"There is always a philosophy for lack of courage."—Albert Camus

Friday, April 28, 2017

Have I Got A Sweet Deal For You ...

Are you a law student in desperate search of an interesting topic for a note? … Or, are you a fundamentally burned out and deeply disappointed legal academic tired of writing papers lacking relevance and resonance—papers which no one reads—papers which are never cited and are soon forgotten? … Because if so, have I got a sweet deal for you. You can have this idea—with no money down, and at no cost to you. But you will want to post your work-product on SSRN or otherwise publish prior to May 26, 2017.

In regard to Citizens for Responsibility and Ethics in Washington v. President Donald J. Trump, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y. Jan. 23, 2017) (Abrams, J.), 2017 WL 277603, I have written:

In regard to the Presidential Emoluments Clause, where the federal government or a state government engages in a business transaction with a private commercial entity owned (in whole or in significant part) or controlled (in whole or in significant part) by the President of the United States (in his private capacity), but not with the President, it is not clear that such a transaction falls under the aegis of the Presidential Emoluments Clause. Indeed, no court of the United States (of which the Author is aware) has had occasion to resolve this novel threshold question of pure law. This issue must be resolved in any litigation seeking to assert that the Presidential Emoluments Clause applies to such business transactions with commercial entities affiliated with the President.

Much the same can be said in regard to the Foreign Emoluments Clause. No court of the United States (of which the Author is aware) has had occasion to determine whether a foreign state owned or foreign state controlled commercial entity is a “foreign state” for the purposes of the Foreign Emoluments Clause. This is a novel threshold question of pure law which must be resolved in any litigation seeking to assert that the Foreign Emoluments Clause applies to business transactions between a constitutionally proscribed federal officeholder (i.e., an officer . . . under the United States) and a foreign state owned or foreign state controlled commercial entity. Similarly, where a foreign state engages in a business transaction with a private commercial entity owned (in whole or in significant part) or controlled (in whole or in significant part) by a constitutionally proscribed federal officeholder (in his private capacity), but not with the officeholder, it is not clear that such a transaction falls under the aegis of the Foreign Emoluments Clause. Indeed, no court of the United States (of which the Author is aware) has had occasion to resolve this novel threshold question of pure law. This too must be resolved in any litigation seeking to assert that the Foreign Emoluments Clause applies to business transactions between private commercial entities owned or controlled by a constitutionally proscribed federal officeholder and a foreign state. Finally, where a transaction has a commercial entity on both sides, as opposed to an actual foreign state and an actual constitutionally proscribed federal officeholder, the policy concerns animating the Foreign Emoluments Clause must be much attenuated.[1]

Feel free to agree; feel free to disagree. Feel free to contact me for advice. But do get cracking because the clock is ticking … and if you do not act now, someone else is liable to make use of that golden ticket.

PS: Don’t forget to address local government too! Plaintiff writes: “Just as the Foreign Emoluments Clause bars payments not only from foreign states, but also their subdivisions and instrumentalities, the Domestic Emoluments Clause bars payments not only from the federal government and state governments, but also their respective instrumentalities and subdivisions. The Supreme Court has long viewed local governments as ‘mere[]. . . departments’ of the state. Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 362 (2009).” You cannot make this stuff up.


Seth Barrett Tillman, Have I Got A Sweet Deal For You …, The New Reform Club (Apr. 28, 2017, 8:07 AM), http://tinyurl.com/lw5ek5u  

[1] Seth Barrett Tillman, Business Transactions and President Trump’s “Emoluments” Problem, 40 Harv. J.L. & Pub. Pol’y (forthcoming), https://ssrn.com/abstract=2957162. See generally, e.g., David B. Rivkin Jr. & Lee A. Casey, Opinion Editorial, It’s unrealistic and unfair to make Trump use a blind trust, The Washington Post, Nov. 22, 2017, tinyurl.com/ljrudrm

