Blawg Review #237 (The Putney Debates)

"Today's single most important political principle, the right to live in a participatory democracy, comes down to us not from the slave-owning societies of Athens and Rome, or from the pleasant estates in France where Rousseau and Montaigne envisioned the 'general will', but from buff-coated and blood-stained English soldiers and tradesmen."

Geoffrey Robertson QC in his wonderful book The Tyrannicide Brief thereby summed up the impact of a series of debates which took place at the end of the first English Civil War in a church in Putney from 28 October to 11 November 1647, with some breaks for vigorous helmet polishing and pike waving, between the so-called "grandees" of the Parliamentarian Army, Oliver Cromwell and his son-in-law Henry Ireton, and disgruntled soldiers' representatives [called the Levellers].

The Levellers were worried that the grandees were seeking an arrangement with the defeated and imprisoned "man of blood" Charles I which would see him back on the throne with his powers intact and them with very little to show for what the soldiers had suffered in the name of English liberty.

A soldier's lot is not a happy one and just as the army was more than disgruntled in the 1600s so the position has changed little today.

Guido Fawkes, who seems to have more readers than the whole of the rest of the UK blogosphere put together, features this quote from Iraq war hero Chris Finney who says:

"I have found the return to civilian life humbling. My George Cross counted for little when I tried to find a job in the middle of a recession. The usual grumbling by soldiers at the politicians who determine their fate has for me hardened into real anger. When I left the Army, I qualified for a resettlement allowance of just £500. In contrast, MPs who leave the Commons receive between 50% and 100% of their annual salary to help them 'adjust' to live outside Parliament. Where is the fairness in that?

"What makes me even more furious is the lack of respect shown by the Government to those who have paid the highest price and made the ultimate sacrifice: the war dead. Why is there no Minister in attendance when our fallen heroes from Afghanistan are brought home to repatriation ceremonies at Wootton Bassett in Wiltshire? I couldn't believe it when I read that Gordon Brown had phoned Simon Cowell to ask how Britain's Got Talent contestant Susan Boyle was when she had a breakdown. He doesn't phone any of the bereaved families. I thought that was absolutely disgusting, a real slap in the face for the parents of the hundreds of soldiers killed."

Obnoxio the Clown has similar sentiments in his posting "65th time unlucky" about a bomb disposal expert [otherwise known as a hero] whose luck ran out.

Unfortunately, as I am hosting this BlawgReview on my company's website, I can't directly quote from the posting here, but I couldn't agree more.

Reacting to the tragic shooting last week at an army base in Texas, by an army psychiatrist no less, Law and More asks if the family of Nidal Hasan [the shooter] can sue.

The Leveller soldiers only came armed to the debate with an incendiary pamphlet called "An Agreement of the people" - which amounted to a written constitution and stated "These things we declare to be our native rights (as) freeborn people of England" before detailing a seriers of five propositions [which I will consider below] - and argued vehemently for the vote to be given to any free-born englishman, while the King and House of Lords should be abolished as the only means with which to secure the country.

[Sorry but women (along with servants) were not considered capable of voting. Idealawg here reports that despite all the positive changes that have taken place since Putney it is still easier to get on as a woman in law if you have a male name]

References to unwritten or written constitutional rights can often find their ways into legal blog posts.

Such posts last week included those on Robert Ambrogi's Lawyer2Lawyer podcast discussing e-mail and the fourth amendment right to protection from unreasonable searches and seizures and Underdog on defending the right to free speech.

The Volokh Conspiracy posted on a controversial vote in Canada to restrict the right to bear guns here.

On the subject of the right to bear arms, I must link to the wonderful site that is Unsung Joe - a site that is dedicated to bit-part actors in old Hollywood films.

The posting I have linked to is to the story of Blackjack Ward, a genuine cowboy and extra in Westerns who shot a fellow cowboy in Hollywood and the resulting criminal trial.

