Eight hundred years on

Outlawry was a form of process, or unprocess, developed by Anglo-Saxons in the Dark Age when the notion of a judiciary was not known and when the only choice above this world was between God and Satan.  In the year of Our Lord 2015, the closest Australian advisers of Her Majesty Queen Elizabeth II – still the Supreme Governor of the Church of England but not the Empress of India – are conducting an audible debate about reintroducing a form of outlawry by depriving people of their rights as citizens of the Commonwealth without any judgment of their peers.  If they persuade the parliament and Her Majesty to make a law to that effect, they will risk going back more than 800 years and breaking a promise made by the English Crown that it would not go or send against any free man except by the lawful judgment of his peers or by the law of the land.

It took the English about seven centuries to build the rule of law and the Westminster system, with a little help from the Americans at the end.  It will take only a fraction of that time to lose both.  We have already given up two essential parts: that the executive should be run by an apolitical civil service with secure tenure, and that ministers should be responsible to the parliament for the failings of that civil service.  There has been an obvious and sustained decline in the quality of people attracted to the parliament or the executive.  That decline has not yet substantially damaged the judiciary, but there is little ground to hope that the decline will be reversed, or that the judiciary will remain untainted.

In a real sense, a lot of our legal process goes back to Magna Carta, given, it is thought, on 15 June 2015.  English philosophers have ignored it.  English legal historians and too many judges have just got it wrong, including some who should have known better.  Curiously, it is better known and better understood in places like the U S and Australia that are used to working under a written compact that separates powers and that has the force of binding and supreme law.

Magna Carta is one of the title deeds of Western civilisation, and the most significant tablet of the law in our history.  It is worth celebrating its 800th birthday.

I

Was it hot that day at Runnymede on 15 June 1215?  The barons, they say, turned up armed.  As well they may have – they were, as we say, up in arms.  They were revolting against their king.  And how they must have stunk – the king took a bath every three weeks; it is hard to see his barons being more regular.  They were a caste in transition from being rude Norman chieftains to blunt English magnates.  The courtliness that we see in courtesy was yet to be embraced by what passed for the aristocracy back then.

Feudal society involved what we would now call vertically integrated protection.  The barons (lords or peers of the realm) gave homage to their king, who gave them protection in return.  He had his courts; they had theirs.  They passed on their protection down the line to those beneath them in return for pledges of loyalty.  It was like the Mafia.  A man without a lord was in a bad place.

Doing the best that we can looking back from here, it does look like lords and vassals entered into kinds of compact or association when they gave and took promises and pledges between themselves.  We would say that there were mutual promises.  Since English kings claimed rights in Ireland and France, there was a range of peoples who might claim some right of choice about who they would give their allegiance to and accept as their lord.  We see this clearly in Shakespeare’s history plays. 

Politics then was very man to man.  There was a twelfth century aphorism ‘be in court when your friends are present and your enemies are absent.’  In his magisterial work Feudal Society, the French historian Marc Bloch had no doubt that ‘vassal homage was a genuine contract and a bilateral one.  If the lord failed to fulfil his obligations, he lost his rights’.  Among the justification for deposing a bad ‘prince’ (a king) was ‘the universally recognised right of the vassal to abandon a bad lord.’

At the heart of our notion of the rule of law – what distinguishes us from, say, Russia – is the notion that our ruler can only rule with the consent of the those who are ruled (the people) and that since everyone is equal in the eye of the law, the ruler too cannot be above the law but must be subject to it.  At least the germ of each notion is in the charter called Magna Carta, or the Great Charter of 1215, and that is why it is venerated in the U K and if anything more so in the U S and in this country.

II

There were in substance three main parties involved in making the Great Charter of 1215: King John, his barons, and Pope Innocent III.

Shakespeare saw King John as a weak and unloved king, and his press has not got any better since then.  A monastic chronicler in the 1240’s said: ‘Hell itself is defiled by the presence of King John.’  He was the last son of Henry II and Eleanor of Aquitaine, and the brother of and successor to Richard the Lionheart.  Henry II had a very long and successful reign.  He was a remarkable reforming king who may be called the English Justinian.  He was in some ways the father of the common law, but he is popularly remembered for something else that is germane to our subject.

King Henry II appointed a worldly man named Thomas Becket as Chancellor and then as Archbishop of Canterbury.  Becket had fought alongside the king and acted as ambassador to Paris.  Becket was neither a monk nor a priest, just a politician.  Henry may have completely misread him.  Dr A L Poole described Becket as ‘a vain, obstinate, and ambitious man who sought always to keep himself in the public eye; he was above all a man of extremes, a man who knew no half measures.’  That kind of person is not cut out for politics, especially if he is not too bright.

There was conflict over the unwillingness of the Church to allow the State to try clergy.  Henry laid down the law for Royal Justice in the Constitutions of Clarendon.  The Archbishop refused to roll over or toe the line – but Henry had appointed him to do just that.  Thomas was condemned by Henry’s court at Northampton on rough charges of contempt.  He turned and said: ‘Bastard lout!  If I were not a priest, my right hand would give you the lie.  As for you, one of your family has been hanged already.’

The haughty Archbishop went into exile for six years.  A political deal was put together, but when Thomas came back, he excommunicated bishops who had crowned a prince in his absence.  This was like declaring war on his king.  Knights who were zealous of the interests of the king were sent to remonstrate with Thomas.  They murdered him instead.  Politics then were more terminal as well as more personal.  It was as if Becket had wanted to die, and become a martyr.  The king did penance, but he maintained the royal line, and the English crown did not forget – Henry VIII, not necessarily in his role as Defensor Fidei (Defender of the Faith), made it illegal to call Becket a saint.

The immediate aftermath of the murder is instructive of the credulousness of the times and of the willingness of the Papacy to intervene in other nations’ business.  This vain, second-rate politician, who was not even of the cloth, was made a saint in near record time by popular demand.  In a short time an order of knights of St Thomas of Acre was instituted in the Holy Land.  Churches were dedicated to him, as were any number of miracles – and these were English miracles, God bless them!

Rome was ruthless on the English king and quite casually impeached the sovereignty of the realm.  Their king was forced to allow appeals to Rome, and he was required to provide for the support for 200 knights for a year for the ‘defence’ of Jerusalem.  He was required to take the cross for three years himself unless he was excused by the Holy Father.  This of course he was – he bought off his conscription to fight the Saracens by founding three monasteries.  These were really morbid and venal times and the Church was in up to its neck.

Well, the Church had had a kind of moral and political win, but the days of some kind of protectorate or apartheid for officers of the Church from the laws that applied to everyone else, including the king, had to be limited, and the reaction might be very nasty indeed.  It is not an issue that any church would want to run with today – arguing that priests who have been guilty of crimes against their flock should be protected by their church from the law of the land – and when in 1533, the English Parliament would in its break from Rome exultantly proclaim that ‘this realm is an empire’, it would do so in an act to restrain appeals to Rome.  The jackpot of course would come with the confiscation of the monasteries, including, one supposes, the three that Henry II donated to beat the papal draft.

King John was never in the same league as his father as a ruler.  He loved plotting, but he was not much good for anything else – except perhaps cultivating mistresses, at least a dozen, and breeding bastards.  He is thought to have procured the murder of a nephew who had claims to the throne.  His manifest untrustworthiness helped to shape our story, as did his choosing the wrong side in the fight of his life.

The barons might resemble either Mafia Dons or Jihadists, depending on your taste – whether you see the exercise as one involving terrorism is after all little more than a matter of taste.  One of their leaders, Robert fitz Walter styled himself ‘Marshall of the Army of God and Holy Church’.  The law itself was violent and relied on violence for its execution; officers of the king were liable in their bodies for the conduct of their offices. One of the 25 barons appointed under the Charter, Robert de Ros, was a marauding land rustler whose men attacked agents of the Sheriff of Yorkshire with bows and arrows.  Whatever else might be said about these barons, they were not stupid politically, and they had within them the seed of those king-breakers from hell who would humiliate the Stuarts more than four hundred years later, and lay the platform of what we know as the Westminster system.

Innocent III came from a family of the Italian nobility that produced nine popes.  As pope, he became the most powerful man in Europe.  He put down heresy or other defiance, if necessary by slaughter.  He interdicted and excommunicated kings.  He had the power of everlasting life and death over all Christendom and he did not tire of using it.  He was offended by the Saracen recapture of Jerusalem.  He launched the Fourth Crusade and his taking of Constantinople had lasting effects on world history.  He was probably harder on heretics than Muslems.  What is known as the Albigensian Crusade led to the slaughter of about 20,000 sectarian opponents.  Innocent III was not a ruler to be trifled with.  He was much tougher and stronger than King John.  It would take the English nobility much longer to get the upper hand over the Vatican.

III

Tax and overseas military service are likely sources of conflict between the crown and the people.  Frequently the two combine when the crown has to increase its taxes in order to fund a war.  John got into trouble with his barons on both counts.  King Charles I would lead his country into civil war in 1641 over his attempts to fund his armed forces.  King George III would lose the American colonies when the English parliament tried to recover the costs of a French war and colonial defence from the American colonies.  King Louis XVI of France would lose his crown and then his head after failing to get the will of the people to lift the insolvency he had led France into in backing the Americans against his old foe.  The question of foreign wars was all that more personal in the Middle Ages because a paramount duty of a feudal knight was to render military service to help his king in his wars.

The slide of King John into what we now know would become a civil war and his death may now be seen to have started with his loss of his French lands in Normandy.  He in substance deserted a campaign that he had been conducting there.  One contemporary source said that he skulked his way back to Canterbury.  He complained of the treachery of his Norman barons, and set about planning his return.

First he had to secure England.  Everyone in England over the age of twelve was required to swear an oath of fealty, and then an oath to observe a statute of common defence.  Then he invented a new tax.  (Prime Minister William Pitt would introduce a new tax many hundreds of years later solely for the emergency of dealing with Napoleon.  It was called a tax on incomes.)  John claimed a thirteenth of the wealth of his subjects.  It was like a Mormon tithe.  He tried to dress it up as a feudal ‘aid’, but this was a tax, and a hated tax.  It may have been taken with the ‘counsel’ of some barons and bishops, but they did not represent the realm.

The Thirteenth was a great success economically, but in our terms it would be seen as a direct charge on the wealth of those whose support the king needed to govern.  And it was not levied under any custom or precedent.  Looking back now, we can see what will become a familiar pattern of the dependence of the crown on wealthy subjects for money alternating with the resistance of those subjects to the crown.

In November 1213, the sheriffs were ordered to send four knights from each county to assemble at Oxford on the feast of All Saints ‘to speak with us’ – the royal plural – ‘concerning the affairs of the realm’.  Here is a king driven to call in the notables of the realm to give him counsel – and most importantly, to agree to give him money.  It is a fate that would await each of Charles I and Louis XVI, but in each of their cases, the process proved to be terminal.