Wednesday, April 26, 2017

So Much Winning! -- Over 28,000 Impressions on Twitter

Glenn Reynolds, JEWISH WOMAN BOOED IN GERMANY, Instapundit (Apr. 26, 2017, 1:20 PM), https://pjmedia.com/instapundit/263452

Best Comment: http://disq.us/p/1i65vy7 


Sunday, April 23, 2017

A Bibliography on the Foreign Emoluments Clause

Tillman’s journal articles discussing the Foreign Emoluments Clause and the terms “office” and “officer” as used in the Constitution include:

(a) Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5(1) Br. J. Am. Leg. Studies 95–121 (2016) (peer reviewed), http://ssrn.com/abstract=2679512;
(b) Seth Barrett Tillman, Why Professor Lessig’s “Dependence Corruption” Is Not a Founding-Era Concept, 13(2) Election L.J. 336–45 (2014) (peer reviewed), http://ssrn.com/abstract=2342945;
(c) Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59–126 (2014) (invited contribution), http://ssrn.com/abstract=2484377;
(d) Seth Barrett Tillman, Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination, 61 Clev. St. L. Rev. 285–356 (2013), http://ssrn.com/abstract=1622441;
(e) Seth Barrett Tillman, Closing Statement, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U. L. Rev. Colloquy 180–208 (April 2, 2013), http://ssrn.com/abstract=2012803;[1]
(f) Seth Barrett Tillman, Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U. L. Rev. 399–421 (2012), http://ssrn.com/abstract=2182078;
(g) Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y 107–41 (2009); 4 Duke J. Const. L. & Pub. Pol’y Sidebar 1–34 (2008), http://ssrn.com/abstract=1099355;
(h) Seth Barrett Tillman, Opening Statement, Why President-Elect Obama May Keep His Senate Seat After Assuming the Presidency, in Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134, 135–40 (2008), http://ssrn.com/abstract=1292359;[2] and,
(i) Seth Barrett Tillman, Closing Statement, An “Utterly Implausible” Interpretation of the Constitution: A Reply to Professor Steven G. Calabresi, in Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134, 146–53 (2008). http://ssrn.com/abstract=1292334.[3]

Tillman’s lesser publications on these subjects include:

(a) Zephyr Teachout & Seth Barrett Tillman, Common Interpretation—The Foreign Emoluments Clause: Article I, Section 9, Clause 8, in The Interactive Constitution (National Constitution Center 2016), http://tinyurl.com/jxro4o9;
(b) Seth Barrett Tillman, Matters of Debate—The Foreign Emoluments Clause Reached Only Appointed Officers, in The Interactive Constitution (National Constitution Center 2016), http://tinyurl.com/zgbdtso;
(c) Seth Barrett Tillman, Room for Debate, Constitutional Restrictions on Foreign Gifts Don’t Apply to Presidents, The NY Times, Nov. 18, 2016, 10:41 AM, http://tinyurl.com/jpbhom5;
(d) Seth Barrett Tillman, Letter to the Editor, Oath of Officers, 15(3) Claremont Review of Books 11, Summer 2015, http://ssrn.com/abstract=2623473;
(e) Seth Barrett Tillman, Member of the House of Representatives and Vice President of the US: Can Paul Ryan Hold Both Positions at the Same Time?, Jurist–Forum, Aug. 23, 2012, http://jurist.org/forum/2012/08/seth-barrett-tillman-vice-presidency.php;
(f) Seth Barrett Tillman, Loyola University of Chicago Law School’s Annual Constitutional Law Colloquium, Six Puzzles for Professor Akhil Amar (Nov. 1, 2013), http://ssrn.com/abstract=2173899;
(g) Seth Barrett Tillman, Novel Questions of Pure Law and DiscoveryThe New Reform Club (Mar. 27, 2017, 6:58 AM), http://tinyurl.com/lpjudfk;
(h) Seth Barrett Tillman, Business Transactions For Value Are Not “Emoluments”The New Reform Club (Mar. 19, 2017, 3:15 AM), http://tinyurl.com/kos696z;
(i) Seth Barrett Tillman, The Presidential Compensation Clause & Trump’s “No New Deals” MottoThe New Reform Club (Dec. 22, 2016, 9:10 AM), http://tinyurl.com/z8nu44g; and,
(j) Seth Barrett Tillman, Congressional Research Service Issues Revised Guidance on the Foreign Emoluments ClauseThe New Reform Club (Dec. 1, 2016, 1:09 AM), http://tinyurl.com/hfezaef.

