An essay in nine easy tablets

Some years ago, I wrote a book called ‘The Common Law, A History’.  I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law.  That in my view is worse than sad.  This essay is not a précis of that book.  It is an introduction written for the general reader.  People at large should have an interest in the history that underlies and underwrites our way of life.  It also represents the bare minimum of what law students should be taught.  The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy.  I will publish the essay by nine consecutive posts on this website.  I hope you get some of the enjoyment in reading it that I got in writing it.

This is the final part.

9

So what?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NOTES

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

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

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

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

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

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

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

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

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

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

French Code on Contract: 1134.

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

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

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

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

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

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

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

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

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

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

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

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

I always made an awkward bow.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunt lachrymae rerum

Et mentem mortalia tangunt.

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

That water is pretty deep.

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

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

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

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

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

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

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

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

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

God bless you!

John Keats.

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

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

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

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

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

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

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

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

Here is one of mine.

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

And many goodly states and kingdoms seen;

Round many western islands have I been

Which bards in fealty to Apollo hold.

Oft of one wide expanse had I been told

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

Yet did I never breathe its pure serene

Till I heard Chapman speak out loud and bold:

Then felt I like some watcher of the skies

When a new planet swims into his ken;

Or like stout Cortez when with eagle eyes

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

Look’d at each other with a wild surmise—

Silent, upon a peak in Darien.

Poetry – Keats – Shakespeare – snobbery.

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

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

And Falstaff was cowardice made flesh.

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

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

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

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

We should all be ashamed of ourselves.

Ukraine – Russia – War – Hitler – Appeasement

Reform and decline

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

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

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

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

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

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

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

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

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

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

We have not seen his like since.

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

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

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

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

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

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

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

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

LES MISERABLES

Victor Hugo, 1862

Collins, no date; in two volumes, bound in faux leather, in white slip case; illustrated by A A Dixon.

An English critic, V S Pritchett, once remarked that the narrator of Les Misérables sometimes seems to mistake himself for God.  That may or may not have been a swipe at Victor Hugo – we will see that there was bitchiness on each side of the Channel – but there is little doubt that the ego of Hugo was as large as his sexual appetite, and the weapon he was given to satisfy it.  And this novel may have been the largest monument left by this larger than life poet and man of affairs.  It came out not long after A Tale of Two Cities, On the Eve, Great Expectations and Fathers and Children and was shortly followed by War and Peace, Our Mutual Friend, and Crime and Punishment. 

This was the heyday of the nineteenth century novel – incisive social commentary; overdrawn characters; lachrymose family and love scenes; fantastic and wilfully unbelievable coincidences; and a capacity to bang on that may derive either from serial publication, or an ego as large as that of Wagner that allows the author to test the faith and staying power of the reader.  For all that, this massive novel – the Everyman version runs to 1432 pages – holds a special place for the people of France, and there and elsewhere, people tackle this great book for the same reason that some tackle Everest – because it’s there.

The novel is about the wretched or dispossessed – the miserable ones.  In it, the author says:

The book which the reader has before him at this moment is, from one end to the other, in its entirety and details … a progress from evil to good, from injustice to justice, from falsehood to truth, from night to day, from appetite to conscience, from corruption to life; from bestiality to duty, from hell to heaven, from nothingness to God. The starting point: matter, destination: the soul. The hydra at the beginning, the angel at the end.

Those objectives are not in the minor key.  The central character is Jean Valjean, a man driven to crime by poverty who is redeemed by the Christian charity of a prelate.  He achieves success in another life, but his past keeps coming back – in the form of the pitiless Inspector Javert – one of the truly great characters in literature.  Their story meshes with those of Fantine, who is abandoned pregnant by one of the better people, and her daughter Cosette and her man Marius. 

This is how the action of the novel ends after the dying hero has told Cosette and Marius that he dies happy and asks them to allow him to put his hands upon their dearly beloved heads.