The language of the witnesses is priceless:

"A wrestler known as Yukon Jake Jackson picked up the tale. "I heard the glass fly and the gravel kick up and I knew it was a bullet that just went by my kisser," he said. He hadn't been sure whether he was watching some sort of movie stunt or a dress rehearsal until the bullet smacked into the wall beside him. "Then I says, 'This is no picture. This is real.'" He called out, "Get for cover, men! Them's not blanks he's a-shootin'! Them's bullets!"

The political programme of the leading Levellers, such as John Lilburne [aka Freeborn John], John Wildman, Richard Overton and William Walwyn, also included annual elections, complete religious freedom, an end to the censorship of books and newspapers, trial by jury, and free trade.

Trade with China through joint ventures was the subject of China Law Blogs posting here while an antidote to business corruption in Russia was tackled on forwardmovement here.

"Free trade" can sometimes go too far though, as Eric Turkewitz on New York Personal Injury Law Blog here reports on a story about a drug wholesaler allegedly found peddling a mystery medicine as flu vaccine.

An attempt at modern censorship by a US educational software company which tried to forbid blogging about its allegedly abusive trademark litigation was featured on Consumer Law and Policy blog here.

Other intellectual property postings from last week include Ipso Jure on Lego and the delay caused by Christmas shelf-stacking to the litigation in Asda v Specsavers.

While a more insane piece of litigation was covered at IP Kat where website icanhascheezburger won a dispute with icanhazhotdog. [on a similar issue of insanity and animals please look at FU Penguin, in no way law-related but you still won't be disappointed]

The most famous [and sane] statement from the debates came from Colonel Thomas Rainsborough, who may never have even read a Leveller pamphlet but articulated their argument perfectly:

"For really I think that the poorest he that is in England hath a life to live, as the greatest he; and therefore truly, sir, I think it's clear, that every man that is to live under a government ought first by his own consent to put himself under that government; and I do think that the poorest man in England is not at all bound in a strict sense to that government that he hath not had a voice to put himself under."

Henry Ireton, for the 'Grandees' replied that such a course would lead to anarchy and that "no man hath a right to an interest or share in the disposing of the affairs of the kingdom... that hath not a permanent fixed interest in this kingdom."

A sentiment still prevalent today, as Housed, the UK blog about housing and the lack of, shows in a posting called If you're homeless and wonder why the Local Authority wont help you.

Another excellent UK law blog on such issues is NearlyLegal.

In a country where there is now one repossession every 11 and a half minutes both those blogs will have a lot more to blog about in the coming years.

Lawyers can take many different approaches to the "unpropertied" and homeless in society, as evidenced at LukeGilman.com with the story of a Houston lawyer who has been accused of "barratry" after he gave a homeless man some business cards to hand out [storm in a coffeecup to me].

In the US, Overlawyered features a story about a jury which has awarded $41,000 in damages to a homeless man who was shot by an Oregon State University fraternity member in 2006.

Above the Law's excellent series "Notes from the Breadline" about a laid off lawyer in New York continues.

Before the debates in Putney could conclude however the Army leadership became concerned about the growing Leveller fuelled discontent in the army and ordered the Levellers back to their regiments.

The King escaped from confinement and began the second civil war while Parliament locked up the Leveller leaders and burnt their pamphlets in public.

Perhaps they should have taken a leaf out of NegotiationLawBlog's book here in a posting "impatience key to effective mediation" or perhaps this advice at ConflictZen on negotiation tips for tough economic times.

Although I doubt any amount of mediation would have saved John Cooke, one of the very few lawyers brave enough to prosecute Charles I for "treason and high misdemeanours", and who, shortly before his quiet death by way of hanging drawing and quatering at the hands of Charles II, wrote to a friend:

"We fought for the public good and would have enfranchised the people and secured the welfare of the whole groaning creation, if the nation had not more delighted in servitude than in freedom."