Addendum: Accepted Paper: Seth Barrett Tillman, Essay, Business Transactions and President Trump’s “Emoluments” Problem, 40(3) Harv. J.L. & Pub. Pol’y (forthcoming circa 2017–2018), https://ssrn.com/abstract=2957162. 

For responses to Tillman’s publications see generally: 

(a) Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure, Titles of Nobility and the Foreign Emoluments Clause–§ 9.18 n.12 (5th ed. Supp. 2017);
(b) William Baude, Constitutional Officers: A Very Close Reading, Jotwell (July 28, 2016) (peer reviewed) (reviewing Tillman’s publications on “office” and “officer”), http://tinyurl.com/kv6kdun;
(c) Steven G. Calabresi, Rebuttal, Does the Incompatibility Clause Apply to the President?, in Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134, 141-45 (2008), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1294671;
(d) Steven G. Calabresi, Closing Statement, A Term of Art or the Artful Reading of Terms?, in Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134, 154-59 (2008), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1294671;
(e) Saikrishna Bangalore Prakash, Response, Why the Incompatibility Clause Applies to the Office of President, 4 Duke J. Const. L. & Pub. Pol’y 143 (2009); 4 Duke J. Const. L. & Pub. Pol’y Sidebar 35 (2008), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1557164;
(f) Zephyr Teachout, Rebuttal, Gifts, Offices, and Corruption, 107  
Nw. U. L. Rev. Colloquy 30 (2012), http://www.northwesternlawreview.org/online/gifts-offices-and-corruption;
(g) Zephyr Teachout, Closing Statement, Constitutional Purpose and the Anti-Corruption Principle, 108  Nw. U. L. Rev. Online 200 (2014), http://ssrn.com/abstract=2383385;
(h) Zephyr Teachout, Matters of Debate—The Foreign Emoluments Clause, in The Interactive Constitution (National Constitution Center 2016), http://tinyurl.com/lxdjjl2; and,

(i) Zephyr Teachout, Room for Debate, Trump’s Foreign Business Ties May Violate the Constitution, The NY Times, Nov. 17, 2016, 5:06 PM, http://tinyurl.com/l8qma26


Citation: Seth Barrett Tillman, A Bibliography on the Foreign Emoluments ClauseThe New Reform Club (Apr. 23, 2017, 4:27 AM), http://tinyurl.com/m4v4rfo

[1] Northwestern University Law Review Colloquy has been renamed Northwestern University Law Review Online.
[2] University of Pennsylvania Law Review PENNumbra has been renamed University of Pennsylvania Law Review Online.
[3] Id

Saturday, April 22, 2017

"The more effectually to ensnare the people"

 "You may not be interested in law, but law is interested in you." —Leon Trotsky *
* Well, no, Trotsky didn't quite say that. The quote attributed to him says "war," not "law." But Trotsky didn't say "war" either -- he said "dialectic," a word whose meaning takes a lawyer's skill to twist and torture it into something resembling "war." But I am fairly certain misquoting a misquote is not actionable. And if it is, well, that's what the asterisk's for.

But the misquote is no less true for being misquoted, and and the derivative misquote might be truer still. To follow the law one must follow news about the law. And that is becoming harder every day. Lawmakers pass new and exciting laws with great regularity. But "lawmakers" is itself an elastic term needing a watchful eye. What we used to mean by the word was legislature: a bunch of people who stand for regular elections who meet in a capitol building. It was a tidy term that allowed us cracks like Twain's "No man's life, liberty, or property is safe while the legislature is in session," or Adams's "one useless man is a shame, two is a law firm, and three or more is a Congress," or Scalia's that "Congress...does not, one might say, hide elephants in mouseholes."