Cosette and Marius fell on their knees, overwhelmed, choked with tears, each grasping one of Jean Valjean’s hands.  Those august hands moved no more.

He had fallen backwards, the light from the candlesticks fell upon him; his white face looked up towards heaven, he let Cosette and Marius cover his hands with kisses; he was dead.

The night was starless and very dark.  Without doubt, in the gloom some mighty angel was standing, with outstretched arms awaiting the soul.

Here then is a writer for whom neither writing nor composition holds any fears whatsoever. 

We can shorten this note because in the Everyman edition, Peter Washington has offered an invaluable insight.

In European literature up to the late eighteenth century, coincidence is a synonym for the workings of Divine Grace in the world.  By Hugo’s time, few writers subscribed to this view….For most nineteenth century novelists and librettists, coincidence is simply a lazy way of jazzing up the plot or moving things forward, but in Hugo it seems to take on a genuine dramatic and philosophic value.  Like Dickens at his best, he uses coincidence to articulate a sense of order and inevitability amid the terrifying flux of modern life.  Even as we recognise how unlikely it is that Valjean would encounter Javert, or that Marius and the Thénardiers [the couple who exploited Cosette, two of the most revolting people in our letters] would settle in the same house, we accept the dramatic truth of events which are superficially unrealistic.  This is the essence of great opera, the deployment of preposterous artifice to express unavoidable reality.

That is put so well.  We do not go to great art for a snapshot of the physical world.  We are sick of it.  We go to get some insight into life, and some relief from the ordinariness and pain of so much of it.  And some of us at least get the greatest of such insight or relief from high theatre – in tragedy, opera, or however.  To be put off by some departure from surface reality in a novel or opera is like rejecting the Pieta of Michelangelo because the Madonna is obviously too young to be the mother of the executed Christ, or to reject El Greco’s painting of Christ’s Cleansing of the Temple because his legs are too long, the background is medieval Italy, and young tearaways do not look so rhythmically serene when they are signing their own death warrant.  Or, if you prefer, the coyote perpetually eluded by the Road Runner has unbelievable recuperative powers.

Not surprisingly, the flamboyance of Carlyle had evoked similar reactions as Les Misérables.  Carlyle interacted with his friend Charles Dickens over the French Revolution.  Tale of Two Cities was built on Carlyle.  Before Carlyle started it, he told John Stuart Mill that he saw ‘a great result in these so intensely interesting Narratives’.  For him history is ‘the only possible Poem, that hovers for me in every seen reality.’  We now see the place of the seer or the prophet in poetry.  When the work was completed, Mill returned the serve:

This is not so much a history as an epic poem; and notwithstanding this, or even inconsequence of this, the truest of histories.

The historiographer who passed on those comments said of Carlyle’s history:

 The ring of truth that brought it success was partly due to the choice of the narrative form.  A story will be listened to.  Carlyle knew only the dramatic narrative form for history writing….In the English historiography of the Revolution, nothing was more wanted.  Tired of being told what to think about the Revolution, people were glad to glimpse a painting of it.

These truths are not sufficiently understood.  We are imprisoned by demarcation issues.  All kinds of artists and historians have at least something in common.  They are reflecting on their felt experience and seeking to pass it on to others as best they can.  Who wrote a better account of the French Revolution than Charles Dickens?  Who wrote a more riveting narrative than Thomas Carlyle?  Who wrote a more effective polemic than Keynes?  Who wrote a more moving protest against war than Goya?

Les Misérables has something in common with War and Peace and Moby Dick.  For many, if not most, it is marred by the extravagant and unnecessary diversions.  They are like little boys showing off on a bike: ‘Look Mum – no hands!’  Tolstoy was fixated on Napoleon.  So, in a very different way, was Hugo.

Waterloo is a battle of the first rank won by a captain of the second.

