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Archive for the ‘Britain’ Category

Paul H. Fry on “Post-Colonial Criticism”

In Arts & Letters, Books, Britain, British Literature, Eastern Civilizaton, Fiction, Historicism, History, Humanities, Law, Literary Theory & Criticism, Literature, Novels, Pedagogy, Philosophy, Politics, Rhetoric, Scholarship, Semiotics, Teaching, The Novel, Western Civilization, Western Philosophy on February 24, 2016 at 8:45 am

Below is the next installment in the lecture series on literary theory and criticism by Paul H. Fry. The previous lectures are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.

 

Excerpt from “I am the Raleigh,” Part II, by F. L. Light

In Arts & Letters, Britain, British Literature, Creative Writing, Fiction, History, Humanities, Law, Literature, Poetry, Writing on February 3, 2016 at 8:45 am

Fred Light

A Shakespearean proficiency in meter and rhetoric may to F L Light be ascribed. Nearly forty of his dramas are now available on Amazon, and twenty have been produced for Audible. His Gouldium is a series of twenty four dramas on the life and times of Jay Gould which he followed with six plays on Henry Clay Frick. The whole first book of his translation of The Iliad was published serially in Sonnetto Poesia. He has also appeared in Classical Outlook and The Raintown Review. Most of his thirty five books of couplets are on economics, such as Shakespeare Versus Keynes and Upwards to Emptiness the State Expands.

The clerk has recited an affidavit by Lord Cobham, in which he blames Raleigh for the Main Plot. William Watson, a priest, was the chief inciter of the Bye Plot. Lord Popham is the presiding justice at this trial.

Raleigh, to deliver himself from Tyburn, where traitors were executed, holds forth as far as he can.

Raleigh: Now, candid jurymen, conduct yourselves
By equitable accuracy, measuring
Each side. Coke’s imputational omnipotence
In wholeness of assertion is in this
Pretentious affirmation put. He calls
This version evidential verity.
This either quails me or discomfiture undoes;
Either absolves my sufferance or means
In absolute privation my demise;
Either exalted exculpation offers
Or vagrant indigence provides my wife
And children. This may manifest a traitor
Or a devout trustee defectless to
His king. But let me see this testament
That I may answer with defensive doubt.

Popham: Sir Walter Raleigh may examine it.

Raleigh: A wakeful answer, vital likelihood
Providing, should evoke intelligence
In you. How Cobham, the accuser, came
To say this I’ll profess. The Privy Council would
With perceant queries penetrate if Cobham
And myself combined for Aremberg’s conditions
Or of the deadly priestliness in Watson were
Apprised or whether plotted discipline,
Designed for Lady Arabella, we
Suspected. Guiltless verities I gave
The Privy Council, in pronouncement free
From priests and clear of plots. But soon, when I
Came home, I wrote to Henry Lord Cobham how
I wondered whether Aremberg advised him,
Who years ago in Flanders with that Count
Conferred. And twice that summer, having supped
With us at Durham House, Lord Cobham could
Be seen into LaRenzi’s place advance,
Who is a scribal henchman of that Count.
This news was in my letter sent. But I
Was told by Robert Cecil not to speak
Of this because King James would not offend
The Count. So when Sir Robert showed this letter
To Lord Cobham, a combustion of defense
Possessed him. With inflamed recrimination
He flared against me, caustic charges in
His shouts concerting. But he ceased, incensed
No longer, blame renouncing as mere blab,
Who then assured Sir Robert to absolve me.
A circumstantial stretch you made of this,
Master Attorney, that Lord Cobham lacked
Inductive likelihood, a dunce belike
Mistaking him. But never infantile
Inertia shows him nerveless, who asserts
In settled firmness his sententious will.
Impassioned suppositions he pursues,
Disposed to see his purposes dispatched.
And now, forbearing sanity, you say
In your absurd acuity I would plot
With him, a man of unbefriended chariness
And unattractive thrift, with him when I
Resigned perforce the Cornwall Wardenship
Of Stannaries and was enforced to do
Laborious dispossession of my rights?
My lords, eccentric ignorance I have
Not nurtured. This monarchal island I
Perceived was never so defensible,
With Scotland a united fortress having.
All Ireland has relinquished enmity,
Not breaching acquiescence north or south.
Denmark accords, negating her excess
By sea, provoking jealousy for cod
No longer. Now the plainest Netherlands,
Resemblant neighbors to our realm, at peace
Remain. And here, no dubious hesitations in
A Queen we suffer, she whom time surprised
And age suppressed, for now a forward king
Advances our attention to demands,
Who may by rightful coronation reign.

Popham: Come, sir, digressive hesitations cease
In court.

