on June 5, 2014
Hannan has written a provocative analysis of the origins of freedom in the modern world - wide ranging over time and territory. My task here is to challenge some of his assumptions and assertions. Hannan clearly believes English common law is one of the reasons freedom developed and expanded in the "Anglosphere," with its basis in precedent, past cases, and empirical adjustments, as opposed to the Roman or Napoleonic coded laws which are deductive and based upon theoretical concepts. Moreover, the codes originate at the top of power and can be easily changed by the rulers; whereas common law is the search for justice through accretions of decisions, and once discovered through particular instances and cases, then all, including the king, must abide.
Supporters of the supremacy of the common law could emphasize what occurred in 1655 when Cromwell permitted Jews to return to reside in England (they had been expelled from the kingdom in 1290). So Hannan (on p. 181) follows historian Paul Johnson to conclude: "... England was, before the United States, the best place to live and practice as a Jew. The reason ..., elsewhere, Jews had been placed in a separate legal category in the days when ecclesiastical courts claimed no jurisdiction over non-Christians. The separate status made Jews vulnerable down the centuries to all manner of discrimination and persecution. In England, by contrast, Jews were subject only to the relatively mild restrictions placed on all non-Anglicans.."(Hannan, p. 181)
Then, there is something almost deceptive in Hannan's use of "common law." On p. 255 he rhapsodizes about the Acts of Union - how the Welsh, English, and Scots were proud in their Britishness, and proud of the British Empire. "Britishness,..., is a political and constitutional construct based primarily on shared political values and institutions." Later, on the same page, Hannan continues: "The British saw themselves as being set apart by unique institutions: a sovereign parliament, the common law, secure property rights, an independent judiciary, armed forces that were subordinate to the civil authorities, Protestantism, and above all, personal freedom."(255)
Yet, not until p. 328 (of a 377 page book) does Hannon let slip an important fact. "[Foreigners] were astonished-... by the miracle of the common law. In their countries, laws were drafted by the government and then applied to particular cases. But in the Anglosphere (except Scotland), laws emerged case by case..." Only in this parenthesis does Hannan, who extols the union of England and Scotland, concede that the miraculous common law was not authoritative in Scotland. That kingdom retained a Roman-type Codified law.
And if not deception, surely clarification is lacking elsewhere. When revealing the origin of the phrase from Lincoln's Gettysburg Address, Hannan notes "But the words were not Lincoln's. Most of his hearers would have recognized the source, as our generation does not. They came from the prologue to what was probably the earliest translation of the Holy Scripture in the English language: `This Bible is for the government of the people, for the people and by the people.' The author was the theologian John Wycliffe...the words had first appeared in 1384."(Hannan, pp. 32-33) However, googling, one source attributed the phrase to Wycliffe's assistant, John Purvey for the prologue to the editions of 1388 and/or 1395, after the death of Wycliffe. But it does not end there. In 2009 Eugene Volokh on his web site concluded that the claim for Wycliffe and company was apocryphal and that those phrases do not exist in the prologues to Wycliffe's Bible. Another website, for Hoyle's New Cyclopedia of 1922 thought the phrase may have come from the Hereford Bible or a pamphlet from that era. My question, if Hannan's claim that Americans of the 19th century would have recognized Lincoln's source as Wycliffe, why did they not comment upon it? Surely, much has been written about Lincoln and that speech. Hannan, who graduated with a double first in history from Oxford should have provided a proper reference, especially as Volokh, several years prior to Hannan's book being published, had already disputed the claim.
On the larger point, I agree with Hannan that Protestantism, especially where the congregations chose the ministers of the church, was more democratic in process and practice, than Roman Catholicism, where priests were assigned by higher church authorities. Whether Wycliffe is or is not the source of Lincoln's phrase in the Gettysburg Address, there was a democratic, populist impulse in the Protestant Revolution.
Hannan rightly points out that one neglected aspect of the American Revolution was its anti-Catholicism. There was a feeling my many that the Quebec Act of 1774 enraged the American colonists because they believed that that act, and the Proclamation Line of 1763, which denied colonists access to lands west of the Allegheny Mountains. These British measures thus deprived the colonists of their fruits of victory. Together, the British and colonials had defeated their enemies in North America during the French and Indian War. Yet, suddenly King George was robbing the colonists of their victory by granting so much to the French of Quebec and the Indians of the West. Indeed, Hannan rightly reminds readers that one section of the Declaration of Independence contained a specific complaint about the Quebec Act, though the legislation was not mentioned by name. In the Declaration, the act was listed as one of the grievances that led the colonists to declare their independence.