‘Un moment, Monsieur.’  Wellington beat your boy – if he was yours.  Wellington was never allowed to turn his artillery on his own citizens.  He was never allowed to be so reckless with the lives of his own soldiers.  He was not responsible for leaving five million dead on the battlefields of Europe.  He did not leave his nation a smoking rubble.  And most of all, he did not desert his army not once but twice.  It may be better, Monsieur, if you stick with fiction.

There are worse parts in this novel.

But this great England will be offended at what we say here.  She has still after 1688 and our 1789 the feudal illusion.  She believed in hereditary right, and in the hierarchy…..France exists to arouse the souls of the peoples, not to stifle it.  Since 1792, all the revolutions of Europe have been but the French Revolution: liberty radiates on every side from France.  That is a fact as clear as noonday.  Blind is he who does not see it!  Bonaparte has said it.

This is obnoxious claptrap.  The English constitutional development was smoother and happier because, among other things, they had started dismantling feudalism five hundred years before the French.  As a result, they were not exposed to the horrors of the Revolution or those revolutions that followed it – one of which is dealt with in the novel.  People were slaughtered in France in 1830, 1848 and 1870.  The Terror is glossed over.

‘1793. I was expecting that.  A cloud had been forming for fifteen hundred years; at the end of fifteen centuries it burst.  You condemn the thunderbolt’.

And if nothing else, Les Misérables is a sustained denunciation of the lie or mirage that after 1789 all men in France were equal – except in the most vague juristic sense.

Well, a great work of art does not warrant the greatness of its creator.  This novel is a great work of art.  If someone said they could give you a prime viewing of Mount Everest for $20 – provided you were prepared to a long walk with some annoying detours, you would grab it with both hands.  So you should with Les Misérables.

Passing Bull 307 Somersaults at The Australian

It takes a lot to get The Australian to criticise the Prime Minister. 

On the weekend of 5 and 6 March, the paper had comments on a speech by the P M about Russia and China by Paul Kelly and Greg Sheridan. 

The former said:

The speech was a resolute and balanced effort to elevate national security in the election context.  Its focus was strategy, not politics.  It was realistic and steadfast.

This is the fallacy of treating two qualities as mutually exclusive when they are not.  Why could not a discussion of strategy involve politics?  How could it not in a democracy?  Especially ‘in the election context.’  Can this politician discuss anything without politics? 

Mr Kelly answers these questions at the end of his note.

He said the government was the ‘proven choice’ when it came to national security.

Labor, by constantly falling behind the government, seems to offer credence for this view.

Mr Sheridan had a different view.

Scott Morrison’s speech on announcing a committee to look at a location for a possible east coast submarine base came in what is one of the most profoundly disappointing prime ministerial speeches in modern times…. his words on our national defence are simply unreal.

Well, at least Mr Kelly pursued his policy of saying nothing at all, while Mr Sheridan pursued his policy of going clean over the top, but it all looks a bit odd coming from the front office of the Liberal Party.

Passing bull 308 – Random Bull

On almost any day, you can pick up a paper and be met with bullshit.  Take the AFR today.

The CEO of a big accounting firm – Deloitte – saw the need to see ‘integrity’ as a ‘core value’ and that the firm would show ‘zero tolerance’ to any breach of that core value.  Those phrases are pure bullshit.  What was the occasion?  One of the firm’s directors had stolen $3 million from it.  Why do you need to refer to a ‘core value’ when someone steals from you?

The CEO of a bank, BoQ, got a public serve from his chairman.  One of the issues was ‘the perceived extravagance of expenses.’  Sounds like Deloitte.  The CEO said the board backed him.  ‘The board and I are totally aligned with what’s really important and that’s what we’re focussed on.’  Sounds like the bullshit in Canberra.  ‘What you should look at is the facts.  …when you look at the numbers, where the facts are, it points to a culture that’s improving.’

Then there is John Roskam.  He refers to ‘the perceived misogyny’ and ‘the supposed need’ for a federal integrity commission.  Those problems don’t exist for him.  One never has.  As a matter of faith.

