rest of Britain, were generous in their praise of the History as it came out, volume by volume.  The Church was not.

Gibbon held court and would allow little chance of reply.  But this Georgian England had a vivacious conversational character.  He once unloaded one of his best foreign anecdotes and was waiting for his tribute of applause.  ‘When a deep-toned but clear voice was heard from the bottom of the table, very calmly and civilly impugning the correctness of the narrative, and the propriety of the doctrines of which it had been made the vehicle.’  This was no less than William Pitt the Younger (the youngest Prime Minister of England at the age of 24).  Gibbon was obliged to give ground and then excused himself and left the room.  He was apprehended looking for his hat, and when asked to return he said that the gentleman who had interrupted him was ‘extremely ingenious and agreeable, but I must acknowledge that his style of conversation is not exactly what I am accustomed to, so you must positively excuse me’.  Jane Austen could have written that.

He died on 16 January 1794 of an appalling illness that had long troubled him.  He was at peace and without fear, but it is a very fair guess that no other writer of history has been so read, so admired, and so loved.  It is certainly the case that this rather absurd Englishman still talks to us and enlightens us after we have gone more than two hundred years down the road.

The great historian looked for patterns in the past.  He was not to devote his life’s work to describing outlines of spent tea leaves.  ‘History to a philosopher’ he said, ‘is what gambling was to the Marquis de Dangeau:  he saw a system, relations, consequences, where others saw only the caprice of fortune’.  Gibbon was describing the decline and fall of an empire.  He saw that decline occurred with the rise of religion; he asked why ancient civilisation failed and if it could happen again.

Perhaps it was because Georgian English gentlemen suspected that their England suffered from similar lesions on its society that they were content to allow Athens and Rome to be described as civilised.  But it is a little curious that educated Europeans should have sought to find how this mighty and civilised empire was brought low – was felled in truth – by a scrawny ragamuffin hasid whose teaching of the Sermon on the Mount underwrote all of what the English would come to call civilised about their empire.  And how could Rome have sought to hold an empire under arms if it subscribed to the view that it is the meek who inherit the earth?

It is not surprising that Gibbon followed what might be called the party line in describing Rome as civilised, but we might notice that he began his first published work, the Essai, with the following words of eternal verity: L’histoire des empires est celle de la misere des hommes. ‘The history of empires is the history of the misery of mankind.’

Sadly, space allows only a couple of quotations on the Crusades:

… the name and nature of a ‘holy war’ demands a more rigorous scrutiny;  nor can we hastily believe that the servants of the Prince of Peace would ensheath the sword of destruction unless the motive were pure, the quarrel legitimate, and the necessity inevitable. 

Gibbon attacks indulgences with savagery.  He then goes on to describe the beginning of the first Crusade.

Some counts and gentlemen, at the head of three thousand horse, attended the motions of the multitude to partake in the spoil, but their genuine leaders (may we credit such folly?) were a goose and a goat, who were carried in the front, and to whom these worthy Christians ascribed an infusion of the divine spirit.  Of these, and of other bands of enthusiasts, the first and most easy warfare was against the Jews, the murderers of the Son of God.  In the trading cities of the Moselle and the Rhine, their colonies were numerous and rich, and they enjoyed under the protection of the Emperor and the Bishops the free exercise of their religion.  At Verdun, Trèves, Metz, Spires, Worms many thousands of that unhappy people were pillaged and massacred, nor had they felt a more bloody stroke since the persecution of Hadrian ….  The more obstinate Jews exposed their fanaticism to the fanaticism of the Christians, barricadoed their houses, and precipitating themselves, their families and their wealth into the rivers of the flames, disappointed the malice, or at least the avarice, of their implacable foes.

Gibbon next savages the institution of knighthood and then goes on to describe the taking of the Holy City, Jerusalem.

A bloody sacrifice was offered by his mistaken votaries [Tancred’s] to the God of the Christians:  resistance might provoke, but neither age nor sex could mollify their implacable rage: they indulged themselves three days in a promiscuous massacre; and the infection of the dead bodies produced an epidemical disease.  After seventy thousand Moslems had been put to the sword, and the harmless Jews had been burnt in their synagogue, they could still reserve a multitude of captives whom interest or lassitude persuaded them to spare.  ….  The Holy Sepulchre was now free; and the bloody victors prepared to accomplish their vow.  Bare-headed and bare foot, with contrite hearts and in a humble posture, they ascended the hill of Calvary, amidst the loud anthems of the clergy; kissed the stone which had covered the Saviour of the world;  and bedewed with tears of joy and penitence the monument of their redemption.  This union of the fiercest and most tender passions has been variously considered by two philosophers: by the one, as easy and natural; by the other, as absurd and critical.

The first philosopher referred to is David Hume; the second was Voltaire.

Here is Gibbon on Israelite conquests.

When the posterity of Abraham had multiplied like the sands of the sea, the Deity, from whose mouth they received a system of laws and ceremonies, declared himself the proper and as it were the national God of Israel; and with the most jealous care separated his most favourite people from the rest of mankind.  The conquest of the land of Canaan with so many wonderful and so many bloody circumstances, that the victorious Jews were left in a state of irreconcilable hostility with all their neighbours.  They had been commanded to extirpate some of the most idolatrous tribes, and the execution of the Divine will had seldom been retarded by the weakness of humanity.

Here is Gibbon on the absolutism of the followers of Jesus of Nazareth.

But the primitive church, whose faith was of a much firmer consistence, delivered over, without hesitation, to eternal torture, the far greater part of the human species. A charitable hope might perhaps be indulged in favour of Socrates, or some other sages of antiquity, who had consulted the light of reason before that of the Gospel had arisen.  But it was unanimously affirmed that those who, since the birth or the death of Christ, had obstinately persisted in the worship of the daemons, neither deserved nor could expect a pardon from the irritated justice of the Deity.  These rigid sentiments, which had been unknown to the ancient world, appear to have infused a spirit of bitterness into a system of love and harmony.

Finally, this is Gibbon on celibacy.