The knights were to attend armed – John needed to assess his military strength.  Medieval politics were at once more personal and demonstrative – a king was only as good and strong as his results were – but here you can see the germ of a parliament and its eventual victory over the crown by achieving control of revenue.

Resistance was mounting, especially from the barons up north.  Many shires refused to account to the king.  The barons then did something very English.  They went back to look for a precedent.  They got hold of the coronation charter of Henry I way back in 1100.  They now had Stephen Langton on side.  On a high altar, all men swore an oath to go into open rebellion against King John unless he confirmed the liberties set out in that charter.  That charter had begun by bemoaning the heavy exactions that had been laid on the kingdom, but these oaths would be echoed in the Tennis Court Oath sworn by members of the National Assembly at Versailles in 1789.  Other coronation charters were included in the dossier and translated into French so that they could be understood by the barons.  This was high level PR, but if there was a deal to be cut with the king, the barons would have lots of precedents.

Then John played the Holy Land or Jerusalem card.  He agreed to take up the cross and join the crusade.  Innocent III was thrilled to bits at this display of patent piety– but he was also enraged by anyone who might stand in the way of King John – which, at the end of 1214, included a large part of the English people, and what looks to be a clear majority of those with any clout.  In a letter written after the Charter was made, Innocent said that the rebel barons were ‘undoubtedly worse than Saracens, for they are trying to depose a king, who it was particularly hoped would succour the Holy Land.’  We need not pause to inquire whether it occurred to the Holy Father that this unrepentant rat of an English king could not have given a hoot for the Holy Land.  (We know that Shakespeare had a very measured view about the motives of English kings and the Crusades.)

The most recent biography of John, by Professor Stephen Church, published this year (1215), and from which a lot the historical detail of this note is drawn, says:

It is a fundamental aspect of the politics of 1215 that each of the parties was attempting to pursue its objectives through legal means.  Neither side wished to be seen to be acting illegally, and as a result, both acted cautiously.

We need to put much more weight on the second proposition than the first.  They were after all approaching that settlement, by agreement rather than force of arms, which would found the ideas leading to what we know as the rule of law.  That result was far from inevitable, but if you think that there is an inherent impossibility in a subject lawfully rebelling against his king under arms, hold your judgment a while – because that is just what John would be driven to agree to.

Professor Church is plainly right that neither side wanted to get caught going outside the law, and he here touches on an attribute that is part of the English genius for politics – the ability to rewrite history to suit their ideas of legality, and leech the story of revolution or other violence.  It is a facility shown by a nation whose lawyers were brought up on two things – precedents and fictions.  You just had to blend the two together – seamlessly, and with a straight face.

Innocent III was not so inhibited.  He ordered the barons to desist from threatening to use arms against their king, and he directed Langton to watch his back and to settle the dispute.  The barons, and the rest of England, were under no illusion about what side the pope was on.  He now claimed to hold John’s title to England.  Any suggestion that the barons could look to the pope for independent arbitration would have been laughed at.  The pope was moving to put them outside of at least ecclesiastical law.

Remember that the barons now had sworn to act together.  This is what the law would later condemn as a combination or conspiracy, and was not dissimilar to what Lincoln and the Union faced with the Confederacy.  The pope was escalating the dispute.  The barons therefore formally repudiated their homage to their king.  They said that they owed him no obedience at all.

This was then the equivalent a party to a contract now saying – you have by your conduct repudiated our contract and shown that you will not honour it: I shall not ask the courts to hold you to your contract; rather, I shall accept your conduct as bringing our contract to an end; as a result, I no longer have any obligation to you under that contract; I am free to make whatever alternative arrangements I see fit, and to hold you accountable for any damage that I suffer in that process.  That law was at least five centuries away in the future, but people did not have to wait for that to say that you cannot hold me to my promise if you have said that you will not keep yours.

The barons enlarged their combination or confederacy by entering into a sworn association with the people of the city of London.  This is important because it suggests that the barons were not just fighting and negotiating for their own particular rights and privileges.  They would claim in the Charter itself to speak for all free men in England.  The phrase ‘class war’ is slippery at the best of times, but it might be almost completely useless in trying to assess the effect of the Great Charter.

A very dangerous stand-off led to two documents, one called the Unknown Charter and the other the Articles of the Barons.  These in part dealt with the kind of issues that arise in a truce or cease-fire – like promises of safe conduct between parties who did not trust each other at all.  One said that ‘King John concedes that he will not take a man without judgment, nor accept anything for doing justice and will not do injustice.’  Could anything be wider – or more simply breached?

Another clause said that ‘if the burden of any army occurs, more may be taken by the counsel of the barons of the kingdom.’  Well, they would have to wait until 1689 to get that locked in.  Elsewhere, John promised that he would not move against the barons while talks were going on, and that he would only proceed against them ‘by the law of our realm or by the judgment of your peers in our court.’  It looks fair to say that most of the jurisprudence of the Fourth and Fourteenth Amendments in the U S derives ultimately from wording thrashed out by warring barons and a regal rat so that they could, as the Mafia say, meet to make the peace at a meadow on neutral ground called Runnymede.

It looks like the Charter was formally agreed to by proxies on 15 June 2015, but Professor Church says that the vital giving of homage did not take place until 19 June when the king authorised the taking of oaths by the barons who were to be members of the committee that we will come to.

If there was any form of reconciliation, it did not last – on either side.  The peace was as short-lived as the compact of the peace has been long lived.

IV

The immediate problem was the continued interference by Rome.  The pope believed that everyone in England was under him.  King John, being a rat, straight away complained to this foreign potentate that he had executed the Charter under duress.  Of course he was under duress.  There was a war going on and the barons had turned up armed.  If you are a king with no standing army, and all your best soldiers are against you, your options are limited.  It is said that the papal representative, Pandulf, who takes some stick from Shakespeare, had denounced the Charter on the ground that the barons had violated its terms, but in his bull Etsi carissimus, the Holy Father took a more lofty line.

The Bull records the interdict and excommunication against King John.  It says that John had had a change of heart.  The English king had granted his kingdom – and Ireland – to the Church of Rome.  He had taken an oath of fealty to the pope, and promised a yearly tribute ‘and is making magnificent preparations to go to the aid of the Holy Land.  But Satan has stirred up the Barons of England against him.’  (The spin people would probably now advise the pope against referring to a financial ‘tribute’ – suspicious minds might sniff protection money, or just a plain bribe.)  The Bull finds as a matter of fact that the Charter was obtained by violence, and it goes on:

We refuse to overlook such shameless presumption which dishonours the Apostolic See, injures the king’s right, shames the English nation, and endangers the Crusade….Almighty God, Father, Son and Holy Ghost, and by the authority of Saints Peter and Paul His apostles, we utterly reject and condemn this settlement.  Under threat of excommunication we order that the king should not dare to observe and the barons and their associates should not insist on its being observed.  The charter with all its undertakings and guarantees we declare to be null and void of all validity forever

The barons may have provoked this reaction, not just by the security clause, which involved real money and real estate, but by the high terms that they put in their preamble –‘through the inspiration of God, for the health of our soul and the souls of all our ancestors, for the honour of God, and the exaltation of Holy Church, and for the betterment of our realm…’

We see that when the pope came to list his grievances, the first was the dishonour to the Holy See.  Then came King John’s right – then the shame to the English nation.  On the other hand, the Catholic Encyclopedia (On-line) takes no small view of the position of Innocent III.  These are obviously large issues on which opinions may vary.  ‘Innocent could not as suzerain of England allow a contract which imposed such serious obligations on his vassal to be made without his consent.  The pope therefore declared the Great Charter null and void, not because it gave too many liberties to the barons, and the people, but because it had been obtained by violence.’  And, we might add, the Charter might have impeded the violence that the Church of Christ was intent on inflicting in the Holy Land, for which the splendidly reformed King John had been making such magnificent preparations.

If we put to one side religion, a course which in this instance is both proper and safe, we are left with political issues.  In truth, we are left with the ultimate constitutional issue: who is in charge here?  A foreign power sets aside a ‘settlement’ of ‘the English nation’ – the term ‘settlement’ is that of the pope – but the English do not seem to have taken much notice of the pope.  The Charter was issued and reissued over the generations until it acquired the standing of a ‘sacred text’, and it remains on the statute books of the colonies to this day.

King John’s standing has not improved since his death shortly after these events.  The barons would hardly have posed as freedom fighters, but their struggle for the various charters probably helped secure their position in a chamber of peers in the body that would be the main instrument in reforging the constitution of England so as to repatriate the Anglican Church and embed it securely in England safe from any further foreign ecclesiastical intervention.

V

A charter may be an instrument in which the sovereign recognizes rights or one which records an agreement between people.  Magna Carta does both.  This charter settled a dispute and each side gave undertakings that were intended to be legally binding.  That is what we call a contract.  The barons swore that they ‘will faithfully observe all that has been set forth above’ and the king undertook not to ‘procure from anyone anything whereby any of these concessions and liberties may be revoked or diminished.’  That is emphatically and definitively the language of contract.

The king may have wanted to put the document forward as a unilateral grant, but here we have a document entered into to settle a dispute that contains mutual promises – and rights if one side does not keep those promises.  These are all marks of a bilateral contract.  Yet English historians and philosophers have been curiously reticent about this.  We get a grant, a treaty, a declaration of right, a constitution, England’s first statute, or forma pacis.  It might be all those things and a contract too.  But whatever label you put on it, Magna Carta is the most significant constitutional compact in history.

What did Magna Carta say?  As ever with the sources of English law, it is not what people meant, but what they said – and, just as importantly, what others in a position of authority have held as a matter of law is the legal effect of what they said.

At the risk of being tart, the real significance of the Charter was that it happened at all.  The king had had to negotiate the terms on which he held the crown.  It may not have mattered so much what those terms were – what mattered was that he had to admit that he was there on terms at all.  It would be hard to say that you rule by divine right when you settle the terms of your appointment with your magnates.  We should, however, note some parts of the text.

The barons were too smart to make themselves the only beneficiaries of their negotiations with the King.  The vindication of the Church may or may not have been a veneer, but the class of beneficiaries of the Charter is wide.

You can divide the Charter into clauses dealing with feudal grievances, trade, central government, and limitations on arbitrary power.  Churchmen, lords, tenants, and merchants are separately provided for.  The beneficiaries range from widows to the City of London to God.  Indeed, God is the first nominated beneficiary.  The first and last clauses enjoin ‘that the English Church shall be free.’  The Latin is ecclesia Anglicana.  This then meant that the English church should be left free by the English crown.  It refers back to the sad affair of Beckett.  In time, it might acquire another meaning, not free from Westminster, but from Rome.

The Charter starts off, as was customary, with greetings from the king to all parts of the civil and religious hierarchy and, finally, ‘faithful men.’  The preamble says that it is ‘for the betterment of our realm’.  Article I refers to ‘the conflict that arose between us and our barons’.  (Article 51 refers more frankly to the coming period ‘after the restoration of peace’.  The king will remove all alien knights and mercenaries ‘who have come with horses and arms to the injury of the kingdom’.)  Article 60 was necessary to give a feudal spread to the grant of liberties to the people – it stipulates that ‘all men of our kingdom, both clergy and laity, shall, insofar as concerns them, observe [these liberties] toward their men.’  In other words, the benefits and liberties granted in the Charter were to be passed down the chain.  Some astute lawyers were involved in drawing up this document, and they were not acting solely in the interests of the barons.