Raleigh: Lord Popham, on the pointed mark
I’d realize accuracy in the court,
With equitable pertinence conveyed.
Now I unwarranted discomfiture
Would never bear and undeserved absurdities
Would hear no more. A devil-headed raver,
England’s secured circumference assailing,
They say I am, the basest Robin Hood of hell,
Or a Wat Tyler warrior taking arms
Or like Jack Cade to jounce the uppermost
Security of kings. But now the penniless defaults
Of Spain I know, where impecunious nothingness
Abounds, in moneyless exorbitance
Unfit for war. Discouraged sentiments
Deny King Philip all belligerent
Regards for England. Have we not six times
Distracted him, in Ireland thrice triumphant
And in naval valor never failing thrice,
Even at Cadiz to devastate his coast.
As Captain for the Queen four thousand pounds
Of substance from myself I’ve spent in war,
Three prevalent events procuring while
You slept in peace. Now six or seven ships
In ports remain for Philip, a diminishment
Of fifty sails, who alien argosies
Must hire for the Columbus lands. No more
By thirty million crowns he weighs himself,
In overspent expansiveness expiring.
The neediest royalty in Europe now
Denies the Jesuits monetary grace,
All miscreant mendicants to make of them.
The lowest of inverted lordliness
He is, by meekest reconcilement now
With England to abide, who in devout
Felicitations at the recent crowning
Rejoiced complaisance to our king avowed.
Therefore in Spanish hardship would this prince
Six hundred thousand to an Englishman
Deliver without pledged securities
Or gaged collateral in pawn? When Queen
Elizabeth to her allies in Holland lent
Profusely, liens on Brill and Flushing she
Obtained. Dieppe no less she had in pawn
When France had borrowed from her purse a sum
For battles. And assure you, many goldsmith
Moneyers in London would not lend to her
Without avouched collateral in land.
Then say, my lords, what costly likelihood
For six hundred thousand could myself
Or Cobham give in pledge to Spain, myself
By meanest deprivation out of place?
As paroxysmal as appassionate,
The hottest exemplarity in hate
Of Spain I’ve shown. Would I betray my own
Biography? Would I upturn the tenor
Uppermost in me? I am the Raleigh,
English royalty fending from the Pope.
I am the Raleigh, anglophilic rectitude
Presenting, protestant heroics fain
To prove. I am the anti-papal archetype
Of England. Untransmutable antipathy
To Spain defines me. Read Guiana. Read
My Treatise on the Force of Spain in Flanders,
Which to his Majesty I gave, if he’d
Consult a warrior.

Excerpt from “I am the Raleigh,” by F. L. Light

In Arts & Letters, Britain, British Literature, Criminal Law, Fiction, History, Humanities, Law, Literature, Theatre, Writing on December 9, 2015 at 8:45 am

Fred Light

A Shakespearean proficiency in meter and rhetoric may to F L Light be ascribed. Nearly forty of his dramas are now available on Amazon, and twenty have been produced for Audible. His Gouldium is a series of twenty four dramas on the life and times of Jay Gould which he followed with six plays on Henry Clay Frick. The whole first book of his translation of The Iliad was published serially in Sonnetto Poesia. He has also appeared in Classical Outlook and The Raintown Review. Most of his thirty five books of couplets are on economics, such as Shakespeare Versus Keynes and Upwards to Emptiness the State Expands.

In November, 1603, Sir Walter Raleigh was for treason put on trial. Those charged with treason were not allowed lawyers. The prosecutor is Edward Coke, Attorney General of England.

Wolvesley Castle in Winchester, where the chief judicial officers of England and many peers of the realm are gathered. Sergeant at Arms Yelverton comes forth.

Yelverton: You English, conscientious quietude
Abide. In mutest comprehension mark This Court. Let your acuity be quieted,
Judicious silence in this cause permitting. Now let the Keeper here at Castle Wolvesley
Conduct the prisoner, Sir Walter Raleigh,
Into the court.

Raleigh is ushered into the court by the Keeper.

Popham: Name the commissioned magistrates
For watchful jurisdiction of this court.

Yelverton: Yourself, the Lord Chief Justice, Master Justice
Gawdie, Master Justice Warburton, Robert
Lord Cecil, Edward Lord Wotton of Morley,
And Henry Lord Howard.

Popham:                          What is the professed
Indictment, Sergeant Yelverton?

Yelverton:                                  It is
Alleged Sir Walter Raleigh in comprised
Inclusion with a clique conceived
And counseled a conspiracy, resolved
The presence of the King be done away,
With common dispossession of the King’s
Propriety; and he, considering seditious seizures
Of the state, by factious infestations would
Revolt effect, who’d raise mutations in
Religion, irreligious primacy
In England prompting, and who’d summon to
This island the amassed misanthropy
Of Spain at arms or an invasive sway
From Scotland. It is further stated that
Lord Henry Cobham met at Durham House
On June the Ninth with Raleigh to procure
For Arabella Stuart the crown of England.
There Raleigh readied the corruption of
Lord Cobham, bidding him confer with Charles
De Ligne, the Count of Aremberg, to draw
Six hundred thousand crowns from him, a sum
For Arabella’s royalty by revolt.
Above this, should Aremberg’s superior,
The Archduke Albert of the Netherlands,
Not have that sum, then to the king of Spain
Should Cobham pass; that Arabella should
In written briefs to Albert and King Philip
And even Savoy’s enthroned administration
Pledge a constant reconcilement held
By London and Madrid, and she must swear
The Papacy’s adherents may persist
In alien ritual of un-English use,
And that her marriage be imagined, moved
And warranted by Philip of Madrid.
And this declarative indictment claims
That Cobham on that ninth of June apprised
George Brooke, his brother, of these plots, assured
Of sibling likelihood therein. And said
That England never glows with lucre till
All Jacobean propagations be
Undone with James, the cubs and bear together;
That a book was lent to Cobham, drawn
From Raleigh’s shelves, purporting that the king
No ancestral validation could assume
For kingship in this realm; that Cobham on
The seventeenth of June then messaged Aremberg
For money with LaRenzi as the messenger;
That on the next day Count Aremberg agreed
Upon six hundred thousand as the sum,
Whereof eight thousand were for Raleigh’s use,
And ten thousand would George Brooke receive.
At these outstanding imputations what
Is your plea?

Raleigh:      Not guilty, and I’ll put myself
Upon the country’s jurisdiction, fain
A jury of my peers may pass on me.

Yelverton: Would you assert a challenge to remove
Or question any jurors?

Raleigh:                          None of them
I know, but, as I sense appearances,
Forthright discrimination and direct
Discretion cannot be denied in them.
Faces of normal reason I regard
Among them, not afraid their rectitude
Will jar with mine. And as I know my plea
Is stainless, let this panel stand. I may
In confident indifference suffer them.
Yet here one wish you may accept as meet.
For you should know intense infirmities
Of late my readiness impair and leave
My memory faint. And thus the itemized
Indictment I would touch on and deny
By individual severalties, as they
Before the court come forth, or else I’ll not
Retain them till at last I may reply.

