Wednesday, September 4, 2013

Invented Crimes


It’s increasingly common in our day and age, when the State has (to all intents and purposes) achieved the status of a god, to use the coercive power of the State to get whatever you want.  This, of course, is the exact opposite of the “act of social justice,” by means of which ordinary people organize to effect positive change in the institutions of the common good.

The habit of organizing for the common good was, in fact, the characteristic of American life that struck Alexis de Tocqueville most forcefully when he visited the United States and ended up writing Democracy in America.

Organizing for the common good, however, typically requires power, defined as “the ability for doing.”  If you don’t have power, you can’t “do” anything.  Power, however, ordinarily comes from capital ownership.

It is, of course, possible to carry out acts of social justice using “people power.”  The Civil Rights movement is a graphic example of how effective this can be — in the short term.  The problem is that, unless the “people power” is first directed at gaining democratic access to the means of acquiring and possessing private property in capital in order to secure the gains that are made, the gains will either be ephemeral and the effort will have to start all over again, or people will look to the State to guarantee through its coercive power that which people should be able to guarantee for themselves with capital ownership.

When that happens, the State falls prey to special interests — whoever can deliver the most votes or money power to keep the politicians in office.  Power tends to corrupt, and the absolute power of the modern Nation State over every aspect of human life corrupts absolutely.

Nor is this a recent phenomenon.  The trial of Sir Thomas More, an individual whom Jonathan Swift (not Samuel Johnson) characterized as “the person of the greatest virtue these islands ever produced,” is a case in point.

More, despite his lamentable proclivity for puns, knew right from wrong.  He refused to go along with Henry VIII’s very public program to gain a very private end.  Such was the corrupt nature of the Tudor regime that More wasn’t even allowed to mind his own business and remain silent.  The king wanted More’s enthusiastic endorsement of something that he and everyone else knew was wrong.  To try and force More’s hand, various bureaucrats maneuvered More into an untenable situation by inventing crimes and then accusing him of them.

Unusually for a dramatic work, Adrian Bolt was extraordinarily accurate in his play about More, A Man for All Seasons . . . except for attributing Jonathan Swift’s assessment to Samuel Johnson. . . .

Bolt took much of the dialog of the trial scene in A Man for All Seasons straight out of William Roper’s and Nicholas Harpsfield’s biographies.  He updated some of it, of course, since most people today wouldn’t know that calling Richard Rich a “javel” was an insult.

What this writer found interesting is something that Bolt left out of the trial scene; a legal point that would not have made sense to non-lawyers and would have been very difficult to portray dramatically: the fact that, even if More had said exactly what Rich claimed he said in his perjured testimony, it would not have been treasonous!

It would have been a private conversation (i.e., not a public declaration), expressing an opinion, and therefore not “malicious,” i.e., intending to deprive the king of his title.  Thus, even if More had made the statement reported by Richard Rich he would not have been guilty.

Case in point: during the reign of one of the Edwards, I, II, or III, I don’t recall which one, two Anglo-Irish earls, Fitzgerald and Butler (traditional enemies, by the way), got into an argument, and Fitzgerald called the king a few names.  Butler tattled on him to Parliament in an effort to get Fitzgerald attainted a traitor . . . so that he, Butler, could be awarded the Fitzgerald lands.  No self-interest there.

The case came up before Parliament, and Parliament declared that because the words had been said in private conversation and not in public it was a matter touching the king’s personal dignity, and not treasonous.  It was therefore referred to the king to see what he wanted to do about it, if anything.

Before the king could take the matter under consideration, Butler probably figured he was in a great deal of trouble for instigating a lot of fuss about nothing, and decamped for France.  The king told Fitzgerald to mind his tongue in the future, but otherwise go home and mind his own business.

I don’t recall how much trouble Butler got into for commencing what today would be called a frivolous lawsuit and opening himself up to a charge of malicious prosecution (and wasting Parliament’s and the king’s time), but it must have been a lot if he ran away to France, leaving his lands without the king’s permission.  I don’t recall that Butler forfeited his lands, but he could have for his stunt.

Of course, the Plantagenets were elected, not self-appointed as were the Tudors, and (usually) a bit less dictatorial.  A Plantagenet claimant to the throne had to present his case to Parliament, while the Tudors simply ordered Parliament to recognize them.  Richard III was, I believe, the last king of England actually to present his case to Parliament.

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