Article 14 is vital.  It is about money.  It provides for what is to happen ‘in order to have the common counsel of the kingdom for assessing aid.’  ‘Aid’ there is the feudal word for tax.  To get ‘counsel’ on tax, the king will summon the first two estates, the clergy and the nobility, and when that summons has been made, ‘the business of the day shall proceed according to the counsel of those who are present.’  Those two estates will in time become three, and the requirement that the king ‘have the common counsel’ will harden into a requirement that the king get a statute from his parliament, because here is part of the history of parliament.  This provision then will be the lynchpin of the whole dispensation, since he who controls the money controls the game.

While we say that Magna Carta is a constitutional settlement, it says not so much about government itself, but a lot about the rights of people, and especially the administration of justice.  This is typical in English law.  For example, Article 45 is of interest to those progressive Law Officers who think that it is a good idea to appoint as judicial officers those who do not know what they are doing.  It provides that judges shall be appointed from ‘only such men as know the laws of the kingdom and well desire to observe it.’  Article 55 deals with ‘all fines which have been made with us unjustly and contrary to the law of the land…’  How often do you see a government admitting, in writing, that it has been operating unjustly and against the law?  Article 50 is altogether more personal.  It names eight men of distinctly French sounding names, and says that we ‘will utterly remove from their offices’ the relatives of those people ‘so that henceforth they shall have no office in England.’  Au revoir, mes amis.  We will have no nepotism for those over the water.  Article 59 even extends to the king of the Scots the benefits given to the barons of England.

But the Charter is remembered and still invoked for two articles on the administration of justice.  Articles 39 and 40 are as follows:

  1. No freeman shall be captured or imprisoned or disseised [deprived of land] or outlawed or exiled or in any way destroyed, nor will we go against him, or send against him, except by the lawful judgment of his peers or by the law of the land.
  2. To none will we sell, to none will we deny or delay right or justice.

You can see the seeds of these clauses in the Unknown Charter or the Articles of the Barons, but these words were meant to be etched in stone.  They are part of our legal life blood.  You might expect to find in a prayer book the phrase ‘nor will we go against him or send against him.’  If you want to know whether the original has the same lapidary quality, Article 40 in Latin reads: Nulli vendemus, nulli negabimus, aut differemus, rectum aut justiciam.  You will see immediately that Article 40 is not limited to any class of person at all, but is as general as possible, and sets obligations by reference to both right and justice. 

Article 39 is no less than the foundation of what we call the rule of law.  If the English people had only given Article 39 to the world, they would still have our gratitude.  For example, when nearly five centuries later, the French people rose up against the arbitrary powers of the Bourbons, one of their major grievances, extending across all classes, was that a French king could lock up a Frenchman indefinitely by the simple administrative expedient of issuing a lettre de cachet.  The king could just go against or send against his subjects in his own name – and he did so by saying ‘for it is our pleasure’ (car tel est notre plaisir).  That is just the kind of government action that Article 39 expressly outlaws.  What this clause says is that liberty and property are not to be interfered with without due process of law.  The phrase ‘due process’ enters into later versions of the Charter, and ‘due process’ is the concept that underlies much of the Bill of Rights in the United States – and our administrative law.

You can test the weight of these clauses by asking this question.  Is it possible to imagine one of Vladimir Putin’s KGB henchmen uttering more than a grunt in the face of a mention of either of them before dropping off another corpse at the gates of the Kremlin?

If you are asked to look at a contract to see who was calling the shots during negotiations, you will be very interested in the default clause or the security provisions in the contract.  If you borrow money from a bank to buy a house, and you default on repayment, the bank can sell your house.  If you borrow money for a company and default on repayment, the bank may send in a receiver over the business.  Most of the time, the bank will not need to get a court order to assist it to enforce its rights.  It will just rely on the terms of the contract of loan.  That contract sets out the law that the parties have said will apply to their contract.  There are difficulties about suing kings even now – what form of security, then, did the barons get from King John in 1215?

They favoured the receiver model.  They would not need a court order.  Article 61 refers expressly to security (securitas) and it is in horrific terms that not even the most over-mighty and overbearing corporation, outside of Russia, would dare to seek now.  It provides that if the king defaults, the barons can give him a notice to remedy that default.  If he does not, a committee of twenty-five barons ‘together with the community of the entire country, shall distress and injure us in all ways possible – namely, by capturing our castles lands and possessions and in all ways that they can – until they secure redress according to their own decision, saving our person and the person of our queen, and the persons of our children.’  Well, that is fine for the royal family, but what about the poor downstairs maid when that awful Robert de Ros, neither alone nor palely loitering, comes thundering over the drawbridge, leaving his chain mail behind him, in one of his beastly marauding moods?

That clause was no doubt put to the pope as evidence of duress.  It never appeared again in later versions.  It looks uncomfortably like a licence to rebel, or a recipe for civil war.  But the English never lost their taste for being hard-nosed with royalty.  The Bill of Rights of 1689 is both more subtle and more terminal.  The people say to their king – you cannot have a standing army (except on our terms) but we have the right to bear arms – if you and we fall out, and there is a fight, guess who will win.

VI

At about this time, speaking very roundly, there may have been something in the air in Europe.  We might now refer to it as a European spring.  The Sachsenspiegel appeared in Low German in about 1220.  It offered the following release from feudalism in terms not so far removed from our present law of contract: ‘A man may resist his king and judge when he acts contrary to law and may even help to make war on him…Thereby, he does not violate the duty of fealty.’  Hungary produced a Golden Bull in 1222 that said ‘no noble was to be taken or destroyed for the favour of any powerful lord unless he had first been summoned and convicted by judicial process.’  The effect of the due process clause in the Great Charter is obvious.  The default clause conferred ‘authority to resist and contradict us…without taint of infidelity.’  In the Spanish Privilegio de la Union, of 1287, the Crown pledged its good behaviour by surrendering castles and acknowledging that the people could choose another king if the incumbent contravened the privileges.  You can find similar themes in the Assizes of the Kingdom of Jerusalem, the privilege of the Brandenburg nobles, the Brabantine Charter of Cortenberg, the Statute of Dauphine, and the Declaration of the Communes of Languedoc (1356).

The theme was constant.  People were searching after an agreement that could bind their rulers.  Yet these efforts just petered out on the Continent.  Only in England did the quest take root and go on.  Why is this?

You cannot try to make a constitution in a vacuum.  You need at least two things – a body of existing law that commands the assent if not the respect of a majority of the people; and a body of judges to interpret and enforce those laws.  It looks like only England had those qualifications for a long time.  Remember that England was developing the first profession outside the church.  It was this profession – including the judges in that term – that would celebrate and nurture Magna Carta so that it would become ‘with all its faults a kind of sacred text, the nearest approach to an irrepealable fundamental statute that England has ever had.’  The reference to sacred text from the sober legal historian Maitland tells us something.  In order effectively to nurture a constitution, you need some kind of faith based on experience.  We call it tradition.

Less than a hundred years after the Great Charter, a man called Bracton published the second text-book on English law,  It was called On the Laws and Customs of England.  You can still buy brand new prints of the four volumes in a testament to American scholarship.  Maitland thought it was the ‘crown and flower of English jurisprudence.’  Its most famous line, in English, is: ‘The king is below no man, but he is below God and the law; the law makes the king; the king is bound to obey the law.’  It would take hundreds of years to nail that credo down, but it comes from the Great Charter, since, as Maitland also said, ‘in brief it means this, that the king is and shall be below the law.’

Straight after the line quoted, Bracton went on to say: ‘Let him therefore bestow upon the law what the law bestows upon him, namely rule and power, where rex rules rather than lex.  Since the king is the vicar of God, and that he is under the law appears clearly in the analogy of Jesus Christ, whose vicegerent on earth he is…’  You do not often see God being invoked to diminish the standing of kings.

When lawyers later referred to the Charter, which they did often, they stoutly adhered to the fiction that it had not said anything new, but had only restated ancient liberties.  If nothing else, the Charter made clear that the future of English law was with royal justice and that therefore there would be a law common to the entire nation.  By that quirk of history, King John continued the work of the great Henry II.

VII

We have seen the seeds of the idea of parliamentary control of revenue in the Charter, especially Article 14, and in the documents leading up to it.  Magna Carta looked forwards in at least two other ways.

First, we saw the intervention of a foreign power – the papacy – in the affairs of England in ways that now look to us to be fantastic.  This suited the weak King John who could change sides just like that, and form and renege on alliances at will.  But one day there would come a strong and arrogant English king who would not be pushed around.  If the pope got in his way on an issue of national importance – such as the succession to the throne – the whole edifice could easily come crashing down.  This is just what happened with Henry VIII and his divorce.  His pope had a conflict of interest, and could not oblige the English king with the divorce that he needed to secure the succession.  And by that time, the English parliament was secure enough to legislate for Home Rule for England and the constitution of that nation and its national church.  The revolution had next to nothing to do with religion.  It was about self-government and its effects have been sadly underestimated by legal historians.  Just look at those nations in Europe that did not nationalise their church or cut free from Rome.

By the time that Shakespeare wrote King John, the conflict between the English crown and the Church of Rome had been resolved, adversely to Rome.  Shakespeare put into the mouth of King John the following rebuff to the Pope.

What earthy name to interrogatories

Can test the free breath of a sacred King?

….

Tell him this tale, and from the mouth of England

Add thus much more that no Italian priest

shall tide or toll in our dominions:

But as we, under Heaven, are supreme head.

So, under him, that great supremacy. (3.1, 74-83)

Those words can still get a frisson from an English audience, although, in fairness to the author, he was very generous in a later play in his treatment of the first innocent victim of Henry VIII, Catherine of Aragon – and if John had had the force of character of Henry, as well his downright nastiness, the constitution may have taken much longer to take shape.  The reference to ‘supremacy’ takes us to the act that declared ‘this realm is an empire’ – it could have no superior on earth.

The second way that our story looks forward is this.  Tucked away in the wording of the security clause is an expression that contains the germ of another idea, and which shows how universal was the liberation extended by the Charter.  The right of entry is given to a committee of barons ‘together with the commune (or community) of the entire country’ (cum communia totius terrae).  Communis is a very, very potent term here (as would be communio in a church).  When the French monarchy was brought down in and after 1789, the government of the country for a large part came to rest with the commune of Paris, especially after the 10 August coup of Danton.  The revolutions that shook the great cities of Europe in 1848 were centred in the communes.  A movement in favour of revolutionary change across the entire world to free the masses of their chains, which would cause so much misery in the twentieth century, was called the Communist Party after these communes.  Yet here we have English barons giving these communal rights to the yeomen and all the freemen of England way back in 1215.  It was many centuries ahead of its time.