Coke: The evidential whole is stronger than
Her parts, and overwrought distinctions may
Disintegrate the rightful fullness we’ve
Embodied in this case. Distinguished parts,
When overstretched, constrained distortions put
Before us.

Raleigh:     Undivided evidence
Can hardly be reviewed by a refuter.

Popham: Let the defendant with each single charge
Contend in sequence. By the common law
Judicial consummations come of parts.

 

Balance and Imbalance in E.M. Forster’s A Passage to India

In Arts & Letters, Books, Britain, British Literature, E.M. Forster, Eastern Civilizaton, Fiction, History, Humanities, Jurisprudence, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Modernism, Western Civilization on November 11, 2015 at 8:45 am

Allen 2

E.M. Forster’s A Passage to India is in many ways about losing balance. Characters like Turton, Fielding, and Mrs. Moore represent centers of gravity, fixed between competing tensions and antagonistic binaries: reason and emotion, Indian and British, human and animal.

Situated between the nested oppositions, Turton, Fielding and Mrs. Moore denote compromised identity, the reconcilability of two cultures; as middle-markers they refuse rigid categorization and maintain symmetry in power relations. Instead of opening channels of communication and understanding, however, their mediating presence has tragic results: Turton goes crazy, Fielding loses hope and Mrs. Moore dies. These characters are necessary as fulcra; but when they align themselves with one binary or leave India altogether, they trouble the balance and stability of society writ large.

In a strictly separatist microcosm, they occupy the geometric center. When their positions shift, equilibrium breaks down: society becomes a mass of madness. The only go-between characters in the novel are English, suggesting that the story is a mirror held up to placate white guilt.

The demise of these characters in particular, and of Anglo-Indian relations generally, turns on the overarching, structural antinomy between reason and emotion that comes to a head during the abortive kangaroo trial. An interrogation of this antinomy and its collapse into muddledom reveals how law and justice in Chandrapore bear a systematic and determinative relation to race and gender.

The above text is adapted from an excerpt of my essay “‘Mass of Madness’: Jurisprudence in E.M. Forster’s A Passage to India,” published in Modernist Cultures, Vol. 6, No. 2 (2011). To view the full essay, you may download it here at SSRN or visit the website of Modernist Cultures.

“Raleigh and Spenser, 1580,” by F L Light

In Arts & Letters, Britain, British Literature, Creative Writing, History, Humanities, Literature, Writing on September 23, 2015 at 8:45 am

Fred Light

A Shakespearean proficiency in meter and rhetoric may to F L Light be ascribed. Nearly forty of his dramas are now available on Amazon, and twenty have been produced for Audible. His Gouldium is a series of twenty four dramas on the life and times of Jay Gould which he followed with six plays on Henry Clay Frick. The whole first book of his translation of The Iliad was published serially in Sonnetto Poesia. He has also appeared in Classical Outlook and The Raintown Review. Most of his thirty five books of couplets are on economics, such as Shakespeare Versus Keynes and Upwards to Emptiness the State Expands.

This scene (from a work in progress) occurs after the Battle of Glenmalure in County Wicklow, Ireland, where the English suffered a strong defeat. Edmund Spenser was secretary to Lord Grey, the English general at that battle. Raleigh and Spenser were later to become neighbors in Munster. Spenser had vexed Queen Elizabeth when he sought to dissuade her from marriage to the Duke of Alençon in The Shepherds’ Calendar.

Dublin Castle. Enter Sir Walter Raleigh and Edmund Spenser.

Raleigh: The Phoenix re-inflames herself to stand
Alive. Like her we can re-spring ourselves
And spread our advents forth. Re-mustered loyalty
Can be enlarged. In multiplied aggression
We may go forth erelong. They’ve not undone
Regeneration nor defeated fatherly
Revival of our cause. In myriad dominance
Amain we’ll march again and recommence
Composure in this land. Colonial neighborhoods
Of Perikles in fertilized profundity
May lettered conscientiousness assert.
This island of untutored emptiness
Oxonian literacy should accept
Or Cantabrigian dogma comprehend.
No feudal diffidence in reason nor
Despotic fairyland we Englishmen
Profess. The fairest possibilities
Of free endeavors should in husbandry
Not pall on Ireland.

Spenser: If recoveries
Refresh mortality for us, then all
Of Desmond’s Munster is dispropertied
And shall in efficacious forfeiture
To Lord Grey’s officers be meted out.

Raleigh: Incentive victory therefore may as
The greediest of attainments comfort us.
Now for the landed fortune of a lord
I’d follow my triumphant appetite
And trust emotional inclemency
For gain.

Spenser: A magnate’s animosity
For main extents you mean, in deep intent
On money.

Raleigh: Gainful joyance is no jape
For me. To my increaseful happiness,
Disposed like Croesus, I would magnify
My dirt.

Spenser: The fertile presence of your voice
In Munster would immortal lucre breed.
But the uncivilized delusions seen
Among the people there no peaceable
Facilities permit.

Raleigh: That profit is
The flow where life proceeds in grace the folk
Of Ireland will perceive. Your fluency,
In clarion inculcation, should be clear
Enough for that. Unguarded politics
Allow the Queen. You should political
Decorum to consultants in the court
Concede. On lucrative georgics, not
Upon her Majesty’s conclusiveness
In marriage, should your verses touch.

Spenser: Therefore
On spacious tilth for capital I should,
Sir Walter, songful eloquence enlarge?

Raleigh: I say proprietary sapience may
The most unsoftened pulchritude confirm
In poetry. The unmitigated tone
Of merchantry for English metre would
Be fit. Commercial intonations may
The strongest likelihood for music hold.
Singing your sagaciousness on seeds
For money, you would planters multiply
For Munster’s plenitude of various means.

