Category Archives: laws

The only world empire ever worthy of the name

The British Empire was, like the industrial revolution, essentially an English phenomenon. It is a myth that the Empire was largely run by Celts, especially Scots. It was overwhelmingly staffed by the English, as the difference in population between England and the rest of the UK would suggest. The Celts may have been represented disproportionately to their proportion of the British population, but they were still very much in a minority amongst the British in the Empire.

Practically, there were two Empires. The first including the American colonies, ended in the first half of the nineteenth century and was primarily driven by trade and political competition between the major western European powers, all of whom lived in fear of the other gaining European ascendency through their passion of colonies which were seen as a source of wealth and hence power. The clichéd idea that Britain obtained an Empire in a fit of absent mindedness really will not stand up. England sought an empire consciously in the seventeenth century because they feared the power of other colonising nations, particularly Spain. The second developed from the 1830s and forties when colonisation began to be seen officially as primarily a duty rather than a political or commercial enterprise,

Trade not plunder was the engine of the early Empire. The American colonies became England’s largest overseas trading partner. England’s relations with India were primarily those of a trading nation until Clive’s victories in the mid  eighteenth century. It was not until the second English empire that the imperial ideal became dominant.

As for overall  material gain from the Empire, it is a moot point whether the Empire from start to finish turned a profit. The  Boer War, for example, cost Britain £200 million pounds at 1900 prices when Britain’s GDP was approximately £2 billion. If the same proportion (10%) of today’s GDP (2010)  was devoted to a war, the expenditure would be in excess of £147 billion.

David Landes in the “Wealth and Poverty of Nations” dismisses the claim that colonialism was the primary cause of  the wealth of European powers or their cultural offshoots such as the United States, by pointing to inconvenient   facts such as the experience of Spain, the greatest power in Europe between 1500 and 1650, and Portugal. Despite the  immense wealth generated by their American possessions, as societies they remained poor even during their period of  greatest material gain from the Americas. Nor did their rulers achieve financial respectability – the Spanish Crown  managed to go bankrupt in 1557, 1575 and 1597. As for the  slave trade, one may point to the wealth of Britain at the  time of abolition and in the century which followed. In 1807 Britain’s GNP was approximately £200 million pounds. By 1914 in was over £2 billion pounds. (Prices in 1807 and 1914 were approximately the same as far as these things can ever be judged) At most, Mr Landes allows that the wealth received by Britain from the slave trade, India and the Americas may, but only may, have slightly accelerated the first Industrial Revolution.

Whether Empires are ever morally justified is a moot point. I must confess to veering instinctively towards Gibbon’s view of the matter, namely that great empires are to be regretted because they impose uniformity and allow a man no  escape from +a government which he cannot either tolerate or be tolerated by. But my head tells me that in practice the  harshest and most morally obnoxious societies are those which are based on Oriental despotism, dynastic kingship or primitive tribal association. The British Empire mainly ruled over peoples who before the British came behaved in a manner which would appal  latter-day liberals..

What is certain is that compared with every other empire ancient and modern, the British Empire was a model of  restraint and in its final century, of deliberately benign government. For those who would dispute the matter, let them consider the cruelty of the French in Algiers in the decade prior to Algerian independence or the Chinese now in Tibet.

The British Empire gave a great deal, both  material and moral to those it ruled. The humane values to which the Commonwealth pays at least lip service to as the  defining values of a civilised state, are English values. It may even be that in the long run the representative  institutions which have been so perverted in many of Britain’s ex-colonies will bear the fruit of democratic rule. Political institutions do not guarantee democratic ways, but they do provide the opportunity if times become  more propitious.

Perhaps the most amazing fact about the Empire is the small number of Britons who were involved in the administration of colonies. The subcontinent is perhaps the best example. At the height of the Raj, the 1921 census of the Indian Empire (which included Burma and the states which became Pakistan and Bangladesh) shows a total population of 318,492,480. The total British (white) population was 115,606. This represents 0.036% of the population or one white for every 275 Asians. The 2001 UK census shows approximately 2,083,759  residents of  Pakistani, Indian and Bangladeshi origin. (www.statistics.gov.uk/cci/nugget.asp?id=273). This represents 3.6% of the official population of Britain in 2001,  or one subcontinental  Asian  for every 28  whites. The British figures are understated because of illegal immigration and the fact that  the census relied on self-reporting of racial type.  In addition, the Asian population has grown since 2001. Nonetheless, using the 2001 census figures, If  immigrants from the subcontinent were in Britain in the same  proportion as the British were in the subcontinent, their numbers would be approximately 21,000 as opposed to the two million plus which are now resident.  (These comparative figures also show how unreasonable it is to try justify sub-continental immigration to Britain on the grounds that Britons colonised the sub-continent. The British in India did not swamp the native population anywhere because they were in such tiny numbers. The numbers of sub continental Asians and their descendants  in Britain is large enough to allow what is effective colonisation of parts of the country).

