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.

A colleague referred me to a decided case in Chancery on the point of mixing politics and trusts in England – Cowan v Scargill [1985] I Ch 270.

 Back then, the English coal industry was desperate to save itself – as is the Australian coal industry now.  But English coal miners were led by a frightful firebrand named Arthur Scargill – who turned out to be as crooked as Norm Gallagher, and who was a one-man raison d’être for Mrs Thatcher.  

The coalminers had a pension scheme set by the National Coal Board.  The union was represented on the managing trustee.  The union wanted the investment policy of the trust to reflect the overwhelming wish of the union and members of the fund to save the coal industry.  They wanted to stay out of oil and gas.  (Sound familiar?)  Scargill was stupid and egotistical enough to appear in person in Chancery.  That did not help the judge, Sir Robert Megarry, VC.  The court was dead against the trustees acting for union motives that conflicted with their investment duties.  It ruled that they were wrong to put union policy directives above their duty to act in the best financial interests of the trust members generally.

That would not have surprised lawyers, but it looks to bear directly on the issues raised in the previous note.  Except that here the trustees are not just being pushed in one direction – that looks prima facie to place them is a position of conflict between duties and interests – they are being told by a government regulator – the kind of outfit that attracts the term ‘tame’ – that it will act like Lord Nelson if the trustees at least try to look decent.

That would not go down so well in court.

Two things.  The argument took nine days.  The judge said Mr Scargill had put the case with ‘courtesy and competence’ – but judges hate having to sort out the arguments of litigants in person.  The judge gave judgment eight days after the hearing concluded.  It covered twenty pages.  You can pick your own multiplier for what might unfold now.

And it is curious that the role of Arthur Scargill is now played by Rupert Murdoch, Barnaby Joyce, and ‘conservative’ think tanks.  Arthur was hardly their pin-up boy.  Which is sad.  They would have deserved each other.  And they would have escaped the curse of our children and grandchildren.

Companies – directors improper purposes – politics at the board level.

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.

6 Politics as a profession

In some circles nowadays, the word ‘activist’ is uttered with disdain – especially by those haunted by the ‘green left’, whatever that means.  It is hard to know why.  If you hold political views, why should you not get active to advance them?

The people of England were apt to involve themselves in politics at all levels.  They have seen many activists.  Religious groups like Puritans and Methodists could get very political.  The Puritans led the way in the New World, where for better or worse, they would have the numbers.  The Quakers, to their eternal credit, would run a masterly PR campaign to end the slave trade in England.  But the primal activists would become the lawyers, who would in time become a more powerful caste in England than any priesthood had been – even including the Druids.

The men who argued the cases that started the common law – there were of course no women – naturally became clubbable.  England would be the birthplace of gentlemen’s clubs and pubs.  The lawyers after a while quickly divided into two – barristers and judges.  (Solicitors would come later.)  You had the bar and the bench.  And the tradition that judges should only come from the bar soon hardened into custom. 

The lawyers soon became adept at protecting their monopoly.  They got in early.  Clause 45 of Magna Carta provided that the crown would only appoint as officers of the law ‘such men as know the law of the kingdom and well desire to observe it’. 

If you look at the Charter, it is full of very technical drafting that could only have come from professional people operating at the height of their powers – and it is a shame that some in government with a party-political agenda have never heard of clause 45 (which, to repeat, is still part of our law).

By the end of the thirteenth century, the crown had issued a writ to the judges dealing with legal education and giving selected lawyers a monopoly.  The ‘better, worthier, and more promising students’ wishing to become serjeants were to ‘follow the court and take part in its business.’  The students would collect ‘in the crib’, and you will find in the Year Books references to what passed in the crib.  A leading legal historian would later say that at the turn of the century, ‘there was a very brilliant bar in England.’  That is remarkable – for 700 years ago.  The English may have thought that they and the law were cut out for each other.

Universities had their colleges; Freemasons had their lodges; and the lawyers had their Inns of Court.  That is where you started and learned – on the job, going to court.  The Inn would be your second home for life.  They naturally developed their own traditions and paraphernalia.  So, that is where you were indoctrinated – and, how.  You had to attend so many dinners each term, and such teaching as there was never extended to anything like theory or philosophy.  You learned on the job.  Universities had little or no place in the training of working lawyers until many centuries had passed.

As lawyers argued and judges decided cases, texts began to appear that that would become what were called ‘works of authority.’  There were names like Glanvill, Bracton, Fortescue and Hale.  In the 18^th century, Blackstone’s Laws of England would achieve something like biblical status in the U S. 