Hannan quotes both John Adams and Thomas Jefferson where they display their anti-Catholic beliefs. But Hannan is silent on another important point. In 1803 when the Jefferson Administration bought the huge Louisiana Territory from Napoleon, America pledged not to interfere with the religion of the inhabitants. Because under the French and Spanish, only the Roman Catholic Church was permitted, most settlers were Roman. Of course, henceforth, under the Americans, there would be religious freedom. But when Louisiana entered the union as a state in 1812, the boundary had been drawn so that only a small portion of the Louisiana Territory would enter as that state - and this is where most of the Catholics were. Catholics would not be persecuted, but their influence would be restricted because their state would be only the boot of the massive territory. Louisiana became the first state with a majority Roman Catholic population. And midway in the 19th century, Louisiana would become the first state to send to the US Senate a professing Jew. Indeed, Sen. Judah Benjamin would later enter the Cabinet holding several posts during the Administration of Pres. Jefferson Davis of the CSA. And like other southern states after the Civil War, several Blacks held high office in Louisiana during Reconstruction. Louisiana is the only state in the US to have laws based on Spanish and the Napoleonic Codes rather than English common law.
Of course, with its Spanish and Napoleonic Codes, Catholic Louisiana retained slavery until it was abolished at the end of the American Civil War. But slavery also existed in all the southern states, most of which were not merely Protestant, but so fervently Protestant that they are still referred to as "the Bible belt." They all had English common law, but it did not free, or even help the slaves on those states. In the North and South there were some who sought to reduce or end slavery through colonization - sending slaves to Africa or elsewhere. These efforts led to the foundation of Liberia and its capital, Monrovia, named after a slave-holding American president. The Abolitionists helped form the Republican Party, but their support was almost exclusively in the North. In 1860 the Republican candidate won the national Presidency with only 40% of the vote, and not a single vote counted for Lincoln in the South. Bottom line, and again I must agree with Hannan, though some Protestants defended slavery in Biblical terms, even fighting a war with massive casualties to retain the institution, other Protestants, also using the Bible, demanded the abolition of slavery. They too fought, and died, to end slavery. They won the Civil War.
Hannan writes that the "custom" of primogeniture - giving all the inheritance to the eldest male heir, provided stability of inheritance and property and a stimulus for early capitalism. His contrasts of the English countryside with those of the European continent makes a powerful visual argument. Yet, Hannan relates that second sons in America, like Thomas Jefferson, were adamant in their opposition to the custom and determined to prevent primogeniture from monopolizing rural America. Small farms were his ideal and he had laws enacted to prevent primogeniture. By contrast, in the Napoleonic Code, all children, including females, become heirs, and they cannot be totally disinherited.
Hannan contends that the American Revolution was a continuance of the British struggles that had culminated in the Glorious Revolution, which deposed James II in favor of William and Mary. Hannan argues that the British learnt from their failure in dealing with America. Thereafter, the objective of the British Empire was to treat its colonies so as to prepare them for eventual self-government and independence. The British imperial mission was to provide colonies with British customs, the English language, common law, sanctity of property, etc. He is aware that British imperialism now has a bad rep, but it was the empire that stopped the international slave trade and later abolished slavery in its dominions. And unlike French, Belgian, or German colonies, under the British native peoples often achieved independence without much bloodshed (though he acknowledges Kenya as an exception).
As proof of the success of the British Empire, Hannan cites statistics on India during WWII: "Whereas the Japanese-backed Indian National Army numbered forty thousand, nearly 2.5 million Indians fought for the Anglosphere in Europe, Asia, and Africa: the largest volunteer army in history."(297) This is surely a powerful statistic supporting Hannan's thesis; however, it does not tell the entire story. Subhas Chandra Bose, elected mayor of Calcutta, was President of the Indian National Congress, but in disputes with Gandhi in 1938-39, Bose lost his Congress Party post. With the outbreak of war, the British placed him under house arrest. Bose escaped with the aid of the German Abwehr, which got him to Afghanistan, then flew him to Moscow (Stalin and Hitler were allies at that time), and finally to Berlin. Bose broadcast on German shortwave nightly as Free India Radio. He recruited from Indian POWs who had for Britain against the Rommel campaign in Africa so that so that 3,000 Indians formed the Free India Legion in the Wehrmacht. Bose even met Hitler. In March 1943 Bose traveled by German U-boat to waters off Madagascar, where the German sub met one from Japan. Bose transferred to the Asian vessel. In May 1943 he landed in Japanese occupied Indonesia; Bose proclaimed the Provisional Government of the Republic of India, declared war on Britain and the United States, and began recruiting his Indian National Army from among Indian POWs of Japan. Remember, these were men who had sworn to fight for the British King - now they would break their oath and fight for the Axis and a free India. Finally, his troops were ready, but in Burma in 1944, they suffered defeat. Still, there was great shock and fear among the Raj in India. How could their soldiers defect, and then fight against them? "The Jewel in the Crown" provides a fictional glimpse of the angst caused by Bose and the fear of an Axis Indian army invading India. Hannan hoists the numbers 2.5 million to 40,000. I think it was a much closer call. And while almost all Indians regard Gandhi as a father of independent India, many see two fathers - the other being Chandra Bose. Bottom line, India remained British during WWII. On that Hannan is correct. But I think it was a much closer call than the stats indicate.