We saw that at a critical phase, the barons swore an oath with citizens of London.  Town and country agreed not to make a separate peace.  Here we see the burgers – later, the bourgeoisie – coming together with an oath of mutual support.  The communal oath of the burgesses in France at this time put Marc Bloch at his most lyrical.

It was sworn association thus created which in France was given the literal name of commune.  No word ever evoked more passionate emotions.  The rallying cry of the bourgeoisie in the time of revolt, the call for help of the burgess in peril, it awakened in what were previously the only ruling classes prolonged echoes of hatred….The distinctive feature of the communal oath, on the other hand, was that it united equals…..It was there in the commune that the really revolutionary ferment was to be seen, with its violent hostility to a stratified society.  Certainly these primitive urban groups were in no sense democratic.  The ‘greater bourgeois’, who were their real founders and whom the lesser bourgeois were not always eager to follow, were often in their treatment of the poor hard masters and merciless creditors.  But by substituting for the promise of obedience, paid for by protection, the promise of mutual aid, they contributed to the social life of Europe a new element, profoundly alien to the feudal spirit properly so called.

These are indeed swelling themes, and it may be that this very great French historian of the medieval world touched here on the essence of the French Revolution – taking away obedience to superiors bought with protection and putting in its place the promises of mutual aid exchanged between equals.  The problem was that trying to fuse the movements of a millennium into one generation produced a fission that still endures.

VIII

On Bastille Day, 1940, France was falling and England was facing destruction, a worse destruction than that of 1066.  The main adviser or minister to the King of England – the leading man in what had come to be called the Parliament – addressed the English nation.  During his speech, the English leader – he was by then called Prime Minister and his name was Winston Churchill – said:

Here in this strong City of Refuge which enshrines the title-deeds of human progress and is of deep consequence to Christian civilization ….This is no war of chieftains or princes, of dynasties or national ambition; it is a war of peoples and causes…This is a War of the Unknown Warriors.

The Great Charter is one of those title-deeds.  It is up there with, and it prefigures, the American Declaration of Independence and the French Declaration of the Rights of Man.  It was an essential part of a progress that would, against the odds, enable England to defeat the enemy it then faced, Adolf Hitler and the Third Reich.  More importantly, because of that progress, England never produced a Hitler.  You cannot allow someone to be above the law when you have signed up on the principle that we are all under the law – and we are still groping after the idea that we should all be equal in the eyes of that law.  Equality looks to be as far away as ever.

The novel as opera: dramatic truth

In the post yesterday, I suggested that you might want to treat a novel such as Crime and Punishment like an opera.  By chance, I picked up Les Miserables again, and my eye fell on the following by Peter Washington, who was the General Editor of the Everyman Library, and who I see wrote a book called Literary Theory and the End of English.  His Introduction deals with another problem I have had with great nineteenth century novels – the role of coincidence.  Mr Washington says this:

In European literature up to the later 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, though we can still find it in novels by George Eliot where the language and symbolism of Christianity survive the metaphysical reality.  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 philosophical value.  Like Dickens at his best, he uses coincidence to articulate a sense of order and inevitability amidst the terrifying flux of modern life.  Even as we recognise how unlikely it is that Valjean should encounter Javert in the street, or that Marius and the Thenardiers should 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.

This notion of dramatic truth is terribly important – although insight or enlightenment may be safer terms than truth.  I know something of the French Revolution.  I have read the major works by French and other historians.  If someone asked me how to come to grips with these earth-moving events, I would point them in two directions.

Carlyle’s history is likely to give them far more insight than any other written work simply because of the almost biblical power of his language and the journalistic structure of the work.  The other source would be two great movies.  La nuit de Varennes gives you the spirit of the uprising as you follow the king and queen on their fated and failed escape that stopped at Varennes – you never see them, but you know their fate.  Danton is a film from a flawless play about the two leading figures in the Terror – and the guy playing Robespierre is up to Depardieu as Danton.  These two movies will give you better insight – dramatic insight – than a shelf of books.

As an example, very early in Les Miserables, a most unusual man, a saintly bishop, comes across a man despised because he had been a member of the National Convention that condemned Louis XVI.  (It starts in 1815.)  The dying revolutionary says ‘The French revolution is the consecration of humanity.’  The bishop murmurs ‘Yes, ’93!’ (the year of the Great Terror.)  ‘Ah! You are there! ’93!  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.’  The novelist, the artist, can open different windows into our minds.  Every now and then, as with Carlyle, you get a historian with the same capacity, and the result is ravishing, and you get a different kind of insight or enlightenment.

I shall come back to this, but below is an attempt I made to show the magic of Thomas Carlyle, The French Revolution.  I can give you an assurance.  It is hoary, but here absolute.  They don’t make them like that anymore.

Extract

THE FRENCH REVOLUTION

Thomas Carlyle (1837)

J M Dent & Co (Everyman), 1906; 2 volumes; burgundy cloth with gilt lettering; subsequently placed in split slip-case with marbled exteriors, and burgundy silk ribbon extractors.

The Art of Insurrection.  It was an art needed in these last singular times: an art for which the French nature, so full of vehemence, so free from depth, was perhaps of all other the fittest.

How would a French provincial official back then have gone about making an observation about King Louis XV in a ‘sleek official way’?  At the very start of this book, Carlyle tells us that a man called President Henault took occasion ‘in his sleek official way to make a philosophical reflection’ about Louis XV.  If you look up President Henault, you will find that he seems to have been just the sort of French official who might have acted that way.  So, here we have a writer who arrests us in his first line.  We know at once that he is writing this book as literature, or, as we might now say, journalism.  But the book is much more than journalism or literature – it is theatre, and very high theatre at that.

As you get into this book, you will get used to being affronted in both your prejudices and your senses.  It is like being on the Big Dipper, and you are frequently tempted to ask – just what was this guy on when he was getting off on all this stuff?

The writing is surging, vivacious, and elemental.  The author likes to see the world from on high, and to put us all on a little stage.  When poor Louis XVI and Marie Antoinette quit the Louvre under cover of night in a bid to escape from France, we get a costume drama.  ‘But where is the Lady that stood aside in gypsy hat, and touched the wheel-spoke with her badine?  O Reader, that Lady…was the Queen of France!…Flurried by the rattle and rencounter, she took the right hand, not the left; neither she nor her Courier knows Paris…They are off, quite wrong, over the Pont Royal and River; roaming disconsolate in the Rue de Bac; far from the Glass-coachman, who still waits.’

You too can ‘roam disconsolate’ in Paris.  It is simple to retrace those steps, and it must have been quite a stroll for the Queen of France.  Instead of heading up the Rue de L’Echelle, they went up Rue Saint Honore, and then ended up on the left Bank.  What turn might the Revolution have taken if the Queen had turned the other way?  Or if the Austrian Marie Antoinette had known as least something of the lay-out of Paris?  That the Louvre was then, as it is now, on the Right Bank?

The coach driven by the Swedish Count Fersen gets the royal family out of Paris ‘through the ambrosial night.  Sleeping Paris is now all on the right-hand side of him; silent except for some snoring hum…’  There is a change of carriage and then a German coachman thunders toward the East and the dawn.  ‘The Universe, O my brothers, is flinging wide its portals for the Levee of the GREAT HIGH KING.  Thou, poor King Louis, fares nevertheless, as mortals do, toward Orient lands of Hope; and the Tuileries with its Levees, and France and the Earth itself, is but a larger kind of doghutch, -occasionally going rabid.’  This is very typical – a surge of Old Testament, Shakespeare and Romantic poetry that invokes the heavens, and then falls calmly but flat in the gutter.

Louis is spotted by a tough old patriot called Drouet who recognized the nameless traveller from the portrait on the currency.  They are brought back from Varennes to the City of Light.  At Saint Antoine, the workers and the poor have a placard; ‘Whosoever insults Louis shall be caned; whosoever applauds him shall be hanged.’  This was the second time that the family was returned to Paris.  The first was when the fishwives brought them in from Versailles.  Carlyle had then said: ‘Poor Louis has two other Paris Processions to make; one ludicrous ignominious like this: the other not ludicrous nor ignominious, but serious, nay sublime.’  That will be his trip to the scaffold.

Carlyle would later become infatuated with heroes and the idea of the strong man, but even French historians struggle to find heroes in their Revolution.  Carlyle does his best for Mirabeau and Danton, but they were both on the take.  The bad guys are easy for him – Marat and Robespierre.  (Both Danton and Robespierre used the ‘de’ before it became lethally unfashionable.)  When someone moots a Republic after the flight to Varennes, we get: ‘“A Republic?” said the Seagreen, with one of his dry husky unsportful laughs, “what is that?”  O seagreen Incorruptible, thou shalt see!’  After Robespierre lies low in the general unrest, we get: ‘Understand this, however: that incorruptible Robespierre is not wanting, now when the brunt of battle is past; in a stealthy way the seagreen man sits there, his feline eyes excellent in the twilight…..How changed for Marat; lifted from his dark cellar into this luminous” peculiar tribune!”  All dogs have their day; even rabid dogs.’

The two references to rabid dogs are characteristic.  The son of a Calvinist stonemason in the lowlands understood and loathed the lynch mob, which France had descended into.  At the beginning of the chapter headed The Gods Are Athirst, Carlyle said that La Revolution was ‘the Madness that dwells in the hearts of men.’

And this Scots Calvinist rails against the weakness of mankind like a Hebrew prophet.  He knew, with Isaiah, that all nations before God are as nothing, and are counted before God as less than nothing, and as vanity; and that God brings the princes to nothing, and makes the judges of the earth vanity.  And he knew, with the author of the book of Ecclesiastes, that all is vanity, and that when it comes to evil, there is nothing new under the sun.

The lynch mob was at its peak in the Terror.  In some of the strongest passages in the book, Carlyle tells us how they made wigs (perrukes) taken from the heads of .guillotined women and breeches from human skins at the tannery at Meudon.  (The skin of men was superior and as good as chamois, but women’s skin was too soft to be of much use).  There is, we know, nothing new under the sun.

Hilaire Belloc thought that this writing was ‘bad’ and ‘all forced.’  That moral evasion may have been possible in 1906, when Belloc wrote it, but not after Gallipoli, Armenia, Auschwitz, Hiroshima, Rwanda, and Srebrenica.  We have now seen other nations, European nations, forfeit their right to be part of the family of man.  Carlyle is merely documenting one such case in one of the most civilized nations on earth.  Does history hold a more important lesson for us?  Has the story been told this well elsewhere?

So, we can put to one side all the later stuff about heroes.  (It is just as well that the book ends with the non-existing ‘whiff of grapeshot’ – Carlyle had a view of Napoleon that is not now widely shared on either side of the Channel.)  If nothing else, Carlyle believed that people make history.  The alternative, that history makes people, has to face the challenges that it is dogmatic, boring, dangerous, and bullshit.  You will see that problem in spades when we get to Tolstoy.