Australian – AFR – IPA – Sheridan- Kelly – Deloitte – BoQ

About fifty years ago, the ALP was in government federally and in real trouble.  Jim Cairns as Treasurer was vulnerable to the press at the best of times.  He was even more vulnerable for having an affair with a person of influence – Junie Morosi.  It was open season to a voracious press most of whom were against the ALP.  Was this reportage in ‘the public interest’?  Or was the press being salacious as a tool for revenge – or for money?  Or some of all three?

The status of the public interest was aired in court back then.  Its standing in law is still unsettled – and not just in the law.  It is a very broad term.  At one end it might sound dangerously like the national interest of Hitler or Stalin – or the raison d’état of Louis XIV.  At the other end it may sound dangerously like pandering to the voyeur or those who like the boobs on page three.

There is a first-class discussion of this by Martin McKenzie-Murray in The Saturday Paper. 

Luke Beveridge is a respected AFL coach who looks after his players.  He recently dropped his guard at a press conference and he later apologised.  The journalist then got fired for offensive behaviour to a colleague.  The press were all on his side before that came to light.  It is well known that some players have trouble with mental health.  We have also seen a sea change in coaching – from the dictatorial to the paternalist.  Beveridge has been in the forefront of this change.  He was acting to protect the players, but the press thought he was wrong and some thought he had problems of his own.

Where was the public interest?  The press corps looks to be about four times what it could be.  That will produce hunger and slippage.  Morris looked to me to smirk at his own view of himself. 

Mr McKenzie-Murray does not hold back.

Morris was a shallow and self-regarding scavenger of bins – more an ibis with private schoolboy connections than Bob Woodward.  He was – like many footy reporters – a simple gossip-monger, more enthralled by their status than the game ….

I often smell the same desperate appeals to exceptionalism from journalists.  And maybe some believe it – that because they’re a journalist, they can do and write whatever and believe that it’s all valuable by definition.  The self-regard of a Tom Morris is both too great and too fragile to broker self-reflection – why act or think in such a way that might puncture your sense of exceptionalism?

I congratulate the paper and the journalist.

Neil McPhee QC knew more about all this than most.  About forty years ago, I asked Neil why libel verdicts were going through the roof.  ‘Geoff, it’s hard to tell the jury that you are there for freedom of speech when you are being paid – handsomely – by Kerry Packer, Rupert Murdoch, Christopher Skase or Alan Bond.’  Or Kerry Stokes. 

Hands up all those who think that any of those guys was not in it for the dollar, but for a disinterested commitment to the public interest.  And then ask the same question of those in this shockingly over-serviced press corps – who need to do something just to stay in the shark pool and get paid and put food on the table. 

Then ask the ordinary punter.  Do you support freedom of speech?  Why not?  How do you feel about Rupert or Auntie being able to roll over you and crush you at will?

But the press won again and persuaded state governments – most if not all ALP – to give them even more protection.  And yet they still grizzle.  Well, I have acted on either side for fifty years, and I have a settled view about where the balance of power and decency lies – and which is the only side I might lose sleep for.  And it’s not Rupert or Auntie.

AFL – press – freedom of speech – greed – public interest.

An essay in nine easy tablets

Some years ago, I wrote a book called ‘The Common Law, A History’.  I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law.  That in my view is worse than sad.  This essay is not a précis of that book.  It is an introduction written for the general reader.  People at large should have an interest in the history that underlies and underwrites our way of life.  It also represents the bare minimum of what law students should be taught.  The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy.  I will publish the essay by nine consecutive posts on this website.  I hope you get some of the enjoyment in reading it that I got in writing it.