And when crunch time came in WWII, even Canada was not as solid as Hannan's book implies. There was no draft in French Canada. Why were the French in Canada less enthusiastic about defending Britain during time of threat? Perhaps, events in France had something to do with Canada's reaction.
Jews had been expelled from parts of, but not all of France around the same time they were exiled from England in the late 1200s. In those parts where Jews remained in France, they were subject to separate laws, but they could still live in various sections of France, and these areas grew as France annexed new lands as Alsace and Lorraine. With the French Revolution, more changes occurred than the mere measure by the king's foot. The metric system replaced the older weights and measures to provide a "reasonable" system. In addition, the promotion of reason led to the onslaught against "superstition," i.e. clericalism and Christianity. Even the Christian calendar was abolished and replaced with Year I of the French Revolution and a (metric) 10-day week. The Cathedral of Notre Dame was converted into the Temple of the Goddess of Reason. And in accord with these changes, in 1791 Louis Peletier "presented a new criminal code to the Constituent Assembly. He explained that it outlawed only `true crimes,' and not phony offenses created by superstition, feudalism, the tax system, and [royal] despotism.' He did not list the crimes `created by superstition,' but these certainly included, blasphemy, heresy, sacrilege, witchcraft and homosexuality. All these former offenses were swiftly decriminalized. In 1810 a new criminal code was issued under Napoleon. As with the Penal Code of 1791 it did not contain provision against religious crimes."(Wikipedia. Napoleonic Code)
Where Napoleon's troops conquered, and his Code often imposed, there was also a liberating result. Jews who had been proscribed to reside only in ghettos, could leave; gays might not be prosecuted. There were major critics of these changes, from the outside, Metternich to the Russian Czar, and on the inside, not all reforms were implemented in all French satellites, as Poland was also unhappy with some. So, many could view Napoleon as a great liberator when he conquered. However, if the initial Jacobin radicalism of equality and the Rights of Man may have helped stir events in Haiti, Napoleon sent troops to the island not to aid in liberation, but to quell the slave rebellion and reinstitute slavery. Thus, the contrast. While many hailed his liberating victories in the Rhineland and the Papal states of Italy, in Haiti the freed slaves cheered the defeat of Napoleon's quest for empire in the New World.
Hannan emphasizes the common law, the rule of law, primogeniture, and Protestantism as elements in the growth of capitalism and the subsequent prosperity of the modern world. Yet, the European continent had no English common law, yet it certainly had capitalism. And though Max Weber and other sociologists associate Protestantism with capitalism on the continent, as in the Netherlands and the Huguenots of France, still what group was most associated with the bourgeoisie and capitalism on the continent? Though the Rothschild banks may have preceded the Napoleonic Code, most of his sons, and their banks were located on the continent. They did not enjoy the miraculous features of common law. And surely, Rothschild did not believe in primogeniture. He sent his sons from Frankfurt to Vienna, Naples, Paris, and London to found similar banks. Nevertheless, most would consider the Rothschilds to be successful.