"The ways of God's worship are not at all entrusted by us to any human power"

I am an atheist, unless I am ill with man-flu or desperately want something for Christmas, but this call for liberty of conscience in matters of religion, as the first of the five propositions contained in the Agreement, strikes a hearty chord.

In the wake of the relics of the "greatest modern saint" St Therese of Lisieux being paraded around the UK recently, John Bolch of Family Lore sounds the trumpet for evolution here after reading the Greatest Show on Earth by Richard Dawkins, but then gets sent into a paroxysm of incredulity when a God-bod in the UK government blames Dawkins for population decline here.

Lawiscool looks at the decision by a UK employment court to say that a belief in climate change is protected from discrimination under UK employment law here.

Questions of scientific belief exercised many of the UK bloggers last week after the government's drugs adviser Professor David Nutt was sacked for his opposition to government policy on the classification of cannabis.

Nutt, an expert, said that cannabis was clearly less harmful than alcohol and tobacco [yes, Charon QC even if you do do Smokedo] while Dear Gordon in 10 Downing Street said "Jings, crivens, help ma boab, there's a Nutt loose, aboot this hoose get him oot" [or words to that effect].

The Magistrates blog was pretty trenchant in support for Nutt here while Tom Harris MP went the opposite way here, and White Rabbit announced who the new drugs adviser will be here.

The Anonymous Prosecutor had fun pointing out in "Nutt sacked" that there is always a silver lining to these things "I'm sure the good doctor would agree that his career in government advising was not ended in vain, giving subs across the land a veritable pun-fest" - read more here.

A Public Defender wears his heart on his sleeve and tells us what he believes.

The Landlord and Buy to Let blog illustrates [using a rabbit] the dangers that investors face when they suspend belief.

The position of Catholics at the time of the debates was difficult and reading this from Lord Hylton at the Lords of the Blog I can see why:

"A key question for the reuniting of all baptised believers is how will "the primacy" of Bishop of Rome in practice be exercised ? This has so far been too little discussed. Many are hoping that it will be exercised in a collegial manner, as Vatican II laid down, when counter-balancing the Vatican I definition of papal infallibility.

"One is therefore bound to ask what consulting Pope Benedict did before making proposals to the Lefeverists, and before his recent invitation to Anglicans who wish to enter visible unity with the Roman Catholic communion?".

Now I don't have a clue what any of this means, and he does look like quite a nice chap in his picture [a bit like an off-duty Father Christmas] but this looks like sedition to me...

Our House of Lords has got very excited over the past few years about genetic science, but I dont think they have considered a question discussed at Genomics Law Report about how federal privacy law would handle data transfer in the event that a direct-to-consumer genetic testing company were to go bankrupt. Interesting stuff here.

The Crime and Federalism blog gives the Catholic Church a lashing for suing the City of San Francisco for hurt caused to Catholics' feelings in a posting entitled Catholicism succumbs to the culture of narcissism here.

So perhaps now might be a good time to turn pagan, as DoubleX here records the victory of the first openly pagan elected official in the US. The Norse gods seem to be the way to go. 

"Impressing and constraining any of us to serve in the wars is against our freedom"

Freedom from conscription might have wound-up someone of a sensitive disposition like Bitter Lawyer who rails here against "entitled, whiny pussies" in the legal world who cry out for work/life balance while earning $185k a year.

"Top firms used to be populated with ambitious, sleep-deprived deal junkies gunning for partner. Now they're overflowing with entitled, whiny pussies. Yes, pussies. And I mean that in a gender-neutral, non-sexual way. What I'm really saying is that I'm sick and tired of listening to a bunch of average, self-impressed, Ivy-credentialed BigLaw associates complain about their jobs - especially on websites like this one. Just today, a third-year corporate associate pulled me aside, his eyes misty with fatigue and stress. "I'm not sure if I can keep working at this pace," he said, on the verge of tears. I just looked at him and walked away."

BL has more than a point [for what else BL has we would have to talk to a doctor].

A "whiny pussy" associate then makes a good attempt at giving BL what for here.