7

The constitution is fixed

The barons had left the doctrine of Divine Right as a fiction at Runnymede, and Henry VIII had brought the church inside the government.  But the first of the Stuarts, James I, taught his son the old fable that the king reigned supreme – subject only to God.  That was a mistake, but it led to a series of events that established the basis of the English constitution – the supremacy of parliament, or, as the French might prefer, the people.  England saw a regicide, civil war, a deposition (which of course the English denied), and Dutch troops patrolling the streets of London – after an invasion that was nearly bloodless because the English had asked for it.  So, if you have to spill blood to found a nation, the English had done so.

It was as if Charles I had a kind of death wish.  You can see it in the genius of Alec Guinness in the film Cromwell.  His mortal stubbornness led him to error after error.  He may never have recovered from the time he went in person to parliament to arrest his principal opponents – while his bravoes cocked their pistols and uttered dark threats outside.  In the name of God, man, you just don’t do things like that.  It was like a regal preview of the recent assault on the Capitol in Washington. 

But Charles was killed because having started a war and lost it, he could not be trusted – and he was too powerful to be left alive. In that, he resembles his favourite, the Earl of Strafford – although in and of himself, Strafford was a far more imposing man.  His defence showed just how potent he was.  England had ducked a bullet.

So, there was a kind of dictatorship under Cromwell, but the people got restive when the Puritans started shutting down pubs.  The English were not ready for a republic, and they coolly called the Stuarts back in the form of Charles II.  And after the regicides had been dealt with, things went quickly back to where they had been.  The agonies of twenty years were just parked in another room.

Charles II was amiable enough.  He could spend his time siring bastards, a past-time recently revived by a ruler of England (although the Stuarts were hardly into BYO booze parties), but even he could not be trusted.  He did a deal with the French called the Treaty of Dover.  But there was a secret side deal.  In return for French money, the king would convert to Rome.  This was within one lifetime of the defeat of the Armada and Guy Fawkes.  Can you think of a ranker act by any ruler anywhere?  The Catholic – Protestant divide is dead as a dodo now, but back then it festered as a cancer that threatened human life.

James II came to the throne on notice that his Catholicism was a real problem.  The Commons had sought to bar him more than once.  He had a text book case of conflict of interests.  He was bound to protect the English church of which he was the head.  But the church of which he was a member taught that only those of that faith had the warranty of eternal life (and the keeper of the keys resided in Rome). 

Well, James set about resolving that issue in a way that was almost manic.  He pressed every button he could to arouse a Tory squire, an Anglican bishop, an Oxford graduate, or a gentleman of the City.  The better people got together and asked William of Orange to come over with a Dutch army.  James gave up – he threw his Seal into the Thames, and fled to France.

William then had to negotiate the terms of his engagement with his new subjects and his wife (a daughter of the sometime king).  He got more and more frustrated.  He had been sold a pup.  The English were dreadfully hard to deal with.  In commenting on the House that succeeded the Stuarts, Sir Jack Plumb said that the Hanoverians came to England with real trepidation.  Their future subjects were widely reputed in Europe to be ‘shifty,’ and most of the aristocracy had ‘dabbled in treason.’  Plumb was spot on.

A young barrister named Somers, who was obviously super bright, was briefed to draw up the terms of settlement.  It is a thing of beauty that would be called the Bill of Rights.  Then the home team put on a most elaborate form of ceremony that resembled a very high-end wedding.  ‘Your Majesties promise to do this, and we the people promise to do that….’ 

This took place under the Reubens painting in the Banqueting Hall.  That was a nice touch.  That was the room through which Charles I had walked through on his way to the block.  Someone would remark that James II took off after touching that crick in the neck at the top of his spine.  Perhaps someone showed him the shed where they kept the axe.

The Bill of Rights is now the foundation of the constitution.  Article 4 restates the law in the Petition of Right that only the parliament can raise revenue.  The executive cannot levy taxes.  That part of the English constitution has not been seriously threatened or questioned since.  It is the constitutional predicate of the supremacy of parliament, since they who control the money control the power. 