Spenser: Now that convulsive wilderness consumedly
Has waned. Delinquent emptiness is left
In Munster, where abandoned decadence
Abides in death. Of starved disorder few
Survive. The naked likelihood of misery
Upon fulfilled oppression is avowed.
Now warfare to inflammable extremes,
Infesting Ireland, intervenient fire
On Desmond’s land inflicts.

Raleigh: But after war
The inflammation of vitality
We shall for savant juvenescence light
In Ireland. Verdant exploitation I’d
Advise and greenest diligence for growth.

Scene from “A Trial of Recognition,” by F L Light

In Arts & Letters, Britain, British Literature, Creative Writing, Fiction, History, Humanities, Law, Literature, Shakespeare on September 16, 2015 at 8:45 am

Fred Light

A Shakespearean proficiency in meter and rhetoric may to F L Light be ascribed. Nearly forty of his dramas are now available on Amazon, and twenty have been produced for Audible. His Gouldium is a series of twenty four dramas on the life and times of Jay Gould which he followed with six plays on Henry Clay Frick. The whole first book of his translation of The Iliad was published serially in Sonnetto Poesia. He has also appeared in Classical Outlook and The Raintown Review. Most of his thirty five books of couplets are on economics, such as Shakespeare Versus Keynes and Upwards to Emptiness the State Expands.

The Earls of Essex and Southampton are tried together for High Treason before a jury of the noblest peers. Pleading not guilty, they strive in angry and arrant disputation with Attorney General Edward Coke and Francis Bacon. This drama is the third part of an Aeschylean trilogy and maintains the classical form of tragedy in English with seven scenes of dialogue and seven choral performances.

This trial was conducted in Westminster Hall, February 19th, 1601.

Yelverton: Now the Attorney General will speak.

Coke: My lords of courtly justice, chief pronouncers
And primest fathers of preceptive law,
Treason unsettles what is set by God.
Thrones of established exaltation it
Would overthrow. The firmest Tudor fundament
Upon immediate evanescence fades
To nothing should betrayal triumph, come
Upon premeditated compassments
Of power. Therefore to think projected thoughts
Of treason, all in violent mindfulness
For power, is death. And he that strides against
The realm, with royalty striving, must be judged
By the intent transgression of his thought.
Whoever is at arms in his array
Of might amid a kingdomed commonwealth
Founded on authentic ancestry,
Cannot be suffered by the law, perceived
As lawless as usurpers are.

Essex: But sir,
No duke would a defenseless dukedom in
This realm maintain. No helpless earldom would
An earl endure. Their settlements are set
Apart from central pertinence in Whitehall.
By vassalled mightiness they serve the main.
And undefended danger I would not
Support, assured that Lord Grey or Sir Walter Raleigh
Were raising homicides against me. Thus
I am no traitor, here a man traduced
For his defensive force.

Coke: You say, my lord,
In a protective insurrection you
Arose, forfending murder by revolt,
Who would insurgently secure yourself.
But all rebels would dissemble their revolt
Or revocation of regimes. Lord Darcy,
That traitor in the Pilgrimage of Grace,
By wrongful reprobation Thomas Cromwell
Blamed for his rebellion, that he feared
The King’s chief minister would murder him.
And like yourself Sir Thomas Wyatt to check
The Spanish from an English crown presumed
At arms his Protestant resolve, who drew
A proditory rise upon the realm.
But as a culpable defendant he
Was put to death. A guiltier prisoner
Than Wyatt you are who by her Majesty
The loftiest rooms of favor were allowed,
Made Master of the Horse at twenty two,
Admitted to the Privy Council then.
Soon as Earl Marshal of the realm you were
Preferred, and for Cadiz were given high
Command, and by her Majesty’s regard
The Azores’ were your charge. And higher yet
For Lord Lieutenant and Governor of Ireland
Her Majesty’s commission you received.
Beyond this, you had bounteous delectation
In her gifts to you, deemed more than thirty
Thousand pounds in favor. But you for pride
And inconsiderate presumption thanklessly
Repressed your memories of wealth. No man
A more ungrateful appetite, when fed
With grace, could manifest than you, who’d by
The kingliest insatiety consume
Yourself, your loyalty, and your liege. All this
Concerns her Majesty, against whose throne
Your rising throbbed. And though no Britishman
Without applause can of her Majesty’s
Protective justice speak, I must remark
That overmeasured mercy by the Queen
Will bring unmerciful exorbitance
On her. For though inhuman disobedience
Would have disabled England, yet no man
Howso wayward ever, violent ever,
Was crossly racked or tortured overthwart
For his confession. Most of them would make
Their conscientious peace with God. The truth
Came forth with faithful certitude in God,
As true religion can relinquish enmity.
Accordant attestations they conveyed,
Though sifted severally.

Essex: Now your unsifted speech
I’ve suffered, Master Coke, at culpable
Traducements kept before you, by confined
Civility not answering forthwith
The guiltiest allegations laid on me.
With insurrectional salvation might
The realm be saved from priestly sinfulness
Of blameful priests who’d stupefaction stress.

“Winston Churchill and the American Civil War,” by Miles Smith IV

In American History, Arts & Letters, Books, Britain, Conservatism, Economics, Essays, History, Humanities, Libertarianism, Nineteenth-Century America, Slavery, Southern History, The South on February 4, 2015 at 8:45 am

Miles Smith

Miles Smith IV is a visiting assistant professor at Hillsdale College and a historian of the Old South and Atlantic World. He took his B.A. from the College of Charleston and holds a Ph.D. in History from Texas Christian University. He is a native of Salisbury, North Carolina.