So, like Oliver Cromwell, it is good to see that BL gives everyone a fair hearing - and then chops their heads off anyway.

The legal treadmill is also the theme for Defending People who asks Criminal defense lawyers: "which gerbil wheel would you rather be on?" here.

Iowa law school applicants last week

Clearly however there are many prospective gerbils out there with Above the Law reporting on applications to Iowa law school being "way up" here.

Read the Anonymous Lawyer for a very funny take on the great rewards that these gerbils can look forward to here.

Balkinization looks at the other end [side? curve? direction?] of the gerbil wheel where this lawyer here seems to be working 1,200 days a year, according to his bills.

The only army that I will ever allow myself to be conscripted into is that of Colonel Saunders and it looks like, according to Lowering the Bar here, that "the Grilled Nation" will soon be calling for volunteers to defend its borders.

"No person be at any time questioned for anything said or done in reference to the late public differences"

Three non-members of the blogging fraternity may be calling for a general amnesty similar to that called for in the Agreement this week.

University of Miami law professor Donald Jones perhaps unwisely filed a $44m lawsuit against Above the Law publisher David Minkin over previous blog posts about him.

However, a pretty large negative response to the claim [Notably The Volokh Conspiracy, and commenters on Overlawyered] ensued and the matter was subsequently voluntarily dismissed by Jones.

Just in time, as Legal Satyricon had, in the words of Oliver Cromwell, just "shaved my balls" and was about to open up "a can of whup ass" over Jones. [Legal Satyricon also gets the award for quote of the week "Alabama ... come for the incest. Stay for the morons"]

Following the dismissal, Above the Law have kindly offered Professor Jones a guest post on Above the Law in which to provide his side of the story, about either the lawsuit or the underlying facts.

Law and More welcomed the result here:

"That was less than 24 hours after the blosophere, especially the front-lines of legal digital media, went on steroids with this story. This viral messaging weighed in negatively against Jones. The arguments ranged from First Amendment rights to the stupidity of trying to allegedly reset search engines carrying the October 2007 ATL coverage by a lawsuit which would bring only more high-ranking posts on the search engines. It's obvious that ATL and its merry band of linkers have the Google Juice."

And on to our next 'victim' [who clearly deserves more opprobrium] detention officer [Beavis] who was filmed, during a sentencing hearing in a US County Superior Court, appearing to go through the file of a defence lawyer behind her back and lift a paper out of the file and hand it to a fellow officer [Butthead], who then walks off with it - in full view of the judge and prosecutors who appeared to do nothing to stop him. The video is simply incredible and can be viewed everywhere.

Again, we had a lot of the usual suspects weigh in on this one.

Nick Martin of Heat City broke the story and followed up, while Defending People here, and Simple Justice here gave all the miscreants (not just the security officers) a good kicking.

With the Victorious Opposition also getting in there - it turned into a pretty painful three-way for all concerned.

And finally, a lot of US Law Bloggers were discussing a Florida lawyer who is facing accusations that he may have looted as much as $500 million from investors in legal settlements.

Scott Rothstein has returned to Florida from Morocco after reportedly hinting of suicide in a text message.

The message allegedly read: "Sorry for letting you all down. I am a fool. I thought I could fix it but got trapped by my ego and refusal to fail and now all I have accomplished is hurting the people I love. Please take care of yourselves."

The story was all over the blogosphere with postings from Balkinization, the WallStreetJournal law blog and a great link-wrap by Kashmir Hill at Above the Law.

The story is wonderful, with armed police allegedly surrounding the law firms offices, but doesn't have quite the salacious edge of Althouse's story on sex with horses here. [Obviously not HERE - I mean on the Althouse website. But obviously not THERE but at a stables in South Carolina].

But before we all get hot and bothered, perhaps we should take a look at MyLawLicense post "what is your code of ethics" here.