But legislatures and Congresses are like the old major television networks: we now have as many mini-legislatures in agencies and bureaus and commissions as we have cable and internet streaming media services, publishing more laws than the legal consumer could binge-read in a lifetime. Mandatory references in the CFR alone -- "shall," "must," "prohibited," etc. -- number over a million. Legacy legislators could never have produced content in such volumes, let alone review them. "The legislator," said the father of legislative reference work, Charles McCarthy, "is a busy man; he has no time to read."

And that is before we get to the court reporters published by our judiciary. To avoid what strikes their consciences as unhappy results, judges replace those of our rules that are perfectly understandable under mountains of abstruse exceptions.** This often seems unnecessary: the insurance policy that strict rules take out against their negative consequences is predictability -- clarity is the only premium they charge. When the legal system stops paying that premium, the coverage lapses, and the only predictability that remains is that we shall be ruled by a majority of robed persons.

The 18th century English jurist William Blackstone once remarked:
"In this country we do not tolerate criminal statutes like those of the emperor Caligula, who wrote his laws in very fine print and displayed them high on tall pillars, 'the more effectually to ensnare the people.'"
But the sentiment is, sadly, an anachronism. We moderns write very fine laws indeed, and stack them high as the sun.

Let us welcome, then, the robust use of the Congressional Review Act, the law that gives Congress the authority to overrule regulations by the alphabet-soup lawmaking agencies, bureaus, and commissions. Congress will need to stack the repeal bills high -- the ABCs have a big head start.

** Take a perfectly fine legalistic doctrine: the judicial admission. A judicial admission is a statement of fact supporting your case made to the court in such an unguarded, unequivocal way that you're stuck with it for the duration of the case -- the other party is entitled to use it against you. So if you say you told your neighbor to return your lawnmower by no later than the following Saturday to establish he wrongfully withheld possession, and he comes back that you waited beyond the statute of limitations to bring an action, you can't turn around and say you only just discovered the wrongful possession. At least, that's the way it's supposed to work.

My law partner and I just won an appeal of a judgment given on a missing promissory note -- the trial judge could not shake the belief that a note is more like a contract than a check, and since you don't need the original wet-signature contract to enforce it, it shouldn't be a big deal the plaintiff can't find the original note. (Ever give a bank a photocopy of a check, expecting, without irony, to walk out with cash? Me neither.) The most vexing part was the plaintiff, God bless him, adopted the theory that the note never existed, and the parties intended to enforce the $15 million deal on a handshake. We stood up to move for nonsuit so fast I thought our heads would pop off. But ultimately we had to appeal the judgment.

We prevailed on other grounds, and while I hate to look a gift horse in the mouth, the reviewing court continued to disappoint any expectations that there is such a thing as a judicial admission. The current trend, it appears, is that there is not unless it is counter-admitted -- that is, it is not an admission at all, but a stipulation.


Tim KowalTimothy M. Kowal is a civil litigator specializing in
trespass, land use, and business litigation.
You can contact Tim at (714) 641-1232 or tkowal@tvalaw.com.

Thursday, April 20, 2017

49 Years Ago Today: Enoch Powell, Address to the General Meeting of the West Midlands Area Conservative Political Centre (Birmingham, UK Midland Hotel, April 20, 1968)

The supreme function of statesmanship is to provide against preventable evils. In seeking to do so, it encounters obstacles which are deeply rooted in human nature.

One is that by the very order of things such evils are not demonstrable until they have occurred: at each stage in their onset there is room for doubt and for dispute whether they be real or imaginary. By the same token, they attract little attention in comparison with current troubles, which are both indisputable and pressing: whence the besetting temptation of all politics to concern itself with the immediate present at the expense of the future.

Above all, people are disposed to mistake predicting troubles for causing troubles and even for desiring troubles: “If only,” they love to think, “if only people wouldn’t talk about it, it probably wouldn’t happen.”

Perhaps this habit goes back to the primitive belief that the word and the thing, the name and the object, are identical.