Since desire was imputed as a crime, and marriage was tolerated as a defect, it was consistent with the same principles to consider a state of celibacy as the nearest approach to Divine perfection. It was with the utmost difficulty that ancient Rome could support the institution of six vestals [virgins] but the primitive church was filled with a great number of persons of either sex who had devoted themselves to the profession of perpetual chastity.

In the footnote, Gibbon records of the six Roman maids: ‘nor could the dread of the most horrible death always restrain their incontinence.’

How did our brothers and sisters of Asia fare? Gibbon said that for all his powers of eloquence, Mohammed was an illiterate barbarian, although he says that the ‘base and plebeian origin of Mohammed is an unskilful calumny of the Christians.’ (How did they class the origin of Jesus of Nazareth?)  Gibbon does of course praise Mohammed for dispensing with priests, sacrifices, and monks, but he rejects the doctrine of damnation by which ‘the greater part of mankind has been condemned for their opinions.’ Gibbon was, like most people, fascinated by sex.  He had this comment on Paradise.

Seventy-two Houris, or black-eyed girls, of resplendent beauty, blooming youth, virgin purity, and exquisite sensibility, will be created for the use of the meanest believer; a moment of pleasure will be prolonged to a thousand years, and his faculties will be increased a hundredfold to render him worthy of the felicity ….This image of carnal paradise has provoked the indignation, perhaps the envy, of the monks…

But this Paradise was assured to those who died for the faith since the Prophet had said ‘The sword is the key of heaven and of hell: a drop of blood shed in the cause of God, a night spent in arms, is of more avail than two months of fasting or prayer…’ .

It is very hard now to imagine history in any language being written with such pitch and such intensity.  But he may have unsheathed a sword the consequences of which he never intended.

In Gibbon’s view, Greek philosophy had infected the teaching of those following Jesus of Nazareth.  It was notorious that many of the divisions of the early church were fed on thinking that came to its members from the Platonist school.  Gibbon thought that Platonism did not mix well with Christianity.

But theology, which it was incumbent to believe, which it was impious to doubt, and which it might be dangerous, even fatal, to mistake, became the familiar topic of private mediation and popular discourse.  The cold indifference of philosophy was inflamed by the fervent spirit of devotion.

It may have been like global warming disputants trying their hand with the theory of relativity or string theory.

The familiar study of the Platonic system, a vain and argumentative disposition, a copious and flexible idiom, supplied the clergy and the people of the east with an inexhaustible flow of words and distinctions; and, in the midst of their fierce contentions, they easily forgot the doubt which is recommended by philosophy, and the submission which is enjoined by religion.

It has to be said that these observations ring many bells, and not just in the context of the Christian church.

Baroque sentences flowed out Gibbon just like baroque music flowed out of Mozart.  His canvass blazes like that of El Greco.  He had a sense of grace and rhythm that would have appealed to the instincts of Errol Garner and which had a lasting effect on one of his greatest followers.

For my own part, looking out upon the future, I do not view the process with any misgivings.  I could not stop it if I wished; no one can stop it.  Like the Mississippi, it just keeps rolling along.  Let it roll.  Let it roll on full flood, inexorable, irresistible, benignant, to broader lands and better days.

May I conclude on a whim of my own fancy?  For me, Gibbon was and is the greatest writer in prose of them all.

 

Here and there – Evading the question

 

People in public life are trained to evade answering questions.  They practise it.  It becomes second nature.  You might think that people in positions of trust should be obliged to answer questions about their discharge of that trust candidly and in good faith.  The law and I would agree with you.  But that is not what happens.  What we get are evasion, equivocation and half-truths.  The idea is never to give a straight answer.  Even if you are just asked to say what time it is.

Here are some of the most popular techniques.

  1. Restate or reframe the question so that you can answer it favourably to yourself. Mediators are trained to do this in a good way to try to take some heat out of the dispute.  It is notorious that opinion polls can be slanted by the way the question is framed.  ‘Do you think that it is in the public interest for the media to have more protection – more freedom of speech, if you like – in reporting on political issues?’  That is very different to: ‘Should we give Rupert Murdoch carte blanche to walk all over us in political cat fights?’  Instead of saying what your party has done, say what its policy is.  This is very common – offering motherhood in place of fact.  Alternatively, instead of talking about policy, say what your party has in fact done.  This simple if blatant evasion is standard.  For question A you have response X; for question B you have response Y; and so on.
  2. Challenge a premise of the question. ‘When did you stop beating your wife?’ is objectionable as it assumes that you do beat your wife.  What about: ‘Why do you call this informant a whistle-blower?  He is just a common garden snitch and liar.’  ‘I object to your labelling this man as a conservative.  He is a closet lefty…anarchist ….alarmist’ …..and so on.
  3. If you get a chance to say that the question is ambiguous, think about saying so. (Some lawyers think that if their opponent looks clumsy, it may be best to leave them to try to dog paddle to shore on their own.)
  4. Brand the question as hypothetical and say that you don’t answer hypothetical questions. This may sometimes be true.
  5. Or invoke some other trite label. ‘I don’t engage in the Canberra bubble’, ‘water cooler gossip’, ‘locker room banter’, ‘hearsay’, ‘bloviations of the elites’, ‘virtue signalling’, ‘politically motivated’, ‘fake news’ or ‘deep state’……  Or, I speak to ‘quiet Australians’ (who never answer back).  You can get the full range of this nonsense every Saturday in The Weekend Australian.  Seasoned operatives take the view that the more meaningless and inflammatory the label is, the better off is the response.  It may depend on the acuity of the audience.
  6. If asked about the past say that you are focussed on the future. One Australian Minister, whose sense is matched by their deportment – the avoidance of gender is deliberate – always ‘looks to move on.’  (Walking backwards for Christmas does not enjoy a good pedigree.)  Then, when asked about the future, you decline to speculate on the suppositious or academic.  The golden template is in these immortal lines from the greatest movie ever made.

YVONNE: Where were you last night?

RICK: That’s so long ago, I don’t remember.

YVONNE: Will I see you tonight?

RICK: I never make plans that far ahead.