"In all laws made or to be made, every person may be bound alike; and that no tenure, estate, charter, degree, birth, or place do confer any exemption from the ordinary course of legal proceedings whereunto others are subjected"

And so on to equality in the face of the law.

Even the CIA can be held to account as one of my favourite UK pamphleteers Geeklawyer recounted:

"There is news that 13 mem­ber of the infa­mous US state ter­ror­ist organ­i­sa­tion the CIA have been con­victed in absen­tia of kid­nap­ping an Ital­ian cit­i­zen in order to ren­dite him for tor­ture by Egypt­ian prox­ies. It raises the issue of whether or not these thugs will ever see jus­tice. The Amer­i­can Soci­ety for Inter­na­tional Law thinks not. Geeklawyer dis­agrees with their view that his abduc­tion was not kid­nap because the US Supreme Court requires there to be some ben­e­fit to the CIA agents them­selves, whether or not pecu­niary. Pre­sum­ably career enhance­ment is a ben­e­fit; and pre­sum­ably a suit­ably struc­tured argu­ment could be made that a ben­e­fit to a third party, the US, would also be an enabling ben­e­fit, for kid­nap def­i­n­i­tion purposes.

"In the UK, of course, none of this would mat­ter our own dear Neo-Labour would never pre­sume to ask our beloved US over­lords to extra­dite their cit­i­zens to Blighty. The con­verse, as Mck­in­non is find­ing out, is not true. Thanks to dear Brown-nosing war crim­i­nal Tony Blair, UK cit­i­zens will find them­selves extra­dited to the US for prac­ti­cally any­thing and with­out any­one hav­ing to prove there was any seri­ous alle­ga­tion at all."

The Volokh Conspiracy has something interesting things to say about the story.

Other items of interest about equality before the law can be found on Barrister Bard who begins a very entertaining post on jury trials with:

"I remember reading a ditty the other day: "See the happy moron, he doesn't give a damn, I wish I were a moron, My God perhaps I am," and my thoughts turned immediately to trial by jury, that perennial hoary chestnut."

The post was in response to a speech by Lord Judge, the Lord Chief Justice of England and Wales, where he warned that the jury system is threatened by the internet generation, who no longer get their information by listening to people speaking.

I can also recommend an inspiring post by Francis Gibb on former refugee Albie Sachs, who has just stepped down from South Africa's Constitutional Court, which warns of the dangers of detention without trial and can be found at the excellent Times Law Blog LawCentral.

And Family Fairness on what will the Affordable Healthcare for America Act do for LGBT families?.

While Lowering the Bar bids adieu to a guy who refused to marry interracial couple here. 

The essential Carl Gardner of HeadofLegal fame blogged here about a worrying proposal from think-tank Open Europe for the UK to opt-out of European equal pay laws. 

But just as there must be equality before the law, so must it be seen that there is equality before the law.

A brilliant courtroom witness can be found in the form of court reporter Ron Sylvester at Whatthejudgeateforbreakfast.

Ron Sylvester also tweets, as Rsylvester, the proceedings of criminal trials and he has produced a really interesting series of videos on the Wichita legal system.

Another recommendation for those who love a good criminal trial is Anothernickelinthemachine which is all about 20thCentury London trials, which could be described as colourful in the extreme.

Recent postings include "Chinatown, the death of Billy Carleton and the 'Brilliant Chang'" and "The Cafe de Paris, the Trial of Elvira Barney and the death of Snakehips Johnson".

Like the Unsung Joe I referred to earlier, the language of the time is brilliant. Well worth more than a look.

Law is Cool reports on a shocking confession last week that led to at least one lawyer having his "Perry Mason Moment" here. 

And on the subject of criminal trials, The Legal Theory Blog has an excellent link to the subject of free will in criminal trials here.

Whether freemasons are equal before the law is a question that has troubled many and Charon QC here discusses the decision, and much more besides [including cocks], of Jack Straw as Lord Chancellor to ensure that judges will not have to declare whether or not they are themselves Grand High Poobars before trying cases.