But these books were quite unlike Roman law texts – they were the for the most part collections of precedents with some commentary.  Anyone looking for the theory of the law would have sounded very odd – as odd as someone sounding off about the elegantia juris (juristic excellence) of the laws of Justinian.

Now any tight cadre of men can easily get up people’s noses and this lot certainly did, but what did they do for the law?  The short answer is that they made it, but we need to go a little further.

First, the Inns were coming into being and their teaching was taking effect at that point in medieval history when English universities were still getting off the ground.  Until then, the priesthood had had a monopoly of higher learning.  And they had abused that monopoly viciously by burning at the stake people who wanted to read the gospel or conduct their worship in their own tongue.  And they had taken the simple teaching of a Jewish hasid and drenched it in the theories of Aristotle and Plato, so putting it beyond almost all the flock.  Only the priest had the power to loose and bind – and the rest of us just had to take them on trust. 

Now all that monopoly was busted.  Sure, the lawyers had their own tricks and quirks, but they were English foibles.  And they were foibles held by people who would be just as happy to have a fight as a feed.

History has in my view underestimated this achievement of the English.  When you link it with events called the Reformation looked at in the last section, the priesthood is being put back in its box in a way that we do not see anywhere else.  It looks to me to be a form of emancipation.

Secondly, as part of their profession, the lawyers were engaged on a daily basis in protecting the liberty of the subject and ensuring due process.  As often as not, it was their duty to argue against the crown, and if they felt intimidated, they were not up to it.  That is still very much the case today, but I am not aware of anything remotely like it in any other part of the world back then – or for some centuries to come.  It is a state of mind fundamental to our concept of the rule of law.

Thirdly, and although you can’t measure any of this, these crotchety, wizened, and smelly denizens of the courts both personally and professionally bespoke a kind of individualism that is central to the way the English – both rulers and ruled – regard government.  Except for purely ceremonial purposes, they are not keen on bending the knee.

Fourthly, they were not beyond following one of the tricks of the priesthood.  The judges were apt to say ‘Don’t tell us what the law is – we made it.’  Or, ‘Your Majesty cannot act as a judge because Your Majesty is not learned in the law.’  Indeed, when Sir Edward Coke, as tough an old nut as any of them, said just that to Charles I – point blank, and on a Sunday morning – His Majesty came close to striking him, in what Dean Roscoe Pound called one of the glories of our jurisprudence.

Fifthly, for all those reasons, Roman law would never take hold in England.

Finally, and for present purposes, most importantly, the English people were about to have it out with their king.  The Stuarts would be silly and devious enough to offer the chance, and people trained in the Inns of Court would take it and become king-breakers from Hell.  People like Elliott, Hampden and Pym – and another man called Oliver Cromwell – had standing, property, character, indoctrination – and God.  They also have towns or streets named after them in the U S. One Stuart was executed; another deported.  The whole House was gone – over the way to Skye, and a bonnie prince who would never make it.

The lawyers were in league with the parliament against the crown.  The Trevelyan clan were apt to go over the top about all this, but it is worth recalling what G M Trevelyan said:

‘Coke had not striven in vain.  He had enlisted the professional pride of the students of the common law against the rival systems especially favoured by the Crown and the Star Chamber, the Admiralty and the Ecclesiastical Court.  He had turned the minds of the young gentlemen of the Inns of Court, who watched him from afar with fear and reverence, to contemplate a new idea of the constitutional functions and of political affinities of their profession, which they were destined in their generation to develop in a hundred ways, as counsel for England had gone to the law with her King.’

Rhapsodic, really.  But let me close with one anecdote.  The dispute with Charles I, which ended on the scaffold, was about whether he had to submit to parliament to get revenue.  This was the ultimate crunch point between parliament and the crown.  The king claimed the right to get ship money.  That claim was very suspect.  Hampden refused to pay and the matter went to court.  The case occupies a large part of one volume of State Trials.  It took me more than one day to read the submissions of Oliver St John.  It is very, very high learning – the high technique of the Year Books.  In the end, enough judges went to waterto allow the crown to stagger on.  They would be dealt with for their failure by the Commons later when order was restored.  But the court was asked to rule that the king’s tax was unlawful.  In most other parts of the world now, people would just fall about the floor laughing at such a lunatic suggestion.

Then the parliament had to deal with the threat of Strafford.  Their court process failed, and they resorted to parliament.  St John was on hand again with a most elaborate argument.  Capped by a coup de grȃce right across the throat of the Earl – who then suffered the fate that would later befall the king obliged to sign his death warrants.

In truth, these were blood sports, and the English and their lawyers were up to them.  It’s a wonder cricket ever took on.

Law -history – English bar – English constitution.