But, alas, that kind of spark is missing from those who bring coals into our parliament.  (On a good day, they remind me of a bus driver from Box Hill in the Fifties.)

  1. If the matter is sensitive – say gun control or climate change – say that current or recent events make it in bade taste to allow ‘political point scoring’ to cloud delicate and personal issues. You can use the word ‘opportunistic’ – and hope that you are not asked to say what you mean.  In this country at least, this is a dead horse – except for followers of Sky After Dark or The Australian.
  2. A primary object is to keep onside that part of the audience that fears doubt and is made insecure by a want of finality. (This is sometimes called ‘the base’ – a useful double entendre.)  That sadly is a large part of the audience (although not as large as in the U S).  For that purpose, keep serving up the same old platitudes.  The simpler, the better.  But be careful about mixing escalation and increase in volume with repetition.  (The leading modern exponent of that technique is currently – in November, 2019 – heading for a gutser.)
  3. Be like a good poker player. Just bluff hard and big and look them dead in the eye and dare them to call you out.  After all, this is all about saving   You could model this aspect on President Xi.  (Who would play poker with that sphinx?)
  4. Blind them with science or big words. This is mandatory in any discussion of science or economics.  (The two are very different things.)  Remember the immortal advice cited by Professor Frankfurt in On Bullshit – ‘Never tell a lie when you can bullshit your way through.’  It’s like throwing sand in your protagonist’s eyes.  But this response, too, requires care.  Your supporters take offence if they think you are deliberately aiming to go above their heads (which it is alarmingly easy to do).
  5. Bury them with detail. ‘Yes, in order to deal with that issue in the manner it deserves, I need to take you to some of the figures……’  This is called a snow job.  It is very common in legal and commercial negotiations.  You may look aggrieved if you are called on to get to the point.  ‘This is not a matter to be entered into lightly or ill-advisedly.’  You could then give the Andrew Bolt look of dolour – with appropriate hand gestures.
  6. Alternatively, you may say that the question calls for an opinion that you are not qualified to give. You must apply this technique with extreme care –especially if you devote most of your time to doing just that (which is the case for many lawyers and most politicians).
  7. A similar caution goes for slowing down the process by taking an inordinate time to answer the question – or, more properly, to respond to the question. This technique can be useful in dealing with tyro journalists or barristers in cross-examination, but it may not fit your schtick – this is no place for modesty – and it may not appeal to that ghastly mirage called your ‘base.’  They are happy with front and bluff, and not impressed by a devotion to care; or, for that matter, by fidelity of any colour.
  8. Depending on the forum, you may choose to be pleasant – you should always at least look polite and courteous and under control. If you are prepared to resort to flattery, leave aside the trowel.  And ‘That’s a very good question’ is badly overdone.  And don’t ramble.  You might convict yourself out of your own mouth.  And avoid traps like ‘sincerely’ or ‘honestly.’  (What is your condition when you do not expressly adopt that position?)
  9. An alternative is to belittle the questioner. This too requires care and skill.  Many people don’t like bullies.  (That proposition is just one of those that is refuted by the current rise of two worst leaders in the West.)  Cajolery may be better.  (Blackmail of course should not be undertaken in public, and then only under total and detachable and renounceable cover in private – witness aid to the Ukraine.)
  10. Attack the questioner head on. ‘Well, that’s just the kind of bias I would expect from the ABC.’  (Compare: ‘Well, Mr Hawke, what does it feel like to have blood on your hands at last?’)
  11. The Latin tag for playing the man is ad hominem ( ‘to the man’). It is repellently overused by diverting attention to the other side.  ‘Well, we are not perfect.  We are realists.  But just have a look at the mess that our opponents left for us – and for you, the people.’  This is intellectual trash, but you get truckloads of it every day, and the people out of doors don’t hear the sighs or groans.
  12. If in doubt, start a fight. This has been the resort of lawyers and business people from time out of mind.  It comes ever so naturally to those who appeal to the gutter, because they know that the gutter enjoys a good fight.
  13. The alternative to a fight is just to walk out. That may be easier to live with than an admission of guilt – and the whole point of the exercise is to avoid precisely that.

They are some of the more common techniques.  The questioner must recall one of the major rules of cross-examination.  Make sure that the witness answers the question.  If you get a snow job or some other windy evasion, bring them back to the point.  ‘Well, are you quite finished?  Are you sure?  Did you understand the question?  Well then, could you now please answer it?’  It’s about even money that they will say that they forget what the question was – and sometimes that may be the case.

Professor Frankfurt cites two definitions of ‘bull’: ‘Talk which is not to the purpose; ‘hot air’; ‘slang term for a combination of bluff, bravado, ‘hot air’ and what we used to call in the Army ‘kidding the troops’’.  He spoke of people ‘unconstrained by a concern with truth.’

It is just this lack of connection to a concern with truth – this indifference to how things really are – that I regard as the essence of bullshit…..For the essence of bullshit is not that it is false but that it is phony….The bullshitter is faking things.  But this does not mean that he necessarily gets them wrong….Our natures are, indeed, elusively insubstantial – notoriously less stable and less inherent than the natures of other things.  And insofar as this is the case, sincerity itself is bullshit.

That book was published in 2005.  Since then, bull has become an art form and reached its apotheosis in Messrs Trump and Johnson.

Now, you may well think that whatever else we have been talking about, it is not honesty.  I agree with you.  But that is where we are now.

Here and there -Contracts and status of medieval vassals and kings

 

I

On reading again Maine on Ancient Law, and Pollock and Maitland The History of English Law before the time of Edward I, I was once more made curious about the reluctance of English lawyers, historians and philosophers to acknowledge the importance of contract in the development of the common law – including in that term the constitution of England.

It was the insight of Sir Henry Maine that ‘the movement of the progressive societies has hitherto been a movement from Status to Contract.’  Maine made that observation before ideologues of a certain bent, mostly those in the service of a certain press baron, invested the term ‘progressive’ with a load of rather smelly baggage, but it is a comfort to most of us to know that rather than just inherit some standing in the world (status), we can have our say in it by dealing with others for that purpose (contract).  Indeed, that great shift signifies the beginning of what we call the modern era after the waning of the Middle Ages.  And it coincides with another shift – from the supernatural to science, and from the jurisdiction of God and his church to that of the people on this earth.