Carlyle wanted to tell a story and to make the dead come alive.  In his own terms, he wanted to ‘blow his living breath between dead lips’ and he believed that history ‘is the essence of innumerable biographies.’  He has done that for me six times, and I am about ready for my next fix.  The graph-makers can stick with their graphs.  The French Revolution is history writ very large, and it has never been writ more largely than here.

When Winston Churchill came to describe the heroism of the Finns in resisting Soviet Russia, he finished with a figure of speech that concluded with the words nay, sublime.  When a journalist on The Wall Street Journal came to describe how French bankers recently went long on Italian debt, she said that they had done so in their sleek official way.  There was no attribution in either case, and none was needed – it is a comfort for some that there may be a community of letters out there that we can all bank on.

And look out for the one who gives you a dry unsportful laugh, whether or not his feline eyes glitter in the twilight.

Paris and Terror VI – Terror in History

 

Terror, as we saw, has a long history in the Holy Land – I refer back to the first post in this series.

Terror has featured in the history of Israel since before that nation was born. Terror was an essential part of the process of the birth of Israel. Evelyn Waugh spoke of the British successors to Allenby ‘decamping before a little band of gunmen.’ This led Paul Johnson to refer in his History of the Jews to ‘yet another contribution to the shape of the modern world: the scientific use of terror to break the will of liberal rulers. It was to become a commonplace over the next forty years’ – the book was published in 1987 ‘but in 1945 it was new. It might be called a by-product of the Holocaust, for no lesser phenomenon could have driven even desperate Jews to use it. Its most accomplished practitioner was Menachem Begin.’

Begin came from a Polish town where only ten out of 30,000 were not murdered. Names like the Irgun and Stern Gang were associated with religious fanatics who became serial murderers. ‘It was my faith against his faith.’ The celebrated bombing of the King David Hotel killed twenty-eight British, forty-one Arabs, and seventeen Jews. Was that rate of slippage acceptable? A sixteen year old school-girl gave a warning as part of the plan. Begin mourned the Jewish casualties alone. Begin later saw that two British sergeants were hanged and that their bodies were mined.

The massacre at Deir Yassin in 1948 was greeted by Begin as ‘this splendid act of conquest…..As at Deir Yassin, so everywhere, we will attack and smite the enemy. God, God, thou hast chosen us for conquest.’ That is a piece of the book of Joshua and some see it as ‘relevant to the moral credentials of the Jewish state’. More than half a million Arab inhabitants fled Israel. Begin later became Prime Minister, but the Arabs, inside Israel or not, do not see any difference in the policy or practice of various governments, which they see as a policy of merciless expansion at their expense. Religious leaders on each side assure their followers that God is with them. The little area of Jerusalem might be the most accursed on earth.

It was the same with the war of independence that led to the creation of the republic which is the prime protector of Israel – and as the Arabs see it, the prime cause of the prolongation of their agony. The rebels in America who rebelled against their king were liable to be hanged for treason. Appalling atrocities were committed on both sides – as happened when an invading trained army meets guerillas defending their own soil. To see what their troops would meet in Vietnam or Afghanistan, American generals needed only to look at what happened to the British Army around Valley Forge and elsewhere. We are now familiar with the transition from terrorist to freedom fighter to liberator to national hero and founder of the nation – but you have to win. And in the meantime, as one American rebel said, you stick together, or hang separately

The second President of the US, John Adams, was severe early on about what to do with the oppressors: ‘This [the Tea Party] is but an attack on property. Another similar exertion of popular power may produce the destruction of lives. Many persons wish that as many dead carcasses were floating in the harbour as there are chests of tea. A much less number of lives however would remove the causes of all our calamities.’

When the war started, the American colonists felt that they were fighting on the moral high ground, a position that they have never surrendered. Appalling crimes were committed on both sides, especially in the civil war in the south between the Patriots and Loyalists. There were, Churchill said, ‘atrocities such as we have known in our day in Ireland.’ Professor Gordon S Wood said that the ‘war in the lower south became a series of bloody guerilla skirmishes with atrocities on both sides’ (like Vietnam). But for the intervention of the French, this civil war – guerilla war may have gone on for years and degenerated into what would happen in Latin America with ‘Caesarism, military rule, army mutinies and revolts, and every kind of cruelty’ (like the Roman Empire).

The mention by Churchill of the atrocities in Ireland is interesting because until recently Britain was haunted by the spectre of Ireland and terrorism. Those crimes in turn ultimately derived from outrages committed by the English in Ireland over more than six hundred years. The ethnic cleansing effected by Cromwell at Drogheda and elsewhere was done in the name of God and against a native people that the English saw as racially inferior. Racism in religion is a potent driver of terrorism.

As for France, the use of the word terrorist still takes colour from the Terror that was invoked in self-defence by the young republic. Before the government instituted its own regime with the guillotine and the Law of Suspects, the people – the masses for some – had taken matters into their own hands by massacring suspected enemies like priests in the infamous prison massacres in 1792 remembered as the September Massacres. ‘Let the blood of the traitors flow. That is the only way to save the country’, croaked Marat. At various prisons men broke in to slaughter the inmates. From about a thousand to fifteen hundred people, mainly ordinary criminals were killed. It was common to set up a cruel mockery of a hearing where the suspect could be examined while listening to his or her predecessor being slaughtered behind the door. One survivor of the Abbaye recalled that they used to watch the butchery so as to try and learn how to die with the least pain when their turn came. ‘Man after man is cut down; the sabres need sharpening, the killers refresh themselves from wine-jugs. Onward and onward is the butchery; the loud yells wearying into base growls. A sombre-faced, shifting multitude looks on; in dull approval; in dull approval or dull disapproval; in dull recognition that it is a Necessity.’

The September massacres of 1792 are not just a case of inmates of gaols being no worse than their gaolers, or what might happen when power is given to those who are least to be trusted with power. Nor is it just a case of venomous force of envy and the cruelty of the revenge of the dispossessed. Nor is it just a case of the danger of rule by the people – it is a case of the danger of rule by people. The mainstay of the rule of law is that we are ruled by laws, not men and women. The September Massacres are the jurists’ final nightmare – lynch mobs licensed by a failed state.

France would be convulsed by uprising and terror time and again in the nineteenth century. In 1848, a revolution ended in a bloodbath that disgraces Western civilisation. That very great writer Gustave Flaubert left us an amazing picture of hell on earth that must test our endurance. ‘Nine hundred men were there, crowded together in filth, pell-mell, black with powder and clotted blood, shivering in fever and shouting in frenzy. Those who died were left to lie with the others. Now and then, at the sudden noise of a gun, they thought they were all on the point of being shot, and then flung themselves against the walls, afterwards falling back into their former places. They were so stupefied with suffering that they seemed to be living in a nightmare….Because of a fear of epidemics a commission of inquiry had been appointed. On the first steps, its president flung himself back, appalled by the odour of excrement and corpses. When the prisoners approached a ventilator, the National Guards on sentry duty stuck their bayonets, haphazard, into the crowd to prevent them loosening the bars. The National Guards were in general pitiless. Those who had not been in the fighting wanted to distinguish themselves now, but all was really the reaction of fear. They were avenging themselves for the journals, the clubs, the doctrines, for everything that had provoked them beyond measure for the last three months; and despite their victory, equality (as if for the punishment of its defenders and mockery of its enemies) was triumphantly revealed – an equality of brute beasts on the same level of blood-stained depravity; for the fanaticism of vested interests was on a level with the madness of the needy, the aristocracy exhibited the fury of the basest mob, and the cotton night-cap was no less hideous than the bonnet rouge. The public mind became disordered as after a great natural catastrophe, and men of intelligence were idiots for the rest of their lives.’

After the Paris commune of 1870 – the event that leads to the word Communism – about 20,000 communards were slaughtered. Emile Zola said: ‘The slaughter was atrocious. Our soldiers…meted out implacable justice in the streets. Any man caught with a weapon in his hand was shot. So corpses lay scattered everywhere, thrown into corners, decomposing with astonishing rapidity, which was doubtless due to the drunken state of these men when they were hit. For six days Paris has been nothing but a huge cemetery.’

So, violence, uprisings, and terror are part of the fabric of history of the West, and not just the Third World or failed states. The most august components of what we know as the West have had their share of terrorists. And that is without going to the Christian church – to, say, the Crusades, or the Inquisition, or the brutal murder and repression of natives in every land that western nations brought within their empires.

It will be adequate to refer to some well-known passage of Edward Gibbon on the crusades.

The cold philosophy of modern times is incapable of feeling the impression that was made on a sinful and fanatic world. At the voice of their pastor, the robber, the incendiary, the homicide, arose by thousands to redeem their souls by repeating on the infidels the same deeds which they had exercised against their Christian brethren; and the terms of atonement were eagerly embraced by offenders of every rank and denomination. None were pure; none were exempt from the guilt and penalty of sin; and those who were the least amenable to the justice of God were the best entitled to the temporal and eternal recompense of their pious courage. If they fell, the spirit of the Latin clergy did not hesitate to adorn their tomb with the crown of martyrdom; and should they survive, they could expect without impatience the delay and increase of their heavenly reward.

Gibbon then goes on to describe the beginning of the first Crusade.

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

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

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

Yes, the murderers of Muslems were offered the crown of martyrdom and an increase in heavenly reward, but does any of this tale of cruelty and misery have any meaning for terrorism being inflicted in the name of Islam now?

Terror in Paris V – Surveillance

Murders like those in Paris committed in the name of organisations prompt calls for surveillance of the members of such organisations.  Below is an extract from Terror and the Police State dealing with surveillance in the Paris Terror and elsewhere.

 

Surveillance

The proposition ‘Big Brother Is Watching You’ has become justly famous since the luminous mind and the graphic pen of George Orwell depicted the totalitarian state in Nineteen Eighty-Four. It is an essential part of that sense of entrapment, powerlessness, enclosedeness, inevitability and hopelessness which, together with the prevalence of informers and denouncers, and a feeling of randomness, leaves mere objects of a police state feeling utterly helpless – and that is in large part the object of the exercize – to sterilise the individual. The end condition of unaccommodated man was described in King Lear as follows:

As flies to wanton boys are we to th’ gods,

They kill us for their sport. (Act 4, Scene 1, 36-37).

We have seen that the Nazi regime did not just threaten those in a minority – this colossal machine rose up and brooded over every single person in the Reich. The threat of arrest and detention, and dismissal and disgrace, hung over everyone except the Leader, and no one knew when it might come or how it might fall. The collective fear within the nation left in a kind of submission or acquiescence those who had not been seduced by the glitter and the lies – and the successes, at home, and across borders.

In Nazi Germany, every group of houses had a ‘Block Warden.’ These were at the bottom of the hierarchy, neither respected nor loved. Every local branch of the Party had an average of eight cells with about fifty households in each. The Blockwart was responsible for what might be called the political supervision of about fifty households. He was in charge of seeing that flags and bunting were put out, and that his people voluntarily attended parades, but he was also an access point for informers, and a source of information in his own right. He was commonly a very minor party functionary, doubtless with the social scars to prove it, and he was concerned with both propaganda and the maintenance of order. Those who had been bombed out or who had issues with ration cards would go to him first, but he was also a reporting post.