Last week saw the alignment of a peculiar set of anniversaries: The Fiftieth anniversary of Churchill’s death, the seventieth of the liberation of Auschwitz by the Soviet Army, and the 208th birthday anniversary of Robert E. Lee. Sir Winston Leonard Spencer-Churchill died in 1965. One century earlier General Robert E. Lee surrendered the Army of Northern Virginia to his Federal counterpart U.S. Grant. Churchill and Lee enjoyed widespread acclaim for their conduct—Lee in the late nineteenth and both he and Churchill in the latter half of the twentieth century. In recent years deconstructing both men enjoyed being the vogue of both academic and popular commentators. Both Churchill and Lee lived their lives as traditionalists. Neither embraced the social or moral innovation of their own eras. Modern commentators degrade both for their seemingly reactionary ideals. Unsurprisingly, Churchill adored Lee (and Abraham Lincoln as well). A recent historian opined that Lee’s “tragic flaw” was that he upheld the genteel values of eighteenth century Virginia “in a society that left older ideals of nobility and privilege behind.” One might grant that Lee’s aristocratic and heavy-handed slaveholding would understandably guarantee him a fair share of detractors in the early twentieth century, but this commentator offered as his reason for deconstructing Lee a calamitous rationale:

In the long run, Lee’s decision to follow Virginia out of the Union and resign his commission from the US Army further reveals his eighteenth century sensibilities which emphasize state over country and a parochial interest in defending home and family rather than one’s nation. In choosing loyalty to his state over loyalty to his country, Lee ensured that his destiny would be tainted by defeat and the specter of treason.

The disturbing notion that one’s parochial interest in defending his home and family constitutes a “fatal flaw” ultimately saw its hellish culmination in the totalitarian nationalist regimes of the twentieth century. It was Lee’s very cultured localism, tragically tinged as it was with slaveholding, that endeared him to Winston Churchill.[1]

Before Winston Churchill assumed the premiership of the United Kingdom and before he battled the nationalist brutes ruling Germany and Italy, he wrote history. In History of the English Speaking Peoples: The Great Democracies, the fourth volume of his history of the Anglosphere, his view of American history reflected a patrician education and disposition. Never comfortable in the twentieth century, Churchill kept the values of a bygone Victorian Era well into the middle of the twentieth century. In Lee he found a similarly anachronistic gentleman of the eighteenth century living in the nineteenth. Churchill wrote that Lee’s “noble presence and gentle, kindly manner were sustained by religious faith and an exalted character.” He “weighed carefully, while commanding a regiment of cavalry on the Texan border, the course which duty and honour would require from him.” Churchill overstated Lee’s antipathy towards slavery but nonetheless seized on the Virginian’s conservative Whiggish politics. Lee knew secession to be dangerous and ill-advised “but he had been taught from childhood that his first allegiance was to the state of Virginia.” Churchill found Lee’s Old South an admirable but flawed reflection of British gentry. “There was,” said Churchill, “a grace and ease about the life of the white men in the South that was lacking in the bustling North. It was certainly not their fault that these unnatural conditions had arisen.” Churchill’s denotation of white men underscores his innate humanity. White men, he knew, built their civilization on the backs of enslaved people held in human bondage. “The institution of negro slavery,” Churchill knew, “had long reigned almost unquestioned.” Upon the basis of slavery “the whole life of the Southern states had been erected.” Churchill saw a “strange, fierce, old-fashioned life. An aristocracy of planters, living in rural magnificence and almost feudal state, and a multitude of smallholders, grew cotton for the world by slave-labour.” Churchill’s empathy for the planter class stemmed from his willingness to conceive them as a class that “ruled the politics of the South as effectively as the medieval baronage had ruled England.” Southerners who by varying degrees colluded with the capitalist system became feudal agrarians and misplaced Englishmen in Churchill’s romantic imagination. [2]

Southerners engaged in the capitalist system in the antebellum era. Not all southerners were equally capitalist, however, and the Whig planters of Mississippi and Louisiana embraced the economic, expansionistic, and modernizing nationalism of the United States in a way that horrified old planters in Virginia and Carolina. Nonetheless, the Old aristocratic Anglo-American planter communities provided Churchill with set pieces as he wrote his histories. Of Lee, Churchill somberly wrote that he “wrestled earnestly with his duty” during the secession crisis. “By Lincoln’s authority he was offered the chief command of the great Union army now being raised. He declined at once…” The immediacy of Lee’s refusal supplied Churchill with a heroically long-suffering but duty-bound Anglophone hero. Churchill made much of how Lee resigned, “and in the deepest sorrow rode across the Potomac bridge for Richmond. Here he was immediately offered the chief command of all the military and naval forces of Virginia.” Lee’s decision, thought Churchill, seemed beautiful and tragic. “Some of those who saw him in these tragic weeks, when sometimes his eyes filled with tears, emotion which he never showed after the gain or loss of great battles, have written about his inward struggle. But there was no struggle; he never hesitated.” Lee’s choice, declared Churchill, “was for the state of Virginia. He deplored that choice [and] foresaw its consequences with bitter grief; but for himself he had no doubts at the time, nor ever after regret or remorse.” Writing in 1858, Lee appeared as a forerunner of Churchill himself: warning of the disaster befalling England, but fighting determinedly when the conflict came. [3]

Sensitive to the political differences between Imperial Britain and the United States, Churchill nonetheless tried to make sense of the American Civil War and its aftermath. Churchill saw that “Radical vindictiveness” in Republican ranks “sprang from various causes. The most creditable was a humanitarian concern for the welfare of the negro.” Belief in the God-given humanity of African Americans was “shared only by a minority.” Churchill believed that “more ignoble motives were present in the breasts of such Radical leaders as Zachariah Chandler and Thaddeus Stevens.” Because they loved “the negro less than they hated his master, these ill-principled men wanted to humiliate the proud Southern aristocracy, whom they had always disliked, and at whose door they laid the sole blame for the Civil War.” But Churchill argued that “there was another and nearer point.”