(Despite the liberating influence of Napoleon on Jews in Europe, curiously, Rothschild's bank did much to supply funds for Wellington and the British in its wars against the French Emperor. I am unsure if that was only the London branch. Might the others have supported Napoleon?) Napoleon eventually lost, and many Jews in Italy had to return to the ghettos. Nevertheless, but the 1850s the Rothschilds were possibly the richest family on earth. Jews, without the "aid" of the English common law, were becoming the capitalists, par excellence of Europe, sponsoring railroads and later oil development throughout the globe. And it was not simply the Rothschilds. Google various countries to discover the statistics of Jewish overrepresentation in the professions, in industry, in commerce, in wealth, in France, Germany, AustroHungary, etc. and this overrepresentation increased after WWI. There was growing jealousy. And with the growth of socialism in various forms, there were demands to kerb the 1%, kerb the elite, kerb the capitalists, kerb the Jews. Communism seized power in Russia, but in Italy, Portugal, Hungary, ever more European nations were turning to anti-communism, and fascism. The most important of these would be when the National Socialists of Adolf Hitler ascended to power in Germany.
Some early attempts by the Nazis to restrict Jews were to reduce their activities to their % of the general population in professions, business, etc. and thus allow gentiles to achieve their "rightful" percentage of the pie of wealth - (similar to affirmative action in modern America). When restrictions failed to contain Jewish success, other measures, culminating with their elimination, were often deemed necessary and accomplished legally.
War began in September 1939 and by summer 1940, following the Sitzkrieg on the western from, German armies swept through. While the British planned to enter Norway, the Germans beat them to the punch, quickly going through Denmark, and then taking Norway. Then Netherlands and Belgium. And almost as quickly, France crumbled. The French Republic was replaced by a hero of the First World War, a man who now gave himself to the nation as Chief of State, Marshal Philippe Petain. The Marshal acknowledged the defeat of France but hoped to save its empire by cooperating with the German victors. Collaboration was the word. The new British Prime Minister Winston Churchill, fearing France's fleet would fall to Hitler, (and when combined with Axis sea power, be able to challenge the British Navy), Churchill chose to act quickly and decisively. His ships cornered the French fleet on 3 July 1940 in the Algerian port of Mers-el-Kebir, and the British demanded surrender within an hour. In effect, it was a surprise attack. The British destroyed most of the French ships and killed 1.300 French seamen. Britain, ally of France in April 1940, turned on the French in July to kill 1,300 seamen at Mers-el-Kebir. To put thing in perspective: in December 1941 when the Japanese attacked Pearl Harbor, they killed 2,400 American servicemen. Americans were incensed and demanded war with the antagonist, Japan. In 1940 many in France wanted to declare war against Britain, the ally who had killed so many Frenchmen. But Petain believed France too weak to fight Britain after losing to Germany. So, no war with Britain, but collaborate with Germany. Petain scrapped the French Revolution, trashed the old trinity of liberty, equality, and fraternity, and established a new trinity for the new era - work, family, country. The Napoleonic Code crumbled too. Jews were rounded up, homosexuals declared criminals, Masonic lodges closed and confiscated, etc. France was to find its new place in Neuropa, Neurope, as the continent would be led from Berlin.
In the 1920s and 30s one European nation after another rejected democracy for fascism. Communism dominated the many nations that composed the Soviet Union. By 1941 there was little left of the Napoleonic Code, even in France. Does Hannan think that the common law could have prevented the collapse and catastrophe in Europe? Had Hitler's forces captured London, does he think the common law would have spared England the atrocities of fascism?
I do not have time to discuss some of Hannan's other thought-provoking points. Royal power was restricted in England because England is an island, without need of a standing army. For the king to get one, he had to ask for the money and goods from the people's representatives. But clearly just being an island need not result in a restricted monarchy. Japan's emperor was so elevated, he was deemed a god. Hannan makes a case that the British Empire was neither racial nor ethnic. It was open to all willing to accept the culture and values. But there were anti-Chinese laws in Hong Kong. I suspect there were racial laws in many parts of the empire. And in the Anglosphere in the US slavery existed. The same Protestants who promoted rebellion against King George had their sons lead a rebellion against Lincoln and the North, and surely defense of slavery was one major issue. Hannan is courageous enough to quote former MP Enoch Powell, who is reviled by the politically correct. And unlike the Napoleonic Code, the English common law retained the crime of blasphemy. In 1988 when author Salman Rushdie published The Satanic Verses, Muslim fanatics in the UK marched demanding he be charged with blasphemy. But the common law only protected Christianity, so Muslims protested and burned copies of the book. It was soon banned in many countries, including India, which maintained the residue of common law. In 1989 a fatwa was pronounced against Rushdie by the spiritual leader of Iran, who asked zealous Muslims to take his blood.
Though I quibble with some of his points, Hannan has written a provocative book that forces readers to ponder many issues. Clearly, the Anglosphere has brought freedom and prosperity to millions. But are the sources of those freedoms primogeniture? The common law? What are the sources? The book is a good read.