The Empire was a most remarkable phenomenon in its scope, disparate nature and, until the advent of the steamship, its utterly daunting lines of communication in vessels most men would not now trust for a trip across the Channel. At its height it covered approximately a quarter of the world’s population, drawn from the four quarters of the earth. It was  the only world empire ever worthy of the name. It will probably be the last because the political, material and  technological circumstances of the world are never again likely to be conducive to such dominion.

As a coda, I would add that the existence of the Commonwealth, which is a voluntary association of states, is  unique. Never in the whole of history have the past members of an Empire so immediately and willingly associated  themselves with their erstwhile  imperial masters.

Ultimately the USA is the child of England: no England, no United States

Ultimately the USA is the child of England: no England, no United States. The nonexistence of the United States   would have made a colossal difference to the history of the past two centuries and to the present day, not least because  it is and has been for a century or more responsible for a tremendous proportion of global scientific discovery and technological development.

At this point I can hear the cry of many: why the English not the British? Was not the United States formed as much by the  Scots and Irish as by the English? There will even be those who will press the claims of the Germans. A little careful  thought will show that no one but the English could have been responsible, although many peoples and cultures have  subsequently added to the considerable variety of American life.

The English were the numerically dominant settlers from the Jamestown settlement in 1607 until the Revolution. Moreover, and this is the vital matter, they were overwhelmingly the dominant settlers for the first one hundred years. Even in 1776 English descended settlers formed, according to the historical section of the American Bureau of Census, nearly sixty percent of the population and the majority of the rest of the white population was from the non-English parts of Britain. This English predominance may not seem important at first glance because of the immense non-Anglo-Saxon immigration which occurred from the eighteenth century onwards. Would not, a reasonable man might ask, would not the later immigration swamp the earlier simply because of its greater scale? The answer is no – at least until the relaxation of immigration rules in the sixties – because the numbers of non-Anglo Saxons coming into America were always very small compared with the existing population of the USA.

When immigrants enter a country their descendants will generally adopt the social and cultural colouring of the  native population. The only general exception to this well attested sociological fact is in a situation of conquest,  although even there the invader if few in number will become integrated through intermarriage and the general pressure of the culture of the majority population working through the generations. Thus at any time in the development of the USA the bulk of the population were practisers of a general culture which strongly reflected that of the original colonisers, namely the English. Immigrants were therefore inclined to adopt the same culture.

America’s English origins spread throughout her culture. Her law is founded on English common law. The most famous of  American law officers is the English office of sheriff. Congress imitates the eighteenth century British Constitution (President = King; Senate = Lords; House of Representatives = The House of Commons) with, of course, the difference of a codified constitution. (It would incidentally be truer to describe the British Constitution as uncodified rather than unwritten). It is an irony that their system of government has retained a large degree of the   monarchical and aristocratic principles whilst that of Britain has removed power remorselessly from King and aristocracy and placed it resolutely in the hands of elected representatives who have no formal mandate beyond the  representation of their constituents.

 The Declaration of Independence is full of phrases and sentiments redolent of English liberty. The prime political texts of the American revolution were those of the Englishmen John Locke and Tom Paine. The American Constitution is  designed to alleviate faults in the British Constitution not to abrogate it utterly. The first ten amendments which form  the American Bill of Rights draw their inspiration from the English Bill of Rights granted by William of Orange. The  American Revolution was conducted by men whose whole thought was in the English political tradition.

The English influence is written deeply into the American  landscape. Take a map of the States and see how many of the place names are English, even outside the original thirteen colonies which formed the USA. Note that they are divided into parishes and counties.

 Above all other cultural influences stands the English language. Bismarck thought that the fact that America spoke  English was the most significant political fact of his time. I am inclined to agree with him. But at a more fundamental level, the simple fact that English is spoken by Americans as their first language means that their thought processes will be broadly similar to that of the English. Language is the ultimate colonisation of a people.

 Moreover, the English spoken by the majority of Americans is still very much the English of their forebears. It is, for  example, far less mutated than the English spoken in India. The English have little difficulty in understanding USA-born white Americans whatever their regional origin. Indeed, it may come as a surprise to many Americans that the average Englishman probably finds it easier to understand most American forms of often affect not to understand English accents, but it is amazing how well they understand them when they need something. Oscar Wilde’s aphorism that “America and England are two countries divided by a common language” was witty but, as with so much of what he said, utterly at variance with reality.

 There is a special relationship between England and America but it is not the one beloved of politicians. The special  relationship is one of history and culture. American culture is an evolved Englishness, much added to superficially but  still remarkably and recognisably English.

When you go to the cinema think of how often English legends such as Robin Hood are used by Americans. Reflect on how, until recently at least, American universities would give as a matter of course considerable time to the study of writers such as Shakespeare and Jane Austen. These things happen naturally and without self-consciousness because English culture and history is part of American history.