II

The very long epoch called the Middle Ages was characterised by what we now call feudalism.  I sought to describe the compact at the heart of feudalism as follows.

A peasant farmer would go to the man in charge of the manor or village and offer to provide services, including what we would now call military service, in return for the protection afforded by the manor or village.  The ceremony was simple.  One man put his hands between the hands of the other and said ‘I am your man’.  This was called doing homage. 

In a world where God was everywhere, and where a transaction may not be thought to be worth much if God was not involved or invoked, there was often a further ceremony or rite.  The man paying homage, whom we call the vassal, might swear on the Gospel to be faithful to his lord or master.  This was called fealty, and it was given at a time when fear of eternal damnation was very real.  The compact lasted for the joint lives of the two people involved. ……

So, what we have is an exchange of promises – you look after me and I will work or fight for you – that were intended to be binding and to be acted upon for life.  That is what we call a contract. 

Maitland said that ‘Glanvill and Bracton seem to lower their voices to a religious whisper when they speak of homage’ but he went on to say:

The contract was far from being a one-sided one.  The lord was bound to defend and warrant his gift….But the primary obligation [was] the duty of defending his tenant in possession ‘against all men who can live and die.’  If the tenant was attacked by process of law, he vouched his lord, he called upon his lord to defend the action and the lord if he did his duty defended it.  Now here we see a great force at work.  Do what we may to make all men equal before the law, a rich man has and must always have great advantages in litigation…..

The contract at the bottom of vassalage was said by Professor Milsom to be ‘a relationship of reciprocal obligations…Now he [the lord] buys services and pays directly in land…He buys a man.’  You may wish to take care about repeating that last statement in some quarters.

III

We might wonder how a poor tenant might seek to enforce such a right as matter of law.  The lord could enforce his rights under the compact by seizing and converting goods of the tenant without any intervention by the courts.  This was the remedy called ‘distress.’  It was a burning issue because it was so open to oppression and abuse.  Simon de Montfort called it ‘the beginning of all wars.’  The Year Books show a judge in 1310 saying that a ‘wicked ribald of a bailiff…may cause a poor man by coercion to do a suit.’

The wrongs inflicted under the banner of distress had led to the passing of the statute of Marlborough in 1267.  This law severely limited the remedy of distress, to the extent that Maitland said that it ‘in many ways marks the end of feudalism.’  And as if to underline Maitland’s point about the advantages of the rich man in litigation, the statute began with an alarming proclamation of equality 500 years before the Bastille fell.  Section 1 is still part of the law of England:

Whereas at the time of a Commotion late stirred up within this Realm, and also sithence, many great Men, and divers other, refusing to be justified  by the King and his Court, like as they ought and were wont in Time of the King’s noble Progenitors, and also in his Time; but took great Revenges and Distresses of their Neighbours…..It is Provided, agreed, and granted, that all Persons, as well of high as of low Estate, shall receive Justice in the King’s Court; and none from henceforth shall take any such Revenge or Distress of his own Authority, without Award of  Court, though he have Damage or Injury, whereby he would have amends of his Neighbour either higher or lower.  [Emphasis added.]

Notice that this statute when it becomes operative says that it ‘is Provided, agreed, and granted that …’  What could be a more natural way of saying of a resolution of a dispute than that ‘the parties agree…..’?

IV

Now, when we speak of ‘contract’ in this context, we use the term as it is used now in our law.  The common law was nowhere near that point in the thirteenth century, much less anywhere near the doctrine of what we call ‘consideration.’  The first text of English law, published in the 12th century, said simply ‘It is not the custom of the Lord King to protect private agreements.’

The notion of contract had long been settled in Roman law, but not in ours.  The jury was yet to emerge from its cocoon.  Remedies for breach of covenant and recovery of debt or taking of accounts were being developed in the ad hoc manner of the common law, but we are not precluded from applying our concepts to medieval transactions and instruments.  The common law was then locked into issues of form – the remedy revealed the right – but the disputes over the remedy of distress show that the basic feudal compact was enforceable as a matter of law.

It may seem odd that we use our current concepts to explain what happened in a different era.  We would not feel any such oddity if we were talking of changes in learning about science.  After referring to the dictum of Maine with which we started, Maitland said that Maine ‘was quick to add that feudal society was governed by the law of contract’.  He went on, in his hallmark spritely style.

There is no paradox here.  In the really feudal centuries men could do by a contract, by the formal contract of vassalage or commendation, many things that could not be done nowadays…Those were the golden days of ‘free’ if ‘formal’ contract.  The idea that men can fix their rights and duties by agreement is in its early days an unruly, anarchical idea.  If there is to be any law at all, contract must be taught to know its place.

V

Whole libraries have been written about the abstract idea of the ‘social contract’, but the English for some reason are very coy about seeing that the two principal instruments of their constitution – Magna Carta, 1215 and the Bill of Rights, 1689 – represent actual contracts between the Crown and its subjects.

Each of them is what we lawyers would now call a service agreement or employment contract.  There is however this difference.  Not many CEOs would enter into an agreement for an indefinite time with the board of their company on the basis that they were locked in indefinitely unless both agreed otherwise.  This job was for life.

Each of those two contractual instruments has been set out and adopted in a statute of the parliament.  The parties to each such agreement intended it to be legally binding.  Each contained mutual promises.  Each is indisputably a part of the constitution of England.  Each represented an agreement between the Crown and the people that was intended to resolve civil strife or uncertainty, and to seek to avoid similar strife in the future by defining the rights and duties of the Crown and the people by a binding compact.  Each is in substance an agreement between the Crown and the people.  Each is a form of social compact that the parties – the Crown and the people – have adopted as the law.  Why should we not see each instrument as a legally binding contract?