The Radicals saw that if the negro was given the vote they could break the power of the Southern planter and preserve the ascendancy over the Federal Government that Northern business interests had won since 1861. To allow the Southern states, in alliance with Northern Democrats, to recover their former voice in national affairs would, the Radicals believed, be incongruous and absurd. It would also jeopardise the mass of legislation on tariffs, banking, and public land which Northern capitalists had secured for themselves during the war. To safeguard these laws the Radicals took up the cry of the negro vote, meaning to use it to keep their own party in power.

Churchill conceived of the Civil War from a perspective of a Briton deeply suspicious of the effects of modernizing industrial nationalism. His best known Liberal biographer, Lord Jenkins, painted him as a champion of Free-trade economic libertarianism and of workers as well. William Manchester, a far more conservative biographical voice, likewise understood Churchill as essentially a Free-trader whose conservatism remained confined to foreign policy. Free-trade economic views never allowed Churchill to entirely embrace the relationship between corporation and nation that characterized post-Civil War American politics. [4]

Capitalism accompanied Free-trade in Churchill’s mind, and he affirmed capitalism in his ideals about society. But he likewise displayed antipathy for the wedding of corporation and nation that followed the American Civil War. Of the captains of industry he wrote that “Carnegie and Rockefeller, indeed, together with Morgan in finance and Vanderbilt and Harriman in railroads, became the representative figures of the age,” when compared to the “colourless actors upon the political scene.” “Though the morality” of the captains of industry “has often been questioned, these men made industrial order out of chaos. They brought the benefits of large-scale production to the humblest home.” Still, Churchill saw the Gilded Age American Union as racked “by severe growing pains” and unrest. “There was much poverty in the big cities, especially among recent immigrants. There were sharp, sudden financial panics, causing loss and ruin, and there were many strikes, which sometimes broke into violence.” Most disturbing to Churchill the free trader, “Labour began to organize itself in Trade Unions and to confront the industrialists with a stiff bargaining power. These developments were to lead to a period of protest and reform in the early twentieth century.” Churchill’s deep ambivalence about the wedding of capitalism and nationalism led him the recognize “gains conferred by large-scale industry” but also to lament that “the wrongs that had accompanied their making were only gradually righted.”[5]

Churchill’s British perspective offered a nuanced perspective that stood outside the intemperate screeds of Lost Cause southerners, and the more numerous and far more influential hyper-nationalist hagiography devoted to the white northern liberators. Churchill understood that slavery constituted the great systemic evil of the nineteenth century United States and caused the Civil War. His libertarian proclivities left him unconvinced of the necessity of 800,000 dead. In this he prefigured agrarian Wendell Berry who noted in his essay “American Imagination and the Civil War” that a botched emancipation was far batter than no imagination. But Berry also noted that history demands that a botched emancipation be criticized for what was botched. David Goldfield, former president of the Southern Historical Association, declared in his America Aflame that his work was “neither pro-southern nor pro-northern. It is anti-war, particularly the Civil War.”[6]

To his credit, Abraham Lincoln regretted the Civil War’s violence in 1865 and subsequently proposed an expeditious readmission criterion for the seceded states, only to have it scuttled by Radical Republicans after his assassination. Unbeknownst to Lincoln, who genuinely seemed interested in restoring the status quo ante bellum, the war unleashed the ideological monstrosity of modern industrial nationalism on the American polity. Harry Stout recognized that industrial nationalism tarnished the war’s consequence of liberating African Americans from chattel slavery. Elliott West’s history of the Nez Perce War of 1877 posited the idea of a greater Reconstruction, whereby the Republican Party remade the entirety of the continental American polity in the image of white capitalistic, militaristic, Evangelistic Protestant nationalism. Native Americans stood in the way of the American nation, and the U.S. Army ruthlessly destroyed the last free Indian societies in the Far West. Societal transmutation on that scale necessitated violence in the name of the nation. Jackson Lears pointed out in his Rebirth of a Nation that racism on a societal scale (southern and northern) fed this nationalism driven by a political organization formally committed to black liberty. By 1900, four decades of almost uninterrupted Republican government turned the United States into an imperialistic nation-state. Though to a small degree mitigated institutionally in the United States by a lingering federalism, nationalism with its muscular industrial core eventually threw Europe into the nightmare of two world wars.[7]

Few American historians have offered an anti-nationalist vision of the Civil War. The camps seemed too rigidly defined for works such as Churchill’s to remain valid. Churchill’s vision of the American Civil War Era is at once not southern enough for Lost Cause partisans, nor is it sufficiently pro-northern for Neo-Abolitionists. Churchill saw the conflict as a tragedy. Nationalist historians and political philosophers generally counted the war a blessing; to think it a tragedy negated the benefits of union and emancipation. British Marxist Robin Blackburn exasperatedly asked why “a willingness on the part of the United States to admit the possibility that the war was not the best response” to secession or slavery was seen as condoning either.[8]

Conservative historians understandably co-opted Churchill into the pantheon of Anglo-American heroes committed to the maintenance of the Western World and to its transcendent expression of human liberty. Much of the resilience involved in Churchill revolves around the image of a nationalist military chieftain committed to Britain’s place in the world. That image is true—Churchill biographer Carlo d’Este argued that his subject was one of the humans truly born for war—but not complete. John Keegan once described Churchill as a true libertarian, and this seems an appropriate corrective given the multitude of remembrances published on this fiftieth anniversary of his passing.[9]

[1] Glenn W. LaFantasie, “Broken Promise,” Civil War Monitor 13 (Fall, 2014): 37

[2] Winston S. Churchill, A History of the English-Speaking Peoples Vol. 4: The Great Democracies.

[3] Churchill, Great Democracies.

[4] Roy Jenkins, Churchill: A Biography (New York: Farrar, Straus, & Giroux, 2001), 398-401; William Manchester, Last Lion: Winston Spencer Churchill, Visions of Glory (New York: Little & Brown, 1989), 361.

[5] Churchill, The Great Democracies.