There are, of course, provisions dealing with the dispensing and suspending powers, the treatment of the bishops, irregular courts, and fixing juries.  Excessive bail and cruel and unusual punishments were outlawed.  There would be no more mutilation or putting people in the stocks, or other ‘feudal’ reprisals, or any unlimited imprisonment.  You see all these in the U S Amendments to their constitution.

More importantly, the privileges of parliament were locked in: ‘The freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament’.  The king’s writs do not run to what is said in parliament.  Nor do any arrest powers of the king.  This is fundamental and indispensable to a parliamentary democracy.  And it would be unthinkable in any dictatorship.

What did the English do about enforcing this arrangement?  The people had the right to bear arms – at least those who were Protestant.  The king needed express permission from parliament to have a standing army – something left anathema by Strafford and Cromwell.  ‘We can be armed but you can’t.  Guess who wins if we fall out.’ 

We have been focussing on central government.  Most people never got any closer than the local justice of the peace.  In truth, the gentry and the militia governed England back then.  The government at the top gathered in 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.’   We might blush at the notion ‘right of rebellion’, which has a Gallic air to it, but it was a fact of life established over 600 years that if the crown behaved badly enough, the reaction might be terminal, if not lethal.  (Plumb may have had in mind the concept of the common law that the aggrieved party to a contract has the right to accept the conduct of a guilty party as the repudiation of a contract, so bringing it to an end.) 

And that we were told was so under the old feudal compact – if the lord broke his word, the vassal was discharged from his obligation of loyalty.  Well, that at least is what the law said.

Plumb had also said that: ‘…the power of the 17^th century gentry was sanctioned by violence’ and that ‘by 1688, violence in politics was an Englishman’s birth-right’.  And that, too, was from the ‘mouth of England’.

By and large, the English are polite, at least at the top.  But when it comes to who runs the place, they can turn very cold.  Lord Denning was a brilliant lawyer, a decisive judge, and a peaceable Anglican.  But when it came to freedom under the English crown, we see bare steel. ‘Concede, if you wish, that, as an ideology, communism has much to be said for it: nevertheless, the danger in a totalitarian system is that those in control of the State will, sooner or later, come to identify their own interests, or the interests of their own party, with those of the State: and when that happens the freedom of the individual has to give way to the interests of the persons in power.  We have had all that out time and again in our long history: and we know the answer.  It is that the executive government must never be allowed more power than is absolutely necessary.  They must always be made subject to the law; and there must be judges in the land who are ‘no respecters of persons and stand between the subject and any encroachment on his liberty by the executive.’  We taught the kings that from Runnymede to the scaffold at Whitehall: and we have not had any serious trouble about it since.’

And so, with their constitution in place, the English could settle in for a century of somnolent corruption, while losing one empire and starting another – including a most unpromising slammer in Botany Bay.  All by accident – of course.

History – law and constitution – Stuarts – rule of law.

Extracts from Volume II of My Top Shelf

LECTURES ON FOREIGN HISTORY 1494 – 1789

(J M Thompson, Blackwell, 2^nd Ed, 1944)

The author wrote extensively on the French Revolution.  I have read and enjoyed everything he wrote on that period.  A tutor at Cambridge understood my respect.  He said that the author wrote at a time when style mattered.

According to sources on the Web, James Matthew Thompson lived between 1878 and 1956.  His father was an Anglican priest.  He studied theology and philosophy at Oxford and was ordained in 1903.  In 1906 he became Dean of Divinity at Magdalen College, Oxford.  He challenged orthodoxy, and resigned as Dean in 1915.  After the war, he returned to teach history.  The lectures in the present book were delivered to first year students during the winter terms of 1921 to 1924.  The book of those lectures was first published in 1925.  It may lack the complete style of the later work on French history, but it is wonderfully assembled and crisp, and it fills in many holes in the historical knowledge of those who go straight from the Renaissance and Reformation to the French Revolution.

In the Preface, Thompson says that ‘the essence of history is not the learning of facts, but the judging of evidence.’  In the first chapter, he puts that another way.