How would the people be able to enforce these compacts if the Crown reneged?  If I borrow money from a bank to buy a house, the bank takes a mortgage and can sell me up if I default.  If a company borrows the money, the bank can send in receivers and managers if the company defaults.  In either case, the bank takes possession of the mortgaged property.  Going to court is not the only, or the preferred, way to enforce a contract.  It is better for a party to have taken and to be able to enforce a security.  In each of these settlements, the Crown gave security to the people to enable the settlement to be enforced against the Crown.

VI

In Magna Carta the barons opted for the model of the receiver and manager.  Article 61 refers expressly to security (securitas) and it is a security that not even the most over-mighty and overbearing corporation would now dare to seek.  It provides that if the king defaults, the barons can give him a notice to remedy that default.  If the king does not comply, a committee of twenty-five barons ‘together with the community of the entire country, shall distress and injure us in all ways possible – namely, by capturing our castles lands and possessions and in all ways that they can – until they secure redress according to their own decision, saving our person and the person of our queen, and the persons of our children.’(Emphasis added.)

Do you see the reference to the remedy of distress?  It is what we would call distress on steroids that no bank in the western world would dare go near (and which gave the pope some ammunition to annul it).  This led Theodore Plucknett in his Ford Lectures to say that ‘this chapter of the great charter is carefully drawn in the form of a covenant for distress.’

The momentary appearance of distress in the higher altitudes of constitutional law will serve to remind us of its great effectiveness, and it was thought to afford a substantial security for the king’s undertakings in the charter.  It will also remind us that distress was one of the commonest casualties of medieval life which might befall any man, high or low, at any moment.

It also reminds us that the barons had their king taut over the proverbial barrel, and reduced by this contract to the status of the most vulnerable tenant or vassal.  (King John had form with the latter as a vassal of Rome.  History also credits him with at least five bastards and taking a bath every three weeks.)

Perhaps the significance of this grand medieval compact is that the king was driven to agree to it – and his successors would be driven to adopt and adhere to it.  We might be reminded of Mafia dons coming together to ‘make the peace’ – or of that glorious re-enactment of the rite and ceremony of homage and fealty in the grand first scene of the movie of The Godfather. 

But it would now be hard for a king to say that he reigned by the grace of God, when the truth was that he was only still there because he had done a deal with his principal minders, the barons.  This looks like a shift from status to contract at the highest level on this earth.  And it was not just lawyers who would be able to say that the king was under the law, because the law made the king.

VII

In the Bill of Rights, the Commons elected to go for another kind of enforcement.  It provided that ‘keeping a standing army within the kingdom in time of peace, unless it be with the consent of parliament, is against the law’ and then, immediately, ‘the subjects which are Protestants may have arms for their defence suitable to their condition and as allowed by law.’  In the idiom of the shorter form of cricket, here is the equation – we can have arms; Your Majesty cannot (except on our terms); if we have a falling out, we will be armed, and you will not; if there is a fight, can you guess who will win?

The government may have been centred on London, but it was carried out, if necessary by force, in the shires and in the counties.  Sir Jack Plumb said:  ‘The Bill of Rights had its sanctions clauses – there was to be no standing army and Protestant gentlemen were to be allowed arms; the right of rebellion is implicit.’   The phrase ‘right of rebellion’ might make constitutional lawyers blush*, but Sir Jack may have had in mind our current law of the right of the innocent party to accept the conduct of a guilty party as the repudiation of a contract, so bringing it to an end.  Plumb had also said that: ‘…the power of the 17th century gentry was sanctioned by violence’ and that ‘…by 1688, violence in politics was an Englishman’s birth-right’.

The English of course, being sensible, just let all this odd stuff about the right to bear arms sink into history.  Sadly, it still raises hell in the largest of its former colonies.

VIII

What we now call the right of a party to treat a contract as at an end if the other party repudiates that contact is in truth the notion that underlay the Glorious Revolution and the American Revolution.  Jefferson adapted the English template in their Bill of Rights in his Declaration of Independence.  That the contracts in Magna Carta and the Bill of Rights were later embodied in statutes does not mean that the contracts were at an end.  They were simply translated into the highest form of binding legal obligation.

We need not be surprised to see contracts being entered into on high – by the highest on this earth.  We do, after all, speak of a people whose religious faith derives from a book that holds that God himself enters into covenants with peoples that are, for people of that faith, binding beyond any power known to this world.

The word ‘covenant’ occurs at least 23 times in Genesis and 13 times in Exodus, generally referring to the covenant between God and his chosen people.  The Latin word is either foedus (normally ‘compact’ or ‘treaty’) or pactus (normally ‘contract’ or ‘agreement’).  If a people could covenant with God, they could covenant with their king; indeed, for people of that faith, nothing could be more natural or ordained than a covenant between a people and their king.  And the English at relevant times were wont to see themselves as the chosen people – not least those of the elect who took ship on the Mayflower.

IX

At about the time of Magna Carta, the Hungarians agreed to what was called The Golden Bull and the Spaniards agreed to a Privilegio de la Union, but neither achieved the standing of Magna Carta or anything like it.  There might have been something in the air.  The famous Sachsenspiegel had these words: ‘A man may resist his king and judge when he acts contrary to law and may even help to make war on him….Thereby, he does not violate the duty of fealty.’

This was the ‘right of resistance’ which, Marc Bloch said, ‘resounded in the thirteenth and fourteenth centuries from one end of the Western world to the other, in a multitude of texts.’  What we see is mankind groping its way to a realisation that people may have legal rights arising out of an agreement between a man and his lord or a people and their king.

Marc Bloch concluded his great work Feudal Society with these words:

Nor was it an accident that in Japan, where the vassal’s submission was much more unilateral and where, moreover, the divine power of the Emperor remained outside the structure of vassal engagements, nothing of the kind emerged from a regime which was nevertheless in many respects closely akin to the feudalism of the West.  The originality of the latter system consisted in the emphasis that it placed on the idea of an agreement capable of binding the rulers; and in this way, oppressive as it may have been to the poor, it has in truth bequeathed to our Western civilization something with which we still desire to live.