Like any good German, he had to report dangerous or suspicious behaviour, and when he did, the suspect could expect a visit from the Gestapo. He was therefore what might be called an ‘officious bystander’, and he was loathed accordingly. In many cases, he was called simply der Braune, ‘the brown one’, after the brownshirt that many of his ilk commonly wore. They were also called Political Leaders, and by 1935, there were perhaps 200,000 of them. Richard Evans makes the remarkable assertion that ‘including their helpers there were almost two million Block Wardens by the beginning of the war.’ They must have been like a sinister and all pervasive Dad’s Army, and since a majority were middle class, they may have been even more unpopular in working class areas.

Professor Evans describes this level of surveillance as follows:

They were often the first port of call for denouncers, and they exercised close surveillance over known dissenters, Jews and those who made contact with them, and ‘politically unreliable’ people, usually former opponents of the Nazis. Known derisively as ‘golden pheasants’ from their brown-gold uniforms with their red collar epaulettes, they were required to report ‘rumour-mongers’ and anyone who failed to conform to the district Party organisation, which would pass on their names and misdemeanours to the Gestapo. Those who fell foul of the Block Wardens could also be denied state benefits and welfare payments. Other branches of the huge Nazi Party apparatus had similar local officials, ranging from welfare service to the Labour Front and the women’s organization, and all of them carried out similar functions of surveillance and control. In factories and work places, officials of the Labour Front, the employers, the foremen and the Nazi Security Service took over the functions of the Block Warden. Those workers who did not toe the line were singled out for discriminatory treatment, denial of promotion, transfer to less congenial duties, or even dismissal. ‘You couldn’t say anything,’ recalled one worker in the Krupp engineering factory later: ‘the foreman was always standing behind you, nobody could risk it.’ The Nazi terror machine reached down even to the smallest units of everyday life and daily work.

During the time of the French Terror, France was hardly a police state, at least in the sense that we understand the term now. But, in and from March 1793, France found itself facing mortal threats from within and without, and to help it to survive those threats, it passed a series of emergency measures, such as the creation of the Committee of Public Safety and the Declaration of Revolutionary Government (in October), that were bona fide emergency measures. Their General Dumouriez was about to defect; the Vendee and Marseilles were about to erupt; they were yet to win their first major victory against monarchist regimes; and they were fairly obviously heading to a showdown between the two completely different points of view on how the revolution might go forward – for constitutional change to make the middle class and property feel secure; or for radical change to make the people at the bottom better off. It was in short, time to take the gloves off, and what we know as surveillance was an essential part of the package, and one that would see those at the bottom – the sans-culottesgiven direct power to control events in the revolution. This would be, for better or worse, people power in action.

On 21 March 1793, the National Convention made a law to set up Surveillance or Watch Committees. The recital said that the Convention considered that ‘at a time when the allied despots threaten the Republic still more by the efforts of their intrigues than by the success of their arms, it is its duty to prevent liberticide plots.’ Propaganda is rarely either pretty or sensible, but every commune, and each section in a larger commune, was to have a committee of twelve citizens elected by ballot – former priests and nobles were excluded. They were to take ‘declarations’ from foreigners in each arrondissement, but their work came to be directed against all suspected persons, French as well as foreign. They came to be known as ‘revolutionary committees’ in the Parisian sections. They might in truth be said to represent a devolution of power, but they were the vehicle in which the sans-culottes might at least feel that they were realising some political ambition.

These people had no small power in a time when being suspect might get you in prison (although the Law of Suspects was not passed until September.) They had a role of general surveillance that was utterly inhibited by forms and equally uninhibited by legality. These committees would be in charge of ‘Civic Certificates’ or ‘Civic Cards’, certificats de civisme. These attested to the patriotism of the bearer, and would be essential to anyone wishing to move around France if they were not to be treated as suspect where they arrived. Every citizen was required to certify before the commune or the committee his place of birth, his means of livelihood, and ‘the performance of his civic duties.’ We have seen a committee like this at work in the extracts from Les Deux Amis. They gave ordinary people the chance to terrify other ordinary people.

These committees look to have had great power, much more power and status than the German ‘Block Wardens’, although their roles had something in common. In parts of Paris there was a concerted effort to spread the sans-culotte zeal into less ardent arrondissements. Anyone with any experience of politics at the most local or grass-roots level will understand the power that bodies like these would possess, not least in a revolutionary state at war.

In September, the Paris Commune set out even broader grounds on which Civic Cards might be refused, some of which might now afford grounds to smile to those who struggle with the concept of patriotism at the best of times – ‘Those who pity the farmers the and greedy merchants against whom the law is obliged to take measures, …those who in assemblies of the people arrest their energy by crafty discourses, turbulent cries and threats, ….those who speak mysteriously of the misfortunes of the Republic, are full of pity for the lot of the people, and are always ready to spread the bad news with an affected grief, ….those who received the republican constitution with indifference and have given credence to false fears concerning its establishment and duration, or ….those who do not attend the meetings of their Sections and who give as excuses that they do not know how to speak or that their occupation prevents them.’ What might fairly be described as the clincher was ‘Those who having done nothing against liberty but have also done nothing for it.’

It is in its way a telling list of demons, but it would have been difficult to have opened your mouth without risking what may even then have been described as political incorrectness. What we do know is that the more insecure a regime is, the more it wants to know everything that you do and the more that it worries about anything you do that is somehow different. It is for that reason hostile to any reasonable conception of personal freedom. You could not afford to deviate, or even to be seen to combine, since, as Saint Just said, ‘Any faction is criminal, since it tends to divide the citizens.’

Terror and the Police State – extract

Preface

Here is the beginning of the book Terror and the Police State.  I have put out some extracts before and others will follow, but the Preface seems to have relevance to the present discussion.  The case of Bob is real and continuing.  That vigilance is a cost of freedom might be a cliché, but it is hard to avoid.

Read on in the Preface above.

Terror in Paris III – Terror and Religion in France

 

There is a long history of terror and religion in France. The Reformation led to religious wars as bloody and terrifying as those in Germany. The St Bartholomew’s Day massacre in 1572 saw about 2000 Protestants (Huguenots) murdered in Paris and about 8000 in the provinces. England and Europe were horrified. The Edict of Nantes granted protection to Protestants and was a step toward tolerance and a separation of Church and State, but Cardinals Richelieu and Mazarin would be instrumental in governing France, acting effectively as Prime Ministers.

In 1685 the Sun King, Louis XIV, revoked the Edict, and Protestantism was again illegal. Protestant clergy had two weeks to convert or get out. The consequent brain and capital drain – the reason South African cricketers have curious names – damaged France, much as the expulsion of the Jews damaged Germany later. Louis XVI reinstated toleration just before the Revolution but the Catholic Church was a rich and corrupt part of government and was hated as much as the aristocracy.

The position of the Catholic Church in France then has been compared to that of the Jewish community in Germany later. The abbey of Saint-Germain-des-Pres owned land equivalent to two arrondissements in Paris. Accordingly, much of the venom of the Revolution was directed against the Church and its clergy. The object was to strip them of their power and wealth. Many wanted to annihilate the Church.

In 1790 the National Assembly enacted the Civil Constitution of the Clergy. They broke with Rome. The clergy were to be elected. They had to take an oath of loyalty. This split the clergy. There were a appalling massacres of priests. The revolt in the West (the Vendee) was both Royalist and Catholic, and the slaughter was atrocious.   Up to a third of the population was extirpated in what we would call genocide. Priests were locked on boats that were then scuttled on the Loire and men and women were stripped naked and flung off the boats in ‘republican marriages.’ During the Terror proper, blood literally ran in the gutters of France from the guillotine.

There is more about religion in the French Revolution in the attached. Religion in France.

Napoleon restored order and did a deal with the Vatican (the Concordat) for much the same reasons that Hitler would: to shut them up and to lock them in. The Church remembered the drownings and the slaughters rather than the Rights of Man and it became mindlessly reactionary. There was violence and terror in uprisings in 1830, 1848, and 1870 as France tried one form of government after another. The Church was not a main player in these events, but it was again seen as the party of the established social order and the enemy of the poor. And the Church was bitterly resented for its interference in social and sexual life by its teaching on birth control and its insane strictures on dancing – the polka and waltz were seen as morally dangerous.

Toward the end of the century France was convulsed by the Dreyfus Affair. It recurs throughout Proust. A high ranking Jewish army officer was cashiered on false evidence and process. The army covered up murderously and the Establishment backed it up to the hilt. So did the Church. The split ran for years and years and showed an ugly anti-Semitism and moral thinness in French society at the top. In its blind reactionism, the Church sided with the Establishment. The Church’s hypocritical and sex-crazed priests were rightly or wrongly seen to be in league with a greedy and presumptuous bourgeoisie and a vacuous and arrogant aristocracy. When that side lost, there would be a high price for the Church.

The other source of hostility was that Catholic orders were beyond the control of the bishops and the Concordat. Their role in education was seen as inimical to equality and fraternity. The French saw something that this country now knows too well – deux jeunesses, two childhoods, splitting society. In the early 1900’s a government led by Freemasons secularised the nation. Most religious orders were dissolved and forced to go abroad. Members of religious orders were prohibited from teaching. Education was the function of the family and government. The response of the Vatican led to a formal separation of Church and State. That secularism, what the French call laicite, has been planted deeply with blood into the French world. The sexual abuse scandal has served to confirm it and the decline of the Church in French life.

It was not until this time that the government of France became settled after the convulsions and blood of the Revolution and the Napoleonic Wars that killed millions. Then came the two world wars. During the second, many French people collaborated in the Holocaust and trainloads of French Jews were despatched to be murdered en masse. After those wars, the failure of France as an imperial power, came home to haunt it. It was subject to waves of terror for decades, especially because of its conduct in Algeria. Its standing in other Muslem nations was not much better. You will never see a French version of the Commonwealth Games. The 1968 uprising underlined the hollowness of the French constitutional fabric, but the intervening peace may be the longest period of stability since Calvin.

What does this mean for the recent surge in terror in France? Put to one side the religious strife and the waves of terror running through the centuries. Put to one side current reports that the Jewish community has more fear of attack than the Muslem community, and is leaving France in numbers. (The four who were murdered in the supermarket were buried in Israel.) What this history means is at least this. If you are a migrant with religious beliefs and practices and you want a government representing a nation that actively supports organised religion taking part in running the country, then you are in the wrong country in France. Your position is even worse if you are liable to be hurt by its other people exercising their legal rights. If you want the people of your host nation to change their ways and to give up their rights to suit your religious sensitivities, you are suffering from a delusion that is not endearing.