At all events, the discussion of future grave but, with effort now, avoidable evils is the most unpopular and at the same time the most necessary occupation for the politician. Those who knowingly shirk it deserve, and not infrequently receive, the curses of those who come after.

A week or two ago I fell into conversation with a constituent, a middle-aged, quite ordinary working man employed in one of our nationalised industries.

After a sentence or two about the weather, he suddenly said: “If I had the money to go, I wouldn’t stay in this country.” I made some deprecatory reply to the effect that even this government wouldn’t last for ever; but he took no notice, and continued: “I have three children, all of them been through grammar school and two of them married now, with family. I shan’t be satisfied till I have seen them all settled overseas. In this country in 15 or 20 years’ time the black man will have the whip hand over the white man.”

I can already hear the chorus of execration. How dare I say such a horrible thing? How dare I stir up trouble and inflame feelings by repeating such a conversation?

The answer is that I do not have the right not to do so. Here is a decent, ordinary fellow Englishman, who in broad daylight in my own town says to me, his Member of Parliament, that his country will not be worth living in for his children.

I simply do not have the right to shrug my shoulders and think about something else. What he is saying, thousands and hundreds of thousands are saying and thinking—not throughout Great Britain, perhaps, but in the areas that are already undergoing the total transformation to which there is no parallel in a thousand years of English history.

In 15 or 20 years, on present trends, there will be in this country three and a half million Commonwealth immigrants and their descendants. That is not my figure. That is the official figure given to parliament by the spokesman of the Registrar General’s Office.

There is no comparable official figure for the year 2000, but it must be in the region of five to seven million, approximately one-tenth of the whole population, and approaching that of Greater London. Of course, it will not be evenly distributed from Margate to Aberystwyth and from Penzance to Aberdeen. Whole areas, towns and parts of towns across England will be occupied by sections of the immigrant and immigrant-descended population.

As time goes on, the proportion of this total who are immigrant descendants, those born in England, who arrived here by exactly the same route as the rest of us, will rapidly increase. Already by 1985 the native-born would constitute the majority. It is this fact which creates the extreme urgency of action now, of just that kind of action which is hardest for politicians to take, action where the difficulties lie in the present but the evils to be prevented or minimised lie several parliaments ahead.

The natural and rational first question with a nation confronted by such a prospect is to ask: “How can its dimensions be reduced?” Granted it be not wholly preventable, can it be limited, bearing in mind that numbers are of the essence: the significance and consequences of an alien element introduced into a country or population are profoundly different according to whether that element is 1 per cent or 10 per cent.

The answers to the simple and rational question are equally simple and rational: by stopping, or virtually stopping, further inflow, and by promoting the maximum outflow. Both answers are part of the official policy of the Conservative Party.

It almost passes belief that at this moment 20 or 30 additional immigrant children are arriving from overseas in Wolverhampton alone every week—and that means 15 or 20 additional families a decade or two hence. Those whom the gods wish to destroy, they first make mad. We must be mad, literally mad, as a nation to be permitting the annual inflow of some 50,000 dependants, who are for the most part the material of the future growth of the immigrant-descended population. It is like watching a nation busily engaged in heaping up its own funeral pyre. So insane are we that we actually permit unmarried persons to immigrate for the purpose of founding a family with spouses and fianc├ęs whom they have never seen.

Let no one suppose that the flow of dependants will automatically tail off. On the contrary, even at the present admission rate of only 5,000 a year by voucher, there is sufficient for a further 25,000 dependants per annum ad infinitum, without taking into account the huge reservoir of existing relations in this country—and I am making no allowance at all for fraudulent entry. In these circumstances nothing will suffice but that the total inflow for settlement should be reduced at once to negligible proportions, and that the necessary legislative and administrative measures be taken without delay.

I stress the words “for settlement.” This has nothing to do with the entry of Commonwealth citizens, any more than of aliens, into this country, for the purposes of study or of improving their qualifications, like (for instance) the Commonwealth doctors who, to the advantage of their own countries, have enabled our hospital service to be expanded faster than would otherwise have been possible. They are not, and never have been, immigrants.