We see here, then, the start of the process under which the rights of people derive from contract rather than status.  It is here then that some will see truly heroic energy and, perhaps for the first time, the start of a process for recognising human rights on which hangs our whole concept of western civilisation.  And it might all be said to have started with some sorry disputations about the forms of medieval writs.

But getting something good after a grubby kick-off is something that the English were good at once – at least in a previous manifestation; now they look to be locked into a sooty reverse.

*Compare the settlement entered into by Henry III after the battle of Lewes: the phrase ‘rise against us’ (contra nos insurgere) is expressly stipulated: see A L Poole, From Domesday Book to Magna Carta, Oxford, 1951, 476, note 3.  The author there queries the Plucknett view – this distress, if fairly invoked, would have been a licensed revolt.

NOTES

Maine: Ancient Law, John Murray, 1861, 170

Feudal compact: Gibson, Geoffrey, The Medieval West (Volume II of A History of the West), Amazon, 2014(I have also used remarks in a book The Common Law, A History, A S P, 2012, and a paper Contract in the English Constitution, 2014, in Looking Down the Well, Papers on Legal History, Amazon, 2015.)

Maitland on homage: F Pollock and F W Maitland, The History of English Law before the time of Edward I, Cambridge, 1895, Vol I, 277, 287.  (I refer to this as Maitland, since he wrote all but the first chapter.)

Milsom on buying a man: S F C Milsom, The Legal Framework of English Feudalism, C U P, 1976, 39

Simon de Montfort: T F T Plucknett, Legislation of Edward I, Oxford, 1949 (Ford Lectures), 58

Year Books: Year Books of Edward II (Selden Society) 1V. 161 (1310), Bereford, CJ, cited in Plucknett, 52, note 2

Statute of Marlborough: 52 Henry III

Maitland on: cited in Plucknett, 23

Not the custom: Glanvill, Laws and Customs of England, Nelson, 1965, 132

Maitland on no paradox: above, Vol.2, 232-233

Magna Carta: statute in 1297, 25 Edward I

Bill of Rights: [1688] I William and Mary Sess. II (Bill of Rights) c. II

Plucknett on Magna Carta: above, 76

Plumb on Bill of Rights: J H Plumb, The Growth of Political Stability in England, 1675-1725, Macmillan, 1967, 19, 21, and 64

Vassal homage and Sachsenspiegel: Bloch, Feudal Society, Routledge, 2nd Ed, 1962, 451.  (That great historian, and great man, is entitled to the highest respect on any aspect of feudalism or the medieval world, but we might doubt whether that ‘right of resistance’ applied in England up to the death of Edward I in 1307.)

Bloch on no accident: again, 452.

MY TOP SHELF – 49

 

[These are serialised extracts of all the fifty books referred to in a book published in 2015 called ‘The Top Shelf, or What Used to be Called a Liberal Education’.  The extracts are as originally published, and they come in the same order.]

MEMOIRS OF MY LIFE

Edward Gibbon (1814)

Folio Society, 1991; bound in green cloth, gold embossed, in stone slip case.

I had now attained the solid comforts of life, a convenient well-furnished house, a domestic table, half a dozen chosen servants, my own carriage, and all those decent luxuries whose value is more sensibly felt the longer they are enjoyed…To a lover of books, the shops and sales in London present irresistible temptations…..

Before looking at what Gibbon said, you need either to recall or know that Gibbon was one of the most graceful writers of prose that England has produced.  He was also one of the most devastating hit-men that the world has seen.  Apart from the grace of his style, and the rhythm of his writing, he had a wickedly nice, dry irony.  Here is one short example:  ‘See the tragic and scandalous fate of an Archdeacon of royal birth, who was slain by the Turks as he reposed in an orchard, playing at dice with a Syrian concubine’.  Count the criminal libels or mere denigrations in that off-the-cuff remark about one dead man of God.

Here is my all-time favourite put-down by this author.  It is of the Emperor Gallienus.

In every art that he attempted, his lively genius enabled him to succeed; and as his genius was destitute of judgment, he attempted every art except the important ones of war and government.  He was a master of several curious but useless sciences, a ready orator and elegant poet, a skilful gardener, an excellent cook, and most contemptible prince.  When the great emergencies of state required his presence and attention, he was engaged in conversation with the philosopher Plotinus, wasting his time in trifling or licentious pleasures, preparing his initiation to the Grecian mysteries or soliciting a place in the Areopagus of Athens.  His profuse magnificence insulted the general poverty; the solemn ridicule of his triumphs impressed a deeper sense of the public disgrace.  The repeated intelligence of invasions, defeats and rebellions, he received with a careless smile; and singling out, with affected contempt, some particular production of the lost province, he carelessly asked whether Rome must be ruined unless it was supplied with linen from Egypt, and Arras cloth from Gaul.

There you have the style of Edward Gibbon, and the story of the decline and fall of Rome.

Gibbon came from a family of squires in the Weald of Kent.  He was not well enough to stay at Winchester.  His mother died from breeding six other children who also died.  His father retired from Parliament to return to live among the landed gentry.  He was a man of whim.  One such whim was to enrol Gibbon as a Gentleman Commoner at Magdalen College, Oxford.  In this autobiography Gibbon rained some venom on his old university.

The Fellows or monks of my time were decent easy men who supinely enjoyed the gifts of the founder.  Their days were filled by a series of uniform employments:  the chapel and the hall, the coffee house and the common room, till they retired weary and well satisfied, to a long slumber.  From the toil of reading or thinking or writing they had absolved their conscience, and the first shoots of learning and ingenuity withered on the ground without yielding any fruit to the owners or the public…..Their conversations stagnated in a round of college business, personal stories and private scandal; their dull and deep potations excused the brisk intemperance of youth; and their constitutional toasts were not expressive of the most lively loyalty for the House of Hanover. 

Gibbon was too young to enjoy ‘the taverns and bagnios of Convent Garden’.  Instead, he fell under the spell of the Church of Rome.  This was too much for his father, who banished him to Lausanne, where he stayed for five years to have that nonsense knocked out of him by Monsieur Pavilliard, a learned Calvinist minister.

