INVENTING FREEDOM:
HOW THE ENGLISH-SPEAKING PEOPLES MADE THE MODERN WORLD (New York: Harper
Collins, 2013) by DANIEL HANNAN
Rev. by Hugh Murray
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.
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