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by
William Shepherd
more on princes & their prerogativesThe importance of Machiavelli is less in the good sense or otherwise of what he said than in the fact that, like a bolt out of the blue beyond, his ideas contradicted hundreds, if not thousands, of years of accepted wisdom.
Machiavelli made a distinction between morality and statecraft, and from this deduced that a prince could violate moral law for state reasons. Salus reipublicae, suprema lex would lead inexorably to the idea that the state could make laws or orders that were contrary to the moral law. No small wonder that his writings are being pushed so assiduously at our younger scholars, without the historical context that would illuminate the revolution in jurisprudence that the acceptance of Machiavellian doctrines has effected between the Middle Ages and Modem Times.
By most of the modern world, law is understood in some variation of its Augustinian conception, as the command of a superior. According to this notion, that superior's authority is the sole criterion of a law's validity. Not the justice, fairness or wisdom of a law, but its enactment by competent authority, gives it its binding force. With this is bound up the concept of national sovereign power, responsible only to itself. In the Middle Ages things were seen very differently.
First of all, coming down from the antiquity of Northern European tribal society was the notion of the 'good old law', the traditional pattern of justice going back to ancestors who received it from the gods. This was the essence and basis of all laws, and the business of judges and legislators alike was to apply it to cases and circumstances as they came up.
There was no hard and fast distinction between legislation, which applied the ancient law to changing times, and judicial decisions, which applied it to individual cases. For it was beyond the right of any contemporary authority to make a completely novel law which transgressed the principles of immemorial custom. Revolutionary enactments were ipso facto null and void.
More sophisticated than this, and yet harmonising with it, was the theological-philosophical concept of natural law, derived in part from the Stoicism of the Roman legists, in part from the Judaeo-Christian concept of the unchanging law of God, to which human law must conform, if it is to bind the conscience. Like the good old law with which it could easily be identified once people accepted the Faith, this was the norm of positive law.
Thomas Aquinas was to maintain when he developed and codified earlier and less precise ideas, that all law stemmed from the 'lex aeterna', the principle by which God governed the creation, including man, and to which man's free will was expected to conform. It reached man in two forms, complementary and interpenetrating each other natural law, the part of the 'lex aeterna' which governed man's natural life and which he perceived by means of natural reason: and divine revealed law, which made known to Christians through faith the higher rules necessary for the supernatural life in Christ which would lead to the Beatific Vision.
By this double, but in no way contradictory standard, the validity of human positive laws, civil or ecclesiastical, was to be judged in a Christian community, while even in a pagan society natural law, so far as fallen man could accurately perceive it, regulated the enactments of rulers and was the norm by which the validity of their commands could be ascertained.
Twenty five years ago, Patrick Pottle and Michael Randle, with the help of a number of other people, including a man who subsequently became an Anglican priest in North London, considered that the forty-two year prison sentence meted out to George Blake was such an affront to human decency that they made common cause to effect his escape from custody. They were successful. The authorities, so obsessed with uncovering a KGB plot never gave a thought to the possibility that the release had been effected by nothing more sinister than a bunch of decent people, and failed to apprehend any of the conspirators.
However, Pottle and Randle then wrote a book describing their actions, were eventually arrested and were placed on trial before a jury of their peers. as is the English custom: The judge duly directed the jury to find the pair guilty on the grounds that there was not the slightest doubt, nor even any dispute, that they had done what they were accused of having done. Instead the jury delivered a verdict of not guilty and Patrick Pottle and Michael Randle are now once more free men.
The tabloid press and the self-styled quality newspapers pretended outrage at the frivolity of juries, the 'Daily Mail' even attributing false statements to Member of Parliament Rupert Allason in order to cloak its vitriol in respectability, and in so doing, either wittingly or unwittingly, displayed both their ignorance and their contempt for juries, jurisprudence and the good old law.
In 1670, Edward Bushell and eleven other jurors acquitted two Quakers of seditious assembly. They were promptly locked up for two days without food or water - a common practice up to then - to try and force them to reverse it into a guilty verdict. They insisted, however, on returning a verdict of not guilty, and took out a writ of Habeas Corpus that in turn was upheld by the Lord Chief Justice.
From then on, Machiavelli has been in retreat once again in the Land of Britons with jurors 'entitled' to return a verdict according to conscience. Understandably, since this entitlement represents a bulwark against the executive, the government of the day and the legal establishment are nervous of the jury's power. Furthermore, jurors are rarely reminded of this right in court either by the judge or by the prosecutor, who in English courts has the task, not of getting a prosecution, but of being the servant of justice.
Admittedly the peers in a jury will no longer be endowed with a peerless judgement. How could it be so when they no longer know the man, his family and the provocations or otherwise of his local society? And so justice, fairness and wisdom can hardly be guaranteed.
Nor can a jury's verdict be all things to all men. It was a jury, after all, which found George Blake to be guilty of treason. But upholding a jury's right to reach its own verdict in defiance of unpopular laws or unjustifiable prosecution is an essential part of English democracy. It derives from the good old law and this was given to men by the gods. It may not be perfect, but in comparison, surely Machiavelli's princely offering lies beyond the pale?
This article was first published in Fourth World Review #48 in the summer of 1991
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