[6] Wendell Berry, “American Imagination and the Civil War,” in Imagination in Place (Berkeley, CA: Counterpoint, 2010), 27; David Goldfield, America aflame: How the Civil War Created a Nation (New York: Bloomsbury, 2011).

[7] Elliott West, The Last Indian War: The Nez Perce Story (Oxford and New York: Oxford University Press, 2009); Jackson Lears, Rebirth of a Nation: The Making of Modern America (New York: HarperCollins, 2009).

[8] Robin Blackburn, “Why the Muted Anniversary? An Erie Silence,” CounterPunch (18th April 2011):

[9] Carlo d’Este, Warlord: A Life Winston Churchill at War, 1874-1945 (HarperCollins, 2008); John Keegan, Winston Churchill: A Life (New York: Penguin, 2002), 27.

The Felony-Murder Rule: Background and Justification

In American History, Britain, Criminal Law, History, Humanities, Jurisprudence, Justice, Law, Oliver Wendell Holmes Jr., Philosophy on October 8, 2014 at 8:45 am

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The rule at common law as incorporated into the legal system of the early United States was that a person is guilty of murder (and not some lesser offense of killing) if he killed another person during the commission or attempted commission of any felony. This rule is known as the “felony-murder rule.” It was abolished in England in the mid-20th century and never existed in such continental nations as France or Germany. The rule became common, however, in various jurisdictions throughout the United States, although it never escaped criticism.

Felony murder is bifurcated into first-degree and second-degree murder: the former arises when the killing of another results from the commission of an enumerated felony; the latter arises when the killing of another results from the commission of an unspecified felony. The felony-murder rule negates any investigation into the objective intent of the offender; it obtains regardless of whether the offender killed his victim intentionally, recklessly, accidentally, or unforeseeably. Although it dispenses with the element of malice that is requisite to a finding of murder, the felony-murder rule retains by implication the concept of malice insofar as the intent to commit a felony is, under the rule, constitutive of malice for murder. The rule, in essence, conflates the intent to commit one wrong with the intent to commit another wrong, namely, the termination of another’s life. The intent to do a felonious wrong is, on this understanding, sufficiently serious to bypass any consideration of the nature of the exact wrong that was contemplated.

The most common justification for the felony-murder rule is that it deters dangerous felonious behavior and decreases the chance that an innocent bystander will suffer bodily harm from a high-risk felony. The possibility of a more severe conviction and sentence, according to this theory, reduces the number of negligent and accidental killings that might have taken place during the commission of a felony. Oliver Wendell Holmes, Jr., supported the felony-murder rule, believing as he did that a felonious offender who kills another person during the commission of any felony ought to be punished as a murderer, even if the killing was not foreseeable based on the circumstances of the felony. Critics of the deterrence justification for the felony-murder rule have argued that no rule can deter an unintended act.

Another justification for the felony-murder rule is that it affirms the sanctity and dignity of human life. This justification answers in the affirmative the question whether a felony resulting in death is more serious than a felony not resulting in death. Because a felony resulting in death is, in fact, more serious, according to this logic, a felony murderer owes a greater debt to society and must accordingly suffer a more extreme punishment. Critics of this view argue that the culpability for the two separate harms—the felony and the killing—must remain separate and be analyzed independently of each other. These critics suggest that the felony-murder rule runs up against constitutional principles regarding proportional punishment (i.e., whether the punishment “fits” the crime) and that there is no justice or fairness in punishing a felon for a harm (death) that was unintended.

British Origins of American Estate and Land Law

In American History, Britain, Economics, History, Humanities, Law, Property on September 17, 2014 at 8:45 am

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Estates and land are the foundation of property law in England and the United States.  After the Battle of Hastings in 1066, when William the Conqueror, or William I, became the King of England, he recognized that land ownership was essential to the governance of his kingdom.  Announcing himself owner of all English lands, he distributed property to those loyal to him. The recipients became “tenants”; the rent was called “services”; knights performed “services” on behalf of the king, thus earning their honorific title and their rights to certain lands.

William bestowed a special designation, tenant in chief, to those who were offered more land than they could use.  Everything necessary to survive and flourish at this time came from the land: food, water, shelter, building supplies and other equipment, and mineral resources.  Tenants, therefore, would parcel out tracts of their land to others in exchange for fees and services.  Recipients of the parceled tracts would parcel out smaller tracts of land, and this process of parceling would continue until the people living on the land had no rights to the land.

The result was that ownership in tracts of land became known as freehold or nonfreehold.  Interests in freehold tracts included fee simple estates, fee tale estates, and life estates; interests in nonfreehold tracts included periodic tenancies, terms, and tenancies at will.  These six categories of land ownership and title remain with us today.

The Immunity Community

In America, American History, Arts & Letters, Britain, History, Humanities, Jurisprudence, Justice, Law, Libertarianism, Philosophy on September 10, 2014 at 8:45 am

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This piece first appeared here as a Mises Emerging Scholar article for the Ludwig von Mises Institute Canada.

The doctrine of sovereign immunity derives from the English notion that “the king can do no wrong” and hence cannot be sued without his consent. The purpose of this doctrine was, in England, from at least the Middle Ages until eighteenth century, to bar certain lawsuits against the monarch and his or her ministers and servants. With the rise of the English Parliament after the death of Elizabeth I, government officers and politicians sought to gain the power of immunity that the monarch and his or her agents had enjoyed.

In practice, however, English subjects were not totally deprived of remedies against the monarch or the government. The doctrine of sovereign immunity was not an absolute prohibition on actions against the crown or against other branches of government;[1] subjects could avail themselves of petitions of right or writs of mandamus, for instance, and monarchs fearful of losing the support of the people would often consent to be sued.