Gibbon dropped a girlfriend when Dad took exception.  ‘I sighed as a lover.  I obeyed as a son.’  Both limbs of the equation were probably untrue, and we might hope that Gibbon later regretted that tart dismissal of his one and only love.  (Mademoiselle Churchod went on to other things.  She married Monsieur Necker, who became the Minister of Finance in France, and played a large part in the French Revolution, and she gave him a daughter, Mme de Staël.)

Gibbon served for a time in the militia, and remained in it for years, and we might imagine Captain Gibbon, the small man with the rather large and ridiculous head, jogging at the head of his bucolic Grenadiers.  He sought to get away from it all with nights of ‘bumperizing that left him in the morning where he could ‘do nothing … but spew’.

When looking back on his life, Gibbon had no doubt that it was formed by the nearly five years he had spent at Lausanne.  ‘Such as I am in genius or learning or in manners, I owe my creation to Lausanne ….  I had ceased to be an Englishman’.  But he had previously recorded that his taste for the French theatre had only ‘perhaps abated my idolatry for the gigantic genius of Shakespeare, which is inculcated from our infancy as the first duty of an Englishman’.

Gibbon embarked on the Grand Tour.  His lack of worldliness – he had been too young to visit the whores when he was at Oxford – may have left him even more at sea with the French ladies than David Hume had been.  He saw Voltaire perform in a play.  Then he came at last to Rome while he was still casting about for a subject for a history, for it was to writing a history that he would devote his life.  His mixed upbringing enabled him to give a more balanced view of the religious divide than others – ‘the Catholic superstition, which is always the enemy of reason, is often the parent of taste’.  The lines with which Gibbon celebrated his visit to Rome are still celebrated by his admirers.

My temper is not very susceptible of enthusiasm, and the enthusiasm which I do not feel I have ever scorned to affect.  But at the distance of twenty-five years, I can neither forget nor express the strong emotions which agitated my mind as I first approached and entered the eternal City.  After a sleepless night I trod with a lofty step the ruins of the Forum; each memorable spot where Romulus stood, or Tully spoke, or Caesar fell, was at once present in my eye;…several days of intoxication were lost or enjoyed before I could descend to a cool and minute investigation…In my Journal the place and moment of conception are recorded;  the fifteenth of October 1764, in the close of evening, as I sat musing in the Church of the Zoccalanti of Franciscan friars, while they were singing Vespers in the Temple of Jupiter on the ruins of the Capitol.  But my original plan was circumscribed to the decay of the City, rather than the Empire; and, though my reading and reflections began to point towards the object, some years elapsed and several avocations intervened before I was seriously engaged in the execution of that laborious work.

The six volume work of The Decline and Fall of the Roman Empire was indeed to be his life’s work.  Gibbon greatly admired the History of Hume.  Gibbon’s first work had been written in French, but Hume persuaded him to write his History in English.  Hume thought, being an astute Scot, that the flowering of America would lead to English having the greater coverage.  Hume, and most of the rest of Britain, were generous in their praise of the History as it came out, volume by volume.  The Church was not.

Gibbon held court and would allow little chance of reply.  But this Georgian England had a vivacious conversational character.  He once unloaded one of his best foreign anecdotes and was waiting for his tribute of applause.  ‘When a deep-toned but clear voice was heard from the bottom of the table, very calmly and civilly impugning the correctness of the narrative, and the propriety of the doctrines of which it had been made the vehicle.’  This was no less than William Pitt the Younger (the youngest Prime Minister of England at the age of 24).  Gibbon was obliged to give ground and then excused himself and left the room.  He was apprehended looking for his hat, and when asked to return he said that the gentleman who had interrupted him was ‘extremely ingenious and agreeable, but I must acknowledge that his style of conversation is not exactly what I am accustomed to, so you must positively excuse me’.  Jane Austen could have written that.

He died on 16 January 1794 of an appalling illness that had long troubled him.  He was at peace and without fear, but it is a very fair guess that no other writer of history has been so read, so admired, and so loved.  It is certainly the case that this rather absurd Englishman still talks to us and enlightens us after we have gone more than two hundred years down the road.

The great historian looked for patterns in the past.  He was not to devote his life’s work to describing outlines of spent tea leaves.  ‘History to a philosopher’ he said, ‘is what gambling was to the Marquis de Dangeau:  he saw a system, relations, consequences, where others saw only the caprice of fortune’.  Gibbon was describing the decline and fall of an empire.  He saw that decline occurred with the rise of religion; he asked why ancient civilisation failed and if it could happen again.

Perhaps it was because Georgian English gentlemen suspected that their England suffered from similar lesions on its society that they were content to allow Athens and Rome to be described as civilised.  But it is a little curious that educated Europeans should have sought to find how this mighty and civilised empire was brought low – was felled in truth – by a scrawny ragamuffin hasid whose teaching of the Sermon on the Mount underwrote all of what the English would come to call civilised about their empire.  And how could Rome have sought to hold an empire under arms if it subscribed to the view that it is the meek who inherit the earth?

It is not surprising that Gibbon followed what might be called the party line in describing Rome as civilised, but we might notice that he began his first published work, the Essai, with the following words of eternal verity: L’histoire des empires est celle de la misere des hommes. ‘The history of empires is the history of the misery of mankind.’

Sadly, space allows only a couple of quotations on the Crusades:

… the name and nature of a ‘holy war’ demands a more rigorous scrutiny;  nor can we hastily believe that the servants of the Prince of Peace would ensheath the sword of destruction unless the motive were pure, the quarrel legitimate, and the necessity inevitable. 

Gibbon attacks indulgences with savagery.  He then goes on to describe the beginning of the first Crusade.

Some counts and gentlemen, at the head of three thousand horse, attended the motions of the multitude to partake in the spoil, but their genuine leaders (may we credit such folly?) were a goose and a goat, who were carried in the front, and to whom these worthy Christians ascribed an infusion of the divine spirit.  Of these, and of other bands of enthusiasts, the first and most easy warfare was against the Jews, the murderers of the Son of God.  In the trading cities of the Moselle and the Rhine, their colonies were numerous and rich, and they enjoyed under the protection of the Emperor and the Bishops the free exercise of their religion.  At Verdun, Trèves, Metz, Spires, Worms many thousands of that unhappy people were pillaged and massacred, nor had they felt a more bloody stroke since the persecution of Hadrian ….  The more obstinate Jews exposed their fanaticism to the fanaticism of the Christians, barricadoed their houses, and precipitating themselves, their families and their wealth into the rivers of the flames, disappointed the malice, or at least the avarice, of their implacable foes.