The English and the rule of law

The English desire for freedom and their rights is given practical expression in their attitude towards the law  throughout England’s history: it was respected out of all  proportion to the justice it commonly delivered. It predated  the Conquest. It survived Norman rule. When the jurist  Blackstone’s “Commentaries on the laws of England” were  published in the 1760′s they were immensely popular amongst  the chattering classes of the day. It is difficult to  imagine heavy works on the law being acclaimed by educated Englishmen and women of our own time, but for their  eighteenth century counterparts it was not merely a work of  law but a statement of English liberty and, indeed, of  English superiority over foreigners. Were they wrong to so respect a very flawed system of justice? To answer that  question one need only look at the alternatives.   A system of justice as opposed to law is one of the most difficult of social plants to cultivate. Human beings have a natural inclination to act according to custom within the  prevailing social hierarchy rather than according to an  intellectual construct such as the concept of natural  justice. Moreover, a system of law requires within it the need to apply the law equally to equals. This does not imply a general equality before the law, because a system of law  which differentiated between people, for example on the grounds of social class, would be perfectly rational.  However, it does mean that anyone who fell into a designated class would be treated equally.

What applies to a group based system of law applies with vastly greater force than where general equality before the law is concerned, ie where every person within a jurisdiction is equally subject to the law.

 The difficulty in establishing meaningful systems of law can be all too readily seen in the present. Most of the world’s  people live now as they have always done in societies which do not have legal systems worthy of the name of justice. The most unfortunate live in circumstances where they are at the mercy of competing warlords. There nothing better than the  will of the warlord exists. Other people live in states where there is a formal system of law made worthless by political interference. Many societies have legal systems which lack any meaningful protection for the accused through an absence of forensic examination or concepts such as Due Process.

It is against this background that the English legal development must be seen. The English legal system is as fair  as any in the world and arguably the fairest. It has an  ancient unbroken tradition, formal equality before the law,  habeous corpus, sub judice, well established principles of  due process, widespread use of the jury, substantial   provision for legal aid and above all the presumption of  innocence. The whole is underpinned by the potent concept of  natural justice.

These legal goods stand on the platform of an immensely  strong strain of personal freedom in English history which  has produced a general principle utterly at odds with continental systems of law, namely the idea that an  Englishman may do anything legally which is not forbidden by  law. Continental systems do the reverse: citizens are permitted to do what the law says and not what it doesn’t. That in itself makes those operating under continental law  much more liable to prosecution simply because the variety of  offences is multiplied.

This is not to say that the English justice system is perfect. Indeed, it is far from that. Its most general failure is the fact that it is tainted with money. The quality of legal advice and representation a man receives in either civil or criminal proceedings is largely determined by his wallet. In civil suits the size of his wallet frequently determines whether he may even go to court. Some laws, most notably that of libel, are only available in practice to the very rich or those backed by a rich patron or organisation. Patently, while law is not open equally to all, equality one may add the political involvement of the parliamentary  law officers, the secrecy and incompetence of the prosecuting authorities and the overly restrictive rules of evidence.

But despite its many practical weaknesses, the English legal system does and has provided for centuries the basis for the sane and reasonable delivery of justice. The English have long recognised that a flawed system of law applicable to all is vastly preferable to a partial law which distinguishes between nobles and commoners or no meaningful law at all.  Indeed, it is this attachment to the English Common law which is one of the primary themes of English history. It has had profound consequences, because those who respect the law are likely to be less violent in their personal lives (the idea of vendetta was never part of English custom). Men who can be sure of keeping their property will build for the future.  Political chaos is made less likely where men believe there is a chance of perceived royal wrongs being ighted through parliament.

The case of the leveller leader, John Lilburne, shows how much part of English life respect for the law was even three  and a half centuries ago. Lilburne by every account of him was a most difficult man – it was said that his nature was so  combative that he would seek a quarrel with himself if he were alone – ‘Jack would fight with John’. Yet this man, who  came from a very modest gentry background, remained alive despite challenging the authority of first the king and then during and after the civil war, Parliament, Cromwell and the  Commonwealth. He thus carried on this mortally dangerous behaviour for almost a generation. To the end of his life in 1657, he was thought dangerous enough to imprison.

Lilburne first came to notice for seditious speeches and writings in the 1630s. For that he was whipped from the Fleet  to the Palace Yard where he was stood in the stocks. Whilst in the stocks, he removed copies of the pamphlets which had caused his punishment and threw them to the crowd. That little episode will give a good idea of the Lilburne’s  general mentality. He was an extreme example one of those  necessary unreasonable men without whom nothing great gets done.

From the time of his flogging onwards, Lilburne’s career was one of studied defiance of authority. He was one of the most potent pamphleteers England has ever seen. For more than a decade. He produced a flood of writings guaranteed to inflame virtually anyone in public authority in the land. He faced down judges in the most powerful courts in the land. He controlled the London mob consummately. He treated the greatest men in the land as equals. In any other place on the planet at that time, he would have been dead meat before his career as an agitator began. But not in England. He might be flogged. He might be put in the stocks. He might be imprisoned. He might be tried twice for his life. But what England would not do was unreservedly murder him.

Perhaps one act from history epitomises the advanced legal  state of England. In 1760 Earl Ferrers was found guilty and hanged for the murder of a servant, his steward. One cannot be sure, but I suspect that this was the first time an  aristocrat was executed for the murder of a servant anywhere in the world. Two and half centuries ago, the ideal of  equality before the law in England had become more than a pious hope.