I turn to re-emigration. If all immigration ended tomorrow, the rate of growth of the immigrant and immigrant-descended population would be substantially reduced, but the prospective size of this element in the population would still leave the basic character of the national danger unaffected. This can only be tackled while a considerable proportion of the total still comprises persons who entered this country during the last ten years or so.

Hence the urgency of implementing now the second element of the Conservative Party’s policy: the encouragement of re-emigration.

Nobody can make an estimate of the numbers which, with generous assistance, would choose either to return to their countries of origin or to go to other countries anxious to receive the manpower and the skills they represent.

Nobody knows, because no such policy has yet been attempted. I can only say that, even at present, immigrants in my own constituency from time to time come to me, asking if I can find them assistance to return home. If such a policy were adopted and pursued with the determination which the gravity of the alternative justifies, the resultant outflow could appreciably alter the prospects.

The third element of the Conservative Party’s policy is that all who are in this country as citizens should be equal before the law and that there shall be no discrimination or difference made between them by public authority. As Mr Heath has put it we will have no “first-class citizens” and “second-class citizens.” This does not mean that the immigrant and his descendent should be elevated into a privileged or special class or that the citizen should be denied his right to discriminate in the management of his own affairs between one fellow-citizen and another or that he should be subjected to imposition as to his reasons and motive for behaving in one lawful manner rather than another.

There could be no grosser misconception of the realities than is entertained by those who vociferously demand legislation as they call it “against discrimination”, whether they be leader-writers of the same kidney and sometimes on the same newspapers which year after year in the 1930s tried to blind this country to the rising peril which confronted it, or archbishops who live in palaces, faring delicately with the bedclothes pulled right up over their heads. They have got it exactly and diametrically wrong.

The discrimination and the deprivation, the sense of alarm and of resentment, lies not with the immigrant population but with those among whom they have come and are still coming.

This is why to enact legislation of the kind before parliament at this moment is to risk throwing a match on to gunpowder. The kindest thing that can be said about those who propose and support it is that they know not what they do.

Nothing is more misleading than comparison between the Commonwealth immigrant in Britain and the American Negro. The Negro population of the United States, which was already in existence before the United States became a nation, started literally as slaves and were later given the franchise and other rights of citizenship, to the exercise of which they have only gradually and still incompletely come. The Commonwealth immigrant came to Britain as a full citizen, to a country which knew no discrimination between one citizen and another, and he entered instantly into the possession of the rights of every citizen, from the vote to free treatment under the National Health Service.

Whatever drawbacks attended the immigrants arose not from the law or from public policy or from administration, but from those personal circumstances and accidents which cause, and always will cause, the fortunes and experience of one man to be different from another’s.

But while, to the immigrant, entry to this country was admission to privileges and opportunities eagerly sought, the impact upon the existing population was very different. For reasons which they could not comprehend, and in pursuance of a decision by default, on which they were never consulted, they found themselves made strangers in their own country.

They found their wives unable to obtain hospital beds in childbirth, their children unable to obtain school places, their homes and neighbourhoods changed beyond recognition, their plans and prospects for the future defeated; at work they found that employers hesitated to apply to the immigrant worker the standards of discipline and competence required of the native-born worker; they began to hear, as time went by, more and more voices which told them that they were now the unwanted. They now learn that a one-way privilege is to be established by act of parliament; a law which cannot, and is not intended to, operate to protect them or redress their grievances is to be enacted to give the stranger, the disgruntled and the agent-provocateur the power to pillory them for their private actions.

In the hundreds upon hundreds of letters I received when I last spoke on this subject two or three months ago, there was one striking feature which was largely new and which I find ominous. All Members of Parliament are used to the typical anonymous correspondent; but what surprised and alarmed me was the high proportion of ordinary, decent, sensible people, writing a rational and often well-educated letter, who believed that they had to omit their address because it was dangerous to have committed themselves to paper to a Member of Parliament agreeing with the views I had expressed, and that they would risk penalties or reprisals if they were known to have done so. The sense of being a persecuted minority which is growing among ordinary English people in the areas of the country which are affected is something that those without direct experience can hardly imagine.