It was not until the monarchy had been demonstrably weakened that the doctrine of sovereign immunity began to be espoused with added urgency and enforced with added zeal. In the late eighteenth century, Sir William Blackstone intoned in his Commentaries on the Laws of England that the king “is not only incapable of doing wrong, but ever of thinking wrong: he can never mean to do an improper thing: in him is no folly of weakness.” These lines convert sovereign immunity into sovereign infallibility, a more ominous yet more dubious pretension.

Once the monarchy had been abolished altogether, the idea that the sovereign had to consent to be sued no longer held credence. As Louis L. Jaffe explains, “Because the King had been abolished, the courts concluded that where in the past the procedure had been by petition of right there was now no one authorized to consent to suit! If there was any successor to the King qua sovereign it was the legislature,” which, having many members subject to differing constituencies, was not as accountable as the monarch had been to the parties seeking to sue.[2]

The principle of sovereign immunity carried over from England to the United States, where most states have enshrined in their constitution an absolute bar against suing the State or its agencies and officers whose actions fall within the scope of official duties. The Eleventh Amendment to the U.S. Constitution likewise states that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” This provision, which applies only in federal courts and which does not on its face prohibit a lawsuit against a state by a citizen of that same state, was adopted in response to the ruling in Chisholm v. Georgia (1793), a case that held sovereign immunity to have been abrogated and that vested in federal courts the authority to preside over disputes between private citizens and state governments.

Notwithstanding the complex issues of federalism at play in the Chisholm decision and in the Eleventh Amendment, the fact remains that the doctrine of sovereign immunity has been applied with widening scope and frequency since the states ratified the Eleventh Amendment in 1795. The U.S. Supreme Court has contributed to the doctrine’s flourishing. “The Supreme Court’s acceptance of sovereign immunity as constitutional principle,” explains one commentator, “depends on its determination of the intent of the Framers, which ignores a great deal of historical evidence from the time of the founding and relies primarily on a discredited account of the Eleventh Amendment first articulated in the 1890 case of Hans v. Louisiana.”[3]

State and federal courts have now built an impregnable wall of immunity around certain state and federal officers. The sovereign immunity that is enshrined in state constitutions is, in theory, not absolute because it is conferred only to certain agents and officers and does not prohibit lawsuits to enjoin such agents and officers from performing unconstitutional or other bad acts. In practice, however, the growth of qualified immunities, which is in keeping with the growth of government itself, has caused more and more agents of the State to cloak themselves in immunity.

Bus drivers, teachers, coroners, constables, high school coaches, doctors and nurses at university hospitals, security guards, justices of the peace, government attorneys, legislators, mayors, boards of education and health, university administrators, Indian reservations, prison guards and wardens, police officers and detectives, janitors in government facilities, licensing boards, tax assessors, librarians, railroad workers, government engineers, judges and justices, school superintendents and principals, towing companies, health inspectors, probation officers, game wardens, museum docents and curators, social workers, court clerks, dog catchers, contractors for public utilities, public notaries, tollbooth attendants, airport traffic controllers, park rangers, ambulance drivers, firefighters, telephone operators, bus drivers, subway workers, city council members, state auditors, agricultural commissioners—all have sought to establish for themselves, with mixed degrees of success, the legal invincibility that comes with being an arm of the state.

Yet the idea that “the king can do no wrong” makes no sense in a governmental system that has lacked a king from its inception. Its application as law has left ordinary citizens with limited recourse against governments (or against people claiming governmental status for the purpose of immunity) that have committed actual wrongs. When the government, even at the state level, consists of vast bureaucracies of the kind that exist today, the doctrine of sovereign immunity becomes absurd. If it is true that in nine states and in the District of Columbia the government employs more than 20% of all workers, imagine how many people are eligible to claim immunity from liability for their tortious conduct and bad acts committed on the job.

Local news reports are full of stories about government employees invoking the doctrine of sovereign immunity; few such stories find their way into the national media. Judge Wade McCree of Michigan, for instance, recently carried out an affair with a woman who was a party in a child-support case on his docket, having sexual intercourse with her in his chambers and “sexting” her even on the day she appeared as a witness in his courtroom. Although McCree was removed from office, he was immune from civil liability. An airport in Charleston, West Virginia, is invoking the doctrine of immunity to shield itself from claims that it contributed to a chemical spill that contaminated the water supply. Officer Darren Wilson may be entitled to immunity for the shooting of Michael Brown, depending on how the facts unfold in that investigation.

The U.S. Supreme Court once famously declared that the doctrine of sovereign immunity “has never been discussed or the reasons for it given, but it has always been treated as an established doctrine.”[4] A disestablishment is now in order. The size and scope of government is simply too massive on the state and national level to sustain this doctrine that undermines the widely held belief of the American Founders that State power must be limited and that the State itself must be held accountable for its wrongs. Friedrich Hayek pointed out that the ideal of the rule of law requires the government to “act under the same law” and to “be limited in the same manner as any private person.”[5] The doctrine of sovereign immunity stands in contradistinction to this ideal: it places an increasing number of individuals above the law.

If the law is to be meaningful and just, it must apply equally to all persons and must bind those who enforce it. It must not recognize and condone privileges bestowed upon those with government connections or incentivize bad behavior within government ranks. Sovereign immunity is a problem that will only worsen if it is not addressed soon. The king can do wrong, and so can modern governments. It’s time for these governments to be held accountable for the harms they produce and to stop hiding behind a fiction that was long ago discredited.

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[1]See generally, Louis L. Jaffe, “Suits Against Governments and Officers: Sovereign Immunity,” 77 Harvard Law Review 1 (1963).

[2]Jaffe at 2.

[3]Susan Randall, “Sovereign Immunity and the Uses of History,” 81 Nebraska L. Rev. 1, 4 (2002-03).

[4]U.S. v. Lee, 106 U.S. 196, 207 (1882).

[5]F. A. Hayek, The Constitution of Liberty, Vol. 17 of The Collected Works of F.A. Hayek, ed. Ronald Hamowy(Routlege, 2011), p. 318.