You don’t study history to learn historical facts, but to acquire historical judgment.  It is not learning that makes a historian, but discernment.

Two pages later, we get: ‘Politically speaking, England in 1494 is already 400 years ahead of the rest of Europe’.  That proposition is not just English hubris.

Since the eleventh century it has been virtually one country under one king – a condition that France and Spain are only just reaching, and which Italy and Germany will not reach for another 400 years.  It has the only effective parliament in Europe, and the only limited monarchy which remains limited during the seventeenth and eighteenth centuries.  Its kings have suppressed the arbitrary power of the nobles without transferring it to the crown.  By losing their continental possessions, they have learnt the uselessness of foreign conquest.  England in 1494 is peaceful and orderly, and the richest country in northern Europe.

And that’s without mentioning Magna Carta, the common law, habeas corpus, the Inns of Court and the judiciary, or the fact that England would shortly repatriate its church – which would further distinguish itself from Europe, even the Protestant parts.

The cannons of the King of France were inscribed Ratio ultima Regum – ‘the final argument of kings.’

Anyone could learn to fire a gun, and one gunman was almost as good as another.  Armies grew bigger.  Disciplined masses took the place of erratic heroes.  The business of raising and arming troops passed from the feudal lord to the professional soldier, and from the professional soldier to the State.  Thus Europe entered on an era of national wars waged by national armies.  But it was not long before unpopular governments trembled before armed mobs.

‘Tremble’ was a verb much loved by the armed mobs of the French Revolution.

Here is Thompson on the ancien régime in France.

It was a case-made constitution.  And in France, in the absence of any effective Charter, or Parliament, or public opinion, it was the kings themselves who decided each case as it arose, and in the interests of absolutism…..The great ‘seigneurs’ are becoming an idle aristocracy…Their duties disappear, and their life becomes a daily round of privilege.  The army and the church are the only occupations still open to a gentleman.  Meanwhile, the rising middle class, unhampered by social traditions or family pride was used by the Crown as a weapon against the nobles, and a stepping-stone to absolute power.  Below the nobles, below the clergy, below the middle class, came the peasantry, the great bulk of the population, whose duty it was to do the work left undone by the privileged classes, and to pay the taxes from which they were exempt.  These poor people were already in a state of degradation which made the brilliancy of the Court a farce, and national prosperity an idle dream.

There you can see that it was not if France would explode, but when – because there you have a concise statement of the key strands leading to the detonation in 1789.

An Anglican divine may have something to say about the Reformation.

It is always a difficult question, how far it is proper to receive wages for religious work, or to exact payment in return for spiritual privileges.  But all conscientious men feel (and they felt the same in the sixteenth century) that it is wrong to make a profit out of religion.

What would the Mormons now say?

It was not merely the demand for books, or the interest in theology, which secured Luther his circulation; but also his style.  Michelet compared it to a mixture of Moses and Rabelais.  As those two authors never collaborated, I cannot tell whether it is a good comparison.  But that Luther’s style is vigorous, eloquent, wordy, and rather vulgar, you can judge for yourselves, even from an English translation.  It was a new way of treating theology, in the sixteenth century; and it made an immense appeal……Politically, Luther was a conservative, and stood for the rights of the German princes against their own subjects, as well as against the Pope.  The discontented knights of 1523, the rebellious peasantry of 1524, got no sympathy from him.  Unlike Calvinism, which became a disintegrating force in politics, Lutheranism played into the hands of government, and became a State religion…..Like John Wesley, Luther was never really a member of the sect called by his name…..The upshot of Luther’s teaching was to dethrone the Pope and enthrone the Bible.  Authority was not destroyed; it was only transferred.  Orthodoxy was not impaired; it was refounded on the Scriptures.

You might then wonder on the benefits of a marriage between Germany and Luther.

The lecture on the Netherlands Revolt from Spain is riveting.