Gibbon next savages the institution of knighthood and then goes on to describe the taking of the Holy City, Jerusalem.

A bloody sacrifice was offered by his mistaken votaries [Tancred’s] to the God of the Christians:  resistance might provoke, but neither age nor sex could mollify their implacable rage: they indulged themselves three days in a promiscuous massacre; and the infection of the dead bodies produced an epidemical disease.  After seventy thousand Moslems had been put to the sword, and the harmless Jews had been burnt in their synagogue, they could still reserve a multitude of captives whom interest or lassitude persuaded them to spare.  ….  The Holy Sepulchre was now free; and the bloody victors prepared to accomplish their vow.  Bare-headed and bare foot, with contrite hearts and in a humble posture, they ascended the hill of Calvary, amidst the loud anthems of the clergy; kissed the stone which had covered the Saviour of the world;  and bedewed with tears of joy and penitence the monument of their redemption.  This union of the fiercest and most tender passions has been variously considered by two philosophers: by the one, as easy and natural; by the other, as absurd and critical.

The first philosopher referred to is David Hume; the second was Voltaire.

Here is Gibbon on Israelite conquests.

When the posterity of Abraham had multiplied like the sands of the sea, the Deity, from whose mouth they received a system of laws and ceremonies, declared himself the proper and as it were the national God of Israel; and with the most jealous care separated his most favourite people from the rest of mankind.  The conquest of the land of Canaan with so many wonderful and so many bloody circumstances, that the victorious Jews were left in a state of irreconcilable hostility with all their neighbours.  They had been commanded to extirpate some of the most idolatrous tribes, and the execution of the Divine will had seldom been retarded by the weakness of humanity.

Here is Gibbon on the absolutism of the followers of Jesus of Nazareth.

But the primitive church, whose faith was of a much firmer consistence, delivered over, without hesitation, to eternal torture, the far greater part of the human species. A charitable hope might perhaps be indulged in favour of Socrates, or some other sages of antiquity, who had consulted the light of reason before that of the Gospel had arisen.  But it was unanimously affirmed that those who, since the birth or the death of Christ, had obstinately persisted in the worship of the daemons, neither deserved nor could expect a pardon from the irritated justice of the Deity.  These rigid sentiments, which had been unknown to the ancient world, appear to have infused a spirit of bitterness into a system of love and harmony.

Finally, this is Gibbon on celibacy.

Since desire was imputed as a crime, and marriage was tolerated as a defect, it was consistent with the same principles to consider a state of celibacy as the nearest approach to Divine perfection. It was with the utmost difficulty that ancient Rome could support the institution of six vestals [virgins] but the primitive church was filled with a great number of persons of either sex who had devoted themselves to the profession of perpetual chastity.

In the footnote, Gibbon records of the six Roman maids: ‘nor could the dread of the most horrible death always restrain their incontinence.’

How did our brothers and sisters of Asia fare? Gibbon said that for all his powers of eloquence, Mohammed was an illiterate barbarian, although he says that the ‘base and plebeian origin of Mohammed is an unskilful calumny of the Christians.’ (How did they class the origin of Jesus of Nazareth?)  Gibbon does of course praise Mohammed for dispensing with priests, sacrifices, and monks, but he rejects the doctrine of damnation by which ‘the greater part of mankind has been condemned for their opinions.’ Gibbon was, like most people, fascinated by sex.  He had this comment on Paradise.

Seventy-two Houris, or black-eyed girls, of resplendent beauty, blooming youth, virgin purity, and exquisite sensibility, will be created for the use of the meanest believer; a moment of pleasure will be prolonged to a thousand years, and his faculties will be increased a hundredfold to render him worthy of the felicity ….This image of carnal paradise has provoked the indignation, perhaps the envy, of the monks…

But this Paradise was assured to those who died for the faith since the Prophet had said ‘The sword is the key of heaven and of hell: a drop of blood shed in the cause of God, a night spent in arms, is of more avail than two months of fasting or prayer…’ .

It is very hard now to imagine history in any language being written with such pitch and such intensity.  But he may have unsheathed a sword the consequences of which he never intended.

In Gibbon’s view, Greek philosophy had infected the teaching of those following Jesus of Nazareth.  It was notorious that many of the divisions of the early church were fed on thinking that came to its members from the Platonist school.  Gibbon thought that Platonism did not mix well with Christianity.

But theology, which it was incumbent to believe, which it was impious to doubt, and which it might be dangerous, even fatal, to mistake, became the familiar topic of private mediation and popular discourse.  The cold indifference of philosophy was inflamed by the fervent spirit of devotion.

It may have been like global warming disputants trying their hand with the theory of relativity or string theory.

The familiar study of the Platonic system, a vain and argumentative disposition, a copious and flexible idiom, supplied the clergy and the people of the east with an inexhaustible flow of words and distinctions; and, in the midst of their fierce contentions, they easily forgot the doubt which is recommended by philosophy, and the submission which is enjoined by religion.

It has to be said that these observations ring many bells, and not just in the context of the Christian church.

Baroque sentences flowed out Gibbon just like baroque music flowed out of Mozart.  His canvass blazes like that of El Greco.  He had a sense of grace and rhythm that would have appealed to the instincts of Errol Garner and which had a lasting effect on one of his greatest followers.

For my own part, looking out upon the future, I do not view the process with any misgivings.  I could not stop it if I wished; no one can stop it.  Like the Mississippi, it just keeps rolling along.  Let it roll.  Let it roll on full flood, inexorable, irresistible, benignant, to broader lands and better days.

May I conclude on a whim of my own fancy?  For me, Gibbon was and is the greatest writer in prose of them all.