Muslems who want a government that will protect their religious sensitivities have plenty on offer. Saudi Arabia, for example, one of the most backward, decadent and cruel regimes on the planet, and a key ally in our war on terror, is currently administering 1000 lashes in public to a man given ten years in jail for being rude about Islam in a blog. Those who are sour on Charlie Hebdo might bear this chasm in mind.

Terror in Paris – I – A law of suspects?

 

There has been an increase in terror attacks in the West recently. The attacks in France have been worse than others. In their drive to outpace each other, the networks covering the events from time to time got ahead of themselves when looking at the histories of the dead criminals in the Paris attacks. The histories of those criminals had, we were told, made them ‘suspect.’ These histories were only in part in the open – the rest was the result of covert surveillance.

We could discern that there may be some shifts in public attitudes toward snooping on the communications if that snooping helps to prevent outrages such as those we have just seen, or to catch those who commit these crimes. For some bizarre reason I was reminded of my attitude to airline pilots a long time ago. I used to think that they were overpaid – but that thought always evaporated as soon as one of them had the job of lifting me and hundreds of others safely to the other side of the world.

Dealing with surveillance is one thing. Dealing with people who become ‘suspect’ as a result of that surveillance is something different. Under our idea of the rule of law, we do not deprive people of their liberty merely because they are suspected of having committed or of being about to commit a crime. It may be as well to look at how these questions are dealt with in states subjected to government by terror. The regimes of Stalin and Hitler were terrorist states. So was France for a period during the period of the French Revolution which erupted in 1789.

I have looked at those three regimes in the forthcoming book Terror and the Police State. On rereading the relevant chapter, it looks to me as if it has some bearing on some comments on recent terrorist attacks, and I set it out below. It does if nothing else give a warning of allowing terrorism in France now to allow us to be driven back to the laws of the Terror in France. The Law of Suspects was in some ways the low point of that Terror. It also is a warning about suspecting people or holding them liable just because of their creed.

Extracts from the opening chapter of the book giving terms of reference were posted here on 27 October 2014. An extract posted on 13 November gave a short history of the three regimes. Future posts will deal with terror and religion, surveillance and terror, and terror in France, Christianity, Israel and Islam.

A look back at history may provide an antidote to hysteria about the future.

*****

Extract from Terror and the Police State.

Chapter 14

Scapegoats, suspicion, and proof

In Ancient Greece there was a practice or rite of casting out someone like a beggar or cripple or criminal in the face of some natural threat or disaster. There are traces of a far older tradition in Syria when a goat would be invoked in the purification rites for the king’s wedding – a she-goat was driven out into the waste with a silver bell on her neck. More recently, but before the Greek custom developed, the Old Testament, Leviticus 16:8, said that ‘And Aaron shall cast lots over the two goats, one lot for the Lord and the other lot for Azazel.’ The goat of the Lord was sacrificed, and the high priest by confession transferred the sins of himself and the people to the goat that was permitted to escape in the wilderness – where its fate would depend on what sort of predators it may have to contend with. There was a form of atonement. The goat that escaped became the ‘scapegoat.’ The traditions or rites might be said to prefigure the role of the Son of God being offered up to redeem mankind by atoning for its sins. A scapegoat is one who is punished for the sins of others. This ancient Middle Eastern rite has become a universal custom involving people rather than goats.

But the term has got much wider than that – a scapegoat now is not just one that has to answer for the sins of others; it has to answer for all the problems and failings of what might be called the host people. So, in the most gruesome example, the Nazis held the Jews responsible for all the lesions on the German people, moral or economic. The war had been lost only because of the failings of some generals and because Socialists and Communists had stabbed the nation in the back. Once the German people got released from the hold of these forces of evil, it could realize its potential for the first time, and nothing could stand in its way. The German character was not just innately good – it was superior; therefore the reason for any failings had to be found elsewhere. The notion of scapegoat was vital to the perversion of what passed for thought under Hitler. It is the natural first base for a weak and insecure person who is a moral coward. It is also the kind of sloppy thinking that attracts insecure people, edgy commentators and journalists, and weak governments.

Scapegoats played a far smaller role in the French Revolution. Pitt’s gold – bribes from the British government led by Pitt – came to be a convenient source of all of the discontents of the people, and the aristocracy and church were loathed and attacked, but they had been principal pillars of the ancien regime that had failed and that was being rejected and replaced, and large parts of the aristocracy and of the church were opposed to those seeking to advance the objects of the Revolution. The émigré royals and nobles were a real and not just imagined threat, or one conjured up for the purposes of propaganda. The aristocracy was no more of a scapegoat than the clergy.

There were even reasons to fear the capacity of the inmates of prisons to harm the Revolution – the September Massacres in Paris in 1792 were manic and brutal, but they were not fashioned just out of malice. The driving force of the massacres was not from on high in the government, but in the mob in the form of the sections of the Commune of Paris. Even the killers in their panic or blood-lust felt the need to employ some form of trial in a quest to find the real threat to the nation – not just to the Revolution, but to the sovereignty of the nation. What we find it hard to follow is the relief felt and the welcome given to those who were spared or acquitted. There were elements of formality and benevolence in the brutal carnage that led David Andress in The Terror to say:

Prompt justice was done, with sound practical considerations in hand. That is the real horror. It is easy to come to terms with the idea of irrational carnage carried out by sadistic mobs: such facts fit neatly into the concept of a radically different, almost subhuman crowd, safely distanced from the self-image of the observer. Far less comfortable is the realization that bloody murder could be committed by upright citizens in the name of the country’s freedom. If we quite fairly object that the victims of September were not, in fact, the active partisans of a fatal plot gainst Paris, we must also agree that believing them so was a mistake shared almost unanimously everywhere from the Legislative Assembly to street-corner tavern.

If on that occasion the blue collar crowd, the sans-culottes, showed a need for some kind of procedural check on their enthusiasm, a big problem with what we would now call the political class is that they found it so hard to check their enthusiasm. They had not had enough experience of what we call party politics and political in-fighting to allow them to tolerate differences in points of view. You are either for us or against us; you have to decide; and you might lose your head if you decide the wrong way.

They were not experienced or mature enough to be able to put up with doubt or uncertainty on what they saw as matters of principle that they also saw as having nation-forming consequences. They were in a way the sad victims of the kind of political absolutism that they believed that they were escaping. If Flaubert said that inside every revolutionary you will find a policeman, it may because what you first find is an intolerant zealot – a fanatic. This is one reason that what we call faction fights were so lethal then. People getting together to oppose those in government were, almost by definition, conspiring against the nation. Division was bad in itself.

Nor does it make much sense to look for the role of scapegoats in the Russian Revolution. The convoluted theories of Marx would lead to serious differences of view upon implementation at the best of times. They were predicated on classes being in a conflict that was terminal, and the theories had an apocalyptic and prophetic air that commanded an adherence that was most devout among those who did not understand the theories – which meant most Communists, let alone Russians. To that you must had the cold egomania of Lenin, who hardly gave the theories a chance, and the manic paranoia of Stalin, who could not care less, and you see that it hardly helps us in our inquiries to ask if the kulaks may have been seen as scapegoats. The thinking that determined who might be targeted by regimes led by Lenin or Stalin – or, for that matter, Mr Putin – may be something that just passes our understanding.

A scapegoat may afford a kind of out for a regime, but suspects are at least a potential threat to it, at least ‘suspects’ in the terms that we are about to see. There is no reason why one person may not fulfil the criteria of more than one category. An aristocrat may have passed through a journey in time from being an enemy, to a threat, to a suspect, to a scapegoat. One of the infamies of Hitler was his treatment of the Jews as scapegoats. One of the darkest parts of the French Revolution is seen to be the Law of Suspects.

The Law of Suspects of 17 September 1793 is a model of concise drafting, but we sometimes find that the more concise a law is, the wider and the more unpredictable is its effect. Clause 1 said: ‘Immediately after the publication of the present decree, all suspected persons within the territory of the Republic and still at liberty shall be placed in custody.’ Clause 2 says who are ‘suspected persons’. Well, the class includes ‘partisans of tyranny or enemies of liberty’, ‘those to whom certificates of patriotism have been refused’ and ‘former nobles’ and their families ….who have not steadily manifested their devotion to the Revolution’. That is to say – anybody that somebody in power does not like the look of. It is hard to imagine a more complete ‘enemy of liberty’ than the author of this law. The law does not say if these people are guilty of any offence, or how they are to be dealt with if they are – it just says that they shall be detained, at their expense, ‘until the peace’.

The French pride themselves on the economy and style of their drafting. Flaubert used to read some of the Code Napoleon each day to warm up on for his writing. (It is impossible for a common lawyer to imagine anyone doing that with any statute ever made anywhere.) The legal drafting during the Revolution may not have received the time and polish of later documents, but it was not long-winded. Most of the decrees are short and to the point and look like they might be addressed to issues of the management of a petanque club.

Clause 3 provided that each Watch (Surveillance) Committee (known as the Revolutionary Committee) is charged with drafting for each arrondisement ‘a list of suspected persons’, and issuing warrants of arrest against them, and having seals put on their papers. The ‘commanders of the public force’ receiving such a warrant must execute the warrant and arrest the suspect immediately. Clause 4 says a committee can only order an arrest if at least seven are present, and by an absolute majority. Clause 5 says that they are to be taken first to the local jail and then, under clause 6, transferred to national buildings. Clause 7 allows the prisoners to have their absolutely essential belongings, and says that ‘they shall remain there until the peace’ (which is not defined). By clause 8, the prisoners have to bear the expense of their custody. Under Clause 9 the Committee must give a list of arrested suspects to the Committee of General Security. Clause 11 allows courts to have detained in jail those who are acquitted before them – this clause makes no express reference to such a person being ‘suspect’. That is the whole law.

Like the decree about the Revolutionary Tribunal, this decree does not say that certain acts are criminal (against the law) – rather it just empowers some people to take some action against some other people without the intervention of a court. But what is clear is that if you had been refused your Civic Card – and we saw what the Paris Commune said about this – or if your Committee did not think that you had steadily manifested your devotion to the Revolution, they could cause you to be arrested and be held in prison indefinitely – without any charge having been made or even any breach of the law alleged; without any evidence having been required, collected, or tendered against the target; and without any intervention from any kind of judicial officer whatsoever. And all at the expense of the victim.

You would for example risk being suspected and therefore arrested and held indefinitely if you called someone vous or monsieur – even though that form of address was the spontaneous habit of a lifetime formed in a customary exhibition of courtesy throughout all classes in all of France.

There is nothing in the law that says that a suspect may be executed or otherwise punished for a breach of the law – it merely says that one class of persons may be detained for the duration, or until the peace. Some historians have believed that your being a suspect might of itself have led to the guillotine – this may have been so in fact, but not because of this law. It is not at all uncommon to find a law permitting a government to detain certain kinds of persons in a nation at war. During World War II, Britain did this with citizens of German descent, and the US did it with those of Japanese descent. These are called internment laws. Even Abraham Lincoln suspended habeas corpus for the duration of the American Civil War.