"As the laws ought to be equal, so they must be good and not evidently destructive to the safety and well-being of the people"

An interesting approach by Lord Norton of our House of Lords on how to tell a good law from a bad law on the Lords of the Blog site here: "A colleague came up with an interesting observation the other evening: "The longer the title, the worse the Bill." I can see a research project coming on..."

Charon QC has a great podcast here with Roger Smith, director of Justice, about the worrying extensions to the Proceeds of Crime Act and the erosion of human rights and civil liberties.

Journalistic grandee Roy Greenslade welcomed Argentina's decision to drop jail terms of libel here.

Good laws need good lawyers and even better judges, and Simple Justice reported on the ongoing saga of the Pennsylvanian judges who allegedly convicted up to 6,500 children in order to accept kickbacks from the owner and builder of two juvenile prison centres.

Words fail me, but not Simple Justice here.

One of the biggest cases last week in the US was the Supreme Court case concerning prosecutional immunity.

The Wallstreet Journal blog got into it here by asking:

"may a defendant sue a prosecutor for actions he or she may have taken during the scope of the prosecution?

"The issue fell before the Supreme Court on Tuesday, in a case called Pottawattamie County v. McGhee. The case involves two former Pottawattamie County, Iowa, prosecutors being sued by Curtis W. McGhee Jr., and Terry Harrington, both of whom were convicted of first-degree murder and sentenced to life in prison in 1978 for the death of retired police officer John Schweer.

"The men were released from prison after 25 years, after the Iowa Supreme Court found that the prosecution had failed to disclose exculpatory evidence to the defense."

As you would imagine the Scotus blog got in there too as did Bad Lawyer.

DWI lawyer Tyler Flood was reported as saying this in the Houston Press last week:

"Listen, most of the people we get off are intoxicated. But that's the justice system. ... I've always thought people would be very concerned if they knew what we were doing."

And fellow Houston lawyer Mark Bennett on Defending People gives it to him with both barrels in a great rant about what this guy appears to have just done to his own reputation, as well as the presumption of innocence.

Charon QC hopes to ensure greater access to free online legal resources with an ongoing project here and gets into the law business and the business of law here.

Also interesting is John Flood's Random Academic Thoughts which has launched a new online law journal called Jotwell that he is editing at which you will find leading academics and practitioners providing short reviews of recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience.

Here is a useful link from onlineuniversities.com for 50 great blogs for and by law professors.

While Slaw provides a colourful way to describe the "growing disconnect" in finding legal information "as like trying to find a piece of hay in a haystack". See here
and below.

But do we even care? Spare a thought for Drug and Device Law who posted this time last week:

"We must be pretty poor bloggers. Our throwaway piece on there not being mousepads in hotel rooms drew (for us) a record 3500+ hits last Friday, courtesy of links from Above the Law and Instapundit. That's second only to Wyeth v. Levine. And it generated over 1000 hits on Saturday and another 800+ on Sunday - both records for those days of the week.

"Newsflash: more people care about mousepads than about drug and medical device product liability litigation. What does that say about what we do for a living? About our chosen topic? About us? Don't answer that last one - we get enough comments along those lines from our families and coworkers (we won't even mention our friends)."

But take heart guys from these wise words of the indefatigable, immutable and completely original Freeborn John Lilburne in "England's New Chains Discovered" written in March 1649:

"Our cause and principles do through their own natural truth and lustre get ground in men's understandings so that though we fail, our truths prosper. And posterity we doubt not shall reap the benefit of our endeavours."

And on the subject of truth prospering Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues here.

Photo of Putney Church and inscription by Jim Linwood via Flickr.

Photo of bears bearing guns by Rainmaker via Flickr.

Photo of Lego Norse Gods and CIA rendition by Andrew Becraft via Flickr.

Photo of gerbil wheel by Gwen Lopez via Flickr.

Photo of Freemason stuff by Steve Brace via Flickr.