. . . .

The other dangerous delusion from which those who are wilfully or otherwise blind to realities suffer, is summed up in the word “integration.” To be integrated into a population means to become for all practical purposes indistinguishable from its other members.

Now, at all times, where there are marked physical differences, especially of colour, integration is difficult though, over a period, not impossible. There are among the Commonwealth immigrants who have come to live here in the last fifteen years or so, many thousands whose wish and purpose is to be integrated and whose every thought and endeavour is bent in that direction.

But to imagine that such a thing enters the heads of a great and growing majority of immigrants and their descendants is a ludicrous misconception, and a dangerous one.

We are on the verge here of a change. Hitherto it has been force of circumstance and of background which has rendered the very idea of integration inaccessible to the greater part of the immigrant population—that they never conceived or intended such a thing, and that their numbers and physical concentration meant the pressures towards integration which normally bear upon any small minority did not operate.

Now we are seeing the growth of positive forces acting against integration, of vested interests in the preservation and sharpening of racial and religious differences, with a view to the exercise of actual domination, first over fellow-immigrants and then over the rest of the population. The cloud no bigger than a man’s hand, that can so rapidly overcast the sky, has been visible recently in Wolverhampton and has shown signs of spreading quickly. The words I am about to use, verbatim as they appeared in the local press on 17 February, are not mine, but those of a Labour Member of Parliament who is a minister in the present government:

‘The Sikh communities’ campaign to maintain customs inappropriate in Britain is much to be regretted. Working in Britain, particularly in the public services, they should be prepared to accept the terms and conditions of their employment. To claim special communal rights (or should one say rites?) leads to a dangerous fragmentation within society. This communalism is a canker; whether practised by one colour or another it is to be strongly condemned.’

All credit to John Stonehouse for having had the insight to perceive that, and the courage to say it.

For these dangerous and divisive elements the legislation proposed in the Race Relations Bill is the very pabulum they need to flourish. Here is the means of showing that the immigrant communities can organise to consolidate their members, to agitate and campaign against their fellow citizens, and to overawe and dominate the rest with the legal weapons which the ignorant and the ill-informed have provided. As I look ahead, I am filled with foreboding; like the Roman, I seem to see “the River Tiber foaming with much blood.”

That tragic and intractable phenomenon which we watch with horror on the other side of the Atlantic but which there is interwoven with the history and existence of the [United] States itself, is coming upon us here by our own volition and our own neglect. Indeed, it has all but come. In numerical terms, it will be of American proportions long before the end of the century.

Only resolute and urgent action will avert it even now. Whether there will be the public will to demand and obtain that action, I do not know. All I know is that to see, and not to speak, would be the great betrayal.

Seth Barrett Tillman, 49 Years Ago Today: Enoch Powell, Address to the General Meeting of the West Midlands Area Conservative Political Centre, The New Reform Club (Apr. 20, 2017), http://tinyurl.com/knw5y2c

“Si monumentum requiris, circumspice”—If you are searching for his monument, look around ...

There was a saying, not heard today so often as formerly…

What do they know of England who only England know?”

It is a saying which dates. It has a period aroma, like Kipling’s Recessional or the state rooms at Osborne. That phase is ended, so plainly ended, that even the generation born at its zenith, for whom the realisation is the hardest, no longer deceive themselves as to the fact. That power and that glory have vanished, as surely, if not as tracelessly, as the imperial fleet from the waters of Spithead.

And yet England is not as Nineveh and Tyre, nor as Rome, nor as Spain. Herodotus relates how the Athenians, returning to their city after it had been sacked and burnt by Xerxes and the Persian army, were astonished to find, alive and flourishing in the blackened ruins, the sacred olive tree, the native symbol of their country.

So we today, at the heart of a vanished empire, amid the fragments of demolished glory, seem to find, like one of her own oak trees, standing and growing, the sap still rising from her ancient roots to meet the spring, England herself.