In England during World War II, there was a famous exchange on England’s highest court, the House of Lords, about a wartime regulation that gave the Secretary of State the power to detain a person if he had ‘reasonable cause’ to believe that person had ‘hostile associations’. If this issue should come before a court, say on a writ of habeas corpus, should the court conclude that it must be satisfied of the ‘reasonable cause,’ or was it sufficient for the Home Secretary to say that he believed that he had reasonable cause? The majority thought that a wartime emergency provision should be applied to make it effective rather than to have it weighed down with fine legal argument. They were also sensitive that they as judges may not have had access to security information gained as part of the war effort. They accepted the submission of the government and held that the opinion of the Home Secretary was enough.

Even at the height of the war, the case caused headlines by the terms of the dissent of a very famous judge named Lord Atkin. He objected to a ‘strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister’. He went on to say:

In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.His Lordship went on to say that he knew of only one authority to justify the reasoning of the majority – and he referred to the colloquy between Alice and Humpty Dumpty in Alice in Wonderland. This remark offended the majority, but not as much as his remark that ‘in this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I’.

Lord Atkin’s reasoning commands general acceptance today, but sensible courts make allowances for decisions taken in extreme emergency, which England plainly was when the man called Liversidge was detained, and also about the need for judges to show some respect for the separation of powers where the executive appears to be acting bona fide in issues involving security and intelligence during wartime.

But although the French law did not of itself lead people to the guillotine, and most of those detained under this law survived the Terror, its impact was huge. More than fifty places of detention were established in Paris alone within a few months. If the inmates wanted a bed, and not just a pile of straw, they had to pay. Within a short time there were about seven thousand detained in Paris, and the number for all France would rise to about 300,000. Many must have lived in fear of an outbreak of another lot of prison massacres like the September Massacres. Simon Schama painted a dark picture.

Even by the standards of the time, the Conciergerie was a wretched hole, a place which managed to engender phenomenal squalor within imposing architectural precincts (for it too was a former princely residence)…..many of the prisoners compared it to the lower circles of Dante’s Inferno, a house of vermin, smelling of sickness and ordure…..the vast majority slept a la paille, on straw, in tiny cachots, deprived of air and water, with no place to relieve themselves except the floor. After a while, prisoners ceased to care, sleeping by and in their own excrement, covered with lice and open sores. To vary the routine, they could walk together under the ogival vaults of the long sombre corridor known as the ‘rue de Paris’, watch the scuttle of rats and exchange gossip about the latest admissions.

 

So, in looking at Law of Suspects, we need to remember that it was an emergency measure relating to internment during and for the duration of the then equivalent of a world war that saw most of Europe intent on overthrowing the government of the French nation and assisting in the setting up of a replacement government that was almost certainly contrary to the wishes of a clear majority of the French people. Another thing to remember is that this kind of wartime measure may run across general notions of due process or civil liberties in ways that might fairly become the subject of reasonable differences of opinion between fair minded people. It is not reasonably open to express any such reservation about any similar measures taken as part of the terror in Russia or Germany.

Nor is there much point in talking about onus of proof. That notion is hardly determinative if lay people are asking whether they ‘suspect’ someone within the terms of the relevant law. If someone was charged with an offence, then under the general French law, those bringing the charge had to prove facts sufficient to found a finding of guilt. That was the theory, but the practice was different – for the most part, there was a kind of presumption of guilt rather than innocence, and a kind of onus fell on the prisoner to ‘beat the charge.’ There was a sense that the prosecutor, judge, and jury were all on the same team, and someone on the outer had real trouble getting back into safety.

If the Law of Suspects could not of itself lead to the guillotine, what did? Even now, a charge of conspiracy in many jurisdictions signifies that those behind the prosecution cannot produce hard evidence of a clear breach of the criminal law, and there are what might be called forensic advantages for the prosecution in following such a course. Good judges now tend to be skeptical of this kind of process, and some are not shy to say so. Well, if nothing else, Robespierre knew all about conspiracies, and the more time went on, the more he was inclined to see one. As early as 1790, the press had commented on his repeated references to ‘plots and conspiracies of which he alone held the secret’, but it took years for the boy who cried ‘Wolf’ to be called out.

The English historian the Reverend J M Thompson of Oxford University was very far from being down on Robespierre, and his assessments are balanced and well informed. In his little book Robespierre and the French Revolution, Mr Thompson made these remarks in the context of prosecutions of enemies of the Revolution:

His method was to construct from the speeches or publications of individuals or from the company they kept a common programme or policy, of which perhaps none of them was personally conscious, and to father it on them all. Thus when they were put on trial each found himself involved in vague charges, based on a casual word here, a conversation overheard there, or a piece of gossip started by some spiteful neighbour – charges which it was useless to disprove in detail, and which in their accumulated effect were fatal.

On what was a kind show trial for the followers of Hebert, Thompson went on:

Between their arrest and trial he [Robespierre] made several speeches denouncing the prisoners, and informing the public that, as soon as the Extremists had been dealt with, the Government would turn its attention to the Reactionaries. There was in fact no trial in our sense of the term, but merely an indictment of persons who must be guilty because the Government had decided that they were: the salaried judges and jury would give their assassination an appearance of legality, and the crowd could be trusted to applaud their execution. Such is the technique of dictatorship.

Those propositions have the odor of truth or, if you prefer, reality, and the methods described have a ghastly resemblance to those used in the Moscow Show Trials in the 1930’s.

Robespierre’s lieutenant in enforcing the terror was a cold, heartless young lawyer and ideologue named Saint-Just. Saint-Just had the blood of Lenin in his veins. He said that ‘we must rule by iron those who cannot be ruled by justice. You must punish not merely traitors but the indifferent as well’. A colleague on the Committee of Public Safety, the crippled Couthon, was fond of asking: ‘What have you done to merit being hanged if the counter-revolution comes?’ Saint-Just was called ‘the angel of death’. The execution was referred to as the ‘Red Mass’, ‘spitting in the sack’, or ‘peeping through the window’. The presumption of innocence was as good as reversed. Robespierre said: ‘Whosoever trembles at this moment is also guilty.’ He had also added ‘trial by conscience’ – an intuitive decision rather than a reasonable one; the accused could be convicted for attitude as well as actions. How Rousseau would have applauded! In one speech, Robespierre gave the essence of paranoia – ‘Look about you. Share my fear, and consider how all now wear the same mask of patriotism.’ The good looked just the same as the bad.

Saint-Just said that ‘the very resistance of these scoundrels proves their guilt’. Couthon said ‘moral proof’ was enough – ‘for a citizen to become suspect, it is sufficient that rumour accuses him’. When the prosecutor said that there was not enough evidence to convict all of the Cordeliers, Saint-Just gave a short response – ‘Amalgamate’. Take them as a job lot.

We can trace a line of conspiracy allegations. Camille Desmoulins took exception to what Brissot had said in his propaganda journal, Le Patriote fancais, and he wrote an article in reply attacking Brissot for defending gambling – Desmoulins thought that Brissot was not a true patriot on that account. He went further and called him a traitor. Fifteen months later, Desmoulins launched a more comprehensive attack, The History of the Brissotins. He now alleged conspiracy and Brissot was expelled from the Jacobins. He had the ultimate answer of the ultimate conspiracy theorist from Brissot himself: ‘It is absurd to ask for hard evidence and judicial proofs that one has never had. Not even in the conspiracy of Catiline, for conspirators have never been in the habit of letting evidence against themselves be open to discovery.’ The less evidence there was, the deeper the conspiracy had to be! Desmoulins raked over all their record – and if you look at history in a certain way, it may tell you want you want to hear.

Desmoulins then claimed to be shocked when the charges of conspiracy that came to be laid before the Revolutionary Tribunal relied so much on his work. Then some of the Brissotins fled, and even Saint-Just would have spared some: ‘You must distinguish between those detained; most were misled; and who among us can flatter himself that he was never deceived? The true culprits are those who fled…..Proscribe them not for what they said but for what they did; pass judgment on the others and pardon the greater number.’

When it came time to judge Desmoulins, Saint Just was more than happy to judge the accused for what he had said, and there was none of that softness about people being deceived.

These people, who for four years have conspired under the veil of patriotism, now that justice is closing in on them repeat the words of Vergniaud [a Brissotin]: The Revolution is like Saturn, it will devour its own children. Hebert repeated these words during his trial; they are repeated by all those who tremble as they see themselves unmasked.

Saint-Just would be one of the last children of the Revolution to be devoured. He did not tremble; but neither was he heard in his defence. The republicans loved invoking Rome, and Cicero, especially Camille Desmoulins. Catiline was a bad politician and a worse leader whose hair-brained conspiracy was almost suicidal. In one of the few decisions of substance that Cicero took, Catiline’ s supporters were executed without trial – something that even Julius Caesar thought was a little strong.

As time went on, hardly anyone beat the charge. The process became so much more formal and peremptory. People were dealt with in batches – the charges were ‘amalgamated’, a favourite technique of Saint-Just, and toward the end the prosecutor could invite the jury to say that they had heard enough to satisfy their consciences. Paris looked like a lynch mob hungry for prey.

We have seen that under the Law of Suspects, an accused person who did beat a charge could still be detained under that law, and that was certainly a course open to the NKVD or Gestapo in the very rare cases where the prosecution simply failed. The whole purpose of the revolutionary or peoples’ tribunals was to stop that kind of accident happening. Civilized legal systems say that it is better that some guilty go free rather than that one innocent person should be imprisoned; the revolutionary regime or police state takes the very opposite view – and the very words ‘innocent’ and ‘guilty’ had very different meanings for those enforcing what purported to be the laws of such regimes.

When Benjamin Constant asked who had not been denounced since 14 July 1789, he went on: ‘After seeing Bailly and Pache, La Rouchefoucald and Marat, Condorcet and Saint-Just, Sieyês and Robespierre become the targets of the same accusations, can one still believe in Revolutionary reputations?’ It is a fair question. It had got to the point where it looked like the revolution was the source of its own conspiracies. For every action there would be a reaction. Suppressing one plot led to others. There was a cycle of vendettas, witch-hunts and pogroms, and people settled personal scores in the name of a political objective. In the words ‘Share my fear, and consider how all now wear the same mask of patriotism’, we come close to heart of the three regimes looked at in this book.

In The Russian Revolution, Sheilah Fitzpatrick said this:

Suspicion of enemies – in the pay of foreign powers, involved in constant conspiracies to destroy the revolution and inflict misery on the people is a standard feature of the revolutionary mentality that Thomas Carlyle captured vividly in the passage on the Jacobin Terror of 1794…..In normal circumstances, people reject the idea that it is better that ten innocent men perish than that one guilty man go free; in the abnormal circumstances of revolution, they often accept it. Prominence is no guarantee of security in revolutions; rather the contrary. That the Great Purges uncovered so many ‘enemies’ in the guise of revolutionary leaders should come as no surprise to students of the French Revolution.

After all, the French have a saying: Plus ca change, plus c’est la meme chose.