Politically, the Revolt leaves all Europe in debt.  The success of the northern states gave ‘the right of citizenship to revolutionary principles.’  For the first time since the organisation of the New Monarchies, a whole people had claimed and won its independence…..the Netherlands Revolt was a striking instance of the political results of the Reformation.  It showed that Protestantism could give not only the desire for political freedom, but also the resolution to achieve it…..Only Holland in the Old World set the pattern of Protestant democracy which was to be copied on so big a scale in the New.  Had there been no United Provinces in the Netherlands, there might have been (but I almost hesitate to suggest it) no United States of America.

As to the Sun King, Louis XIV, French historians believe that in a single generation, six millions of people died of want.  The author quotes Acton:

It would be easy to find tyrants more violent, more malignant, more odious than Louis XIV; but there was not one who ever used his power to inflict greater suffering or greater wrong.

Louis XV?  ‘….he was one of the most evil men who ever occupied a throne.’

What is the upshot?

When we look at Europe in this way, and notice how in one country after another, national character and policy persist from the end of the fifteenth to the end of the eighteenth century, we cannot fail to be impressed by the strength of nationalism, and its claim to be the ruling principle of political science.  This is the first lesson of modern European history; and none is more necessary nowadays; for it explains the disaster of 1914 – the nemesis of nationalism; and it leaves no illusions as to the barrier of habit and tradition that must be broken down before any international system, such as the League of Nations, can take the place of the Balance of Power.

Those remarks were indeed prophetic in 1924.  The worst of nationalism was yet to come.  It is crude nationalism that now undermines the United States and is undoing the European experiment.  This book is a must for those who want to try to understand where we have come from and where we may be going.  And it’s worth getting for the Michelet quote on its own.

Someone remarked once that academic disputes are so toxic because the stakes are so small.  They may have added that they often arise because people have too much time on their hands.  There is a dispute in the University of Queensland.  It is tailor made for those readers of the press that feast on the reaction of Rupert Murdoch to this kind of thing. 

A student complained about a critique of his work.  Somehow, he managed to bring in the teaching of Nietzsche in Israel.  Well, there go two red lights.  The primary recipient, who is Jewish, took offence.  People lawyered up, as the saying goes, and a federal agency that the Murdoch people love to hate got involved.  There is even talk of a possible application to the Federal Court. 

The agitated academic says that the student’s complaint was ‘anti-Semitic’.  There is another red light – that charge is one of infinite width, depth or breadth, and it is very often abused.  Its generality often bespeaks desperation – like an allegation of ‘conspiracy’ – in civil or criminal proceedings. 

The university was not moved.  The academic says that its response was ‘inappropriate.’  There is another red light.  That is the weasel term that sent the Rush libel action clean off the rails.  But the parties now await some form of government intervention.  All, it seems, on my pay-roll.

Three things occur to me.

First, it is hard, to put it softly, to imagine this kind of eruption at a body that is well managed and where people have to work for a living – like BHP or Westfarmers – or the law firm acting for the academic.  If the agitator remained agitated, he might be politely asked if he might be happier grazing in another paddock.  As it is, this public brawling will do nothing to enhance the employability of the aggrieved – nothing – whatever the result.

Secondly, with the best will in the world, I cannot see anti-Semitism in anything in the report I have seen.  That may be because I am so sceptical about that kind of charge for the reasons that I have given.

Thirdly, the report I have quotes the lawyer for the aggrieved as follows:

Considering the atrocities and the sheer horror of what Jewish people have had to suffer in the past 100 years, it is astonishing to think that a university would think it is fine to make a Jewish person deal with an anti-Semitic complaint.

I suspect that this opinion is common, but you rarely see it articulated – with or without the time limitation.  The opinion is that because of the history of an ethnic group, it, and every member of it, should be treated differently.

And that is the original sin that gave rise to the whole bloody problem.

Labels – anti-Semitism – Israel.