Perhaps, after all, we know most of England “who only England know”.

So the continuity of her existence was unbroken when the looser connections which had linked her with distant continents and strange races fell away. Thus our generation is one which comes home again from years of distant wandering. We discover affinities with earlier generations of English who felt no country but this to be their own. We discover affinities with earlier generations of English who felt there was this deep this providential difference between our empire and those others, that the nationhood of the mother country remained unaltered through it all, almost unconscious of the strange fantastic structure built around her—in modern parlance “uninvolved”.

Backward travels our gaze, beyond the grenadiers and the philosophers of the 18th century, beyond the pikemen and the preachers of the 17th, back through the brash adventurous days of the first Elizabeth and the hard materialism of the Tudors and there at last we find them, or seem to find them, in many a village church, beneath the tall tracery of a perpendicular East window and the coffered ceiling of the chantry chapel.

From brass and stone, from line and effigy, their eyes look out at us, and we gaze into them, as if we would win some answer from their silence. “Tell us what it is that binds us together; show us the clue that leads through a thousand years; whisper to us the secret of this charmed life of England, that we in our time may know how to hold it fast.”

What would they say?

They would speak to us in our own English tongue, the tongue made for telling truth in, tuned already to songs that haunt the hearer like the sadness of spring. They would tell us of that marvellous land, so sweetly mixed of opposites in climate that all the seasons of the year appear there in their greatest perfection; of the fields amid which they built their halls, their cottages, their churches, and where the same blackthorn showered its petals upon them as upon us; they would tell us, surely of the rivers the hills and of the island coasts of England.

One thing above all they assuredly would not forget; Lancastrian or Yorkist, squire or lord, priest or layman; they would point to the kingship of England, and its emblems everywhere visible.

They would tell us too of a palace near the great city which the Romans built at a ford of the River Thames, to which men resorted out of all England to speak on behalf of their fellows, a thing called ‘Parliament’; and from that hall went out their fellows with fur trimmed gowns and strange caps on their heads, to judge the same judgments, and dispense the same justice, to all the people of England.

Symbol, yet source of power; person of flesh and blood, yet incarnation of an idea; the kingship would have seemed to them, as it seems to us, to express the qualities that are peculiarly England’s: the unity of England, effortless and unconstrained, which accepts the unlimited supremacy of Crown in Parliament so naturally as not to be aware of it; the homogeneity of England, so profound and embracing that the counties and the regions make it a hobby to discover their differences and assert their peculiarities; the continuity of England, which has brought this unity and this homogeneity about by the slow alchemy of centuries.

For the unbroken life of the English nation over a thousand years and more is a phenomenon unique in history, the product of a specific set of circumstances like those which in biology are supposed to start by chance a new line of evolution. Institutions which elsewhere are recent and artificial creations appear in England almost as works of nature, spontaneous and unquestioned.

From this continuous life of a united people in its island home spring, as from the soil of England, all that is peculiar in the gifts and the achievements of the English nation. All its impact on the outer world in earlier colonies, in the later Pax Britannica, in government and lawgiving, in commerce and in thought has flowed from impulses generated here. And this continuing life of England is symbolised and expressed, as by nothing else, by the English kingship. English it is, for all the leeks and thistles grafted upon it here and elsewhere. The stock that received all these grafts is English, the sap that rises through it to the extremities rises from roots in English earth, the earth of England's history.

We in our day ought well to guard, as highly to honour, the parent stem of England, and its royal talisman; for we know not what branches yet that wonderful tree will have the power to put forth.

The danger is not always violence and force; them we have withstood before and can again.

The peril can also be indifference and humbug, which might squander the accumulated wealth of tradition and devalue our sacred symbolism to achieve some cheap compromise or some evanescent purpose.

EP 1961


Citation: Seth Barrett Tillman, “Si monumentum requiris, circumspice”—If you are searching for his monument, look around ..., The New Reform Club (Apr. 20, 2017), http://tinyurl.com/kdhjtdg