This is the fourth extract from Our Corrupt Legal System, by legal historian Evan Whitton. Much of it will be new to lawyers, including academics and judges: law schools do not teach much legal history. The book can be downloaded free from netk.net.au/whittonhome.asp
Organised criminals start common law
The British and European systems are different because of accidents of history. At the crucial moments in the 13th century, organised criminals ran the British system and the master of Europe was a quite upright churchman.
In Organized Crime and American Power: A History (University of Toronto Press, 2001), British historian Michael Woodiwiss defines organised crime as ‘systematic criminal activity for money or power’. He says the definition applies to the powerful and respectable as well as the Mob. A criminal enterprise is the vehicle through which organised crimes are committed. For instance, the Cook County court system was the vehicle through which Chicago judges systematically extorted bribes from accused late in the 20th century. Lawyers and court officials were the judges’ bagmen.
Woodiwiss notes that in 1930 Raymond Moley said Europe’s feudal system was ‘a good deal of a [protection] racket’. Lords extorted goods and services from peasants in return for ‘protection against other plundering lords and vagabonds’. Woodiwiss says ‘William of Normandy did most to establish such a system in early Britain.’
Richard Condon said modern man thinks money brings power. Medieval man knew power brings money. William I (1027-87) and his son, William II (c.1056-1100), had standard medieval minds. After William I’s 6500 Norman mercenaries defeated King Harold’s 7000 troops at Hastings in 1066, William franchised 90 per cent of the country to 300 favourites, and established a property system based on trickle-down extortion.
The 300 ‘magnates’ or ‘great men of the realm’ were part-time judges and full-time organised criminals. They franchised land to freemen and extorted goods and services from them; extorted from merchants travelling through their land; and ‘sometimes led or employed bands of brigands to plunder towns and villages’. The freemen in turn franchised land to its original owners and extorted from them.
The British Empire was a criminal enterprise based on theft of land, and later of human beings. The empire dates from 1072, when William I compelled the Scottish King, Malcolm III, to do him homage. It expanded to South Wales in 1079, to Ireland in 1172, and to Virginia in 1607. Britain then developed a triangular trade in goods and slaves between Africa, America and England.
Britain was always as corrupt as any country in Europe, if not more so, and incomparably the best at what Harvard ethicist Arthur Applbaum calls a ‘strategy of redescription’. Bribes and/or extortions were redescribed as gifts, presents, favours, patronage, doucers, commissions, gratuities, honoraria, unofficial taxes, kickbacks. The colonies learned well: bribes are juice in California, ice in Florida, grease in New York.
King (1087-1100) William II institutionalised organised crime in the trade of authority. History professor John Gillingham, of the London School of Economics, noted in The Oxford History of Britain vol II The Middle Ages (OUP 1992) that William II put every public office, from Chancellor down, on sale, and the buyer in turn extorted bribes from people who had to deal with the office. The Chancellor was head of Chancery, the royal secretariat, and hence a sort of mediaeval Prime Minister. The Chancery also became a court late in the 14th century, and some Chancellors continued their corruption into the 20th century.
The common law and the jury system are held to date from the Assize of Clarendon in 1166, during the reign of Henry II (1133-89, monarch 1154-89). When a crime was reported, 12 neighbours were asked to use local knowledge to suggest a suspect. This offered the chance to blacken an enemy. The trial was still by ordeal and a deity still gave the verdict.
The common law is judge-made law as opposed to statute law, and is common to the whole country. Henry II began the practice of sending judges out to make the whole country subject to common rather than local law in 1166. In the culture of the time, justices in eyre, i.e. travelling judges, were more inclined to extort bribes than to deliver justice. Cambridge law professor J. H. Baker (Sir John, as he became in 2003) (b. 1944) wrote in An Introduction to English Legal History (Third Edition Butterworth 1990):
The general eyres begat fear and awe in the entire population. The justices did not always proceed according to modern standards of probity or fairness … we read of complaints that the eyre of 1198 reduced the whole kingdom to poverty from coast to coast … Counties might pay heavy fines for lenient treatment, or even buy off an eyre altogether.
2. The legal cartel begins
British judges and lawyers were first professionalised, i.e. paid, towards the end of the 12th century. Professor Theodore Plucknett, of the London School of Economics, says in A Concise History of the Common Law (fifth edition Butterworths 1956) that lawyers were first paid when they appeared in a new civil court (later called the Court of Common Pleas) set up by Henry II in 1178. They received clients at particular pillars in the courts at Westminster Hall, a section of Westminster Palace, the king’s residence.
Professor J. H. Baker says in An Introduction to English Legal History (third edition, Butterworths 1990) that judges were paid by 1200 and ‘England possessed from an early date a bench and bar united by their membership of a common profession’. Adam Smith (1723-90), spiritual father of the greed is good business theory, said in Inquiry into the Nature and Causes of the Wealth of Nations (1776): ‘People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices’.
Chief Judge Richard Posner, a Chicago economist and appellate judge, wrote in Overcoming Law (1995):
The legal profession in its traditional form is a cartel of providers of services related to society’s laws … The history of the legal profession is to a great extent, and despite noisy and incessant protestation and apologetics, the history of all branches of the profession, including the professoriat [from the late 18th century] and the judiciary, to secure a lustrous place in the financial and social-status sun.
Members of a cartel collude to further their interests, including maximising profits, typically by adding 25% to the price of an item. The legal cartel’s additions to the price of ‘justice’ are incalculable.
In view of the total corruption in the trade of authority when the lawyer-judge cartel began to operate, it can be assumed that its aims included getting their share of the graft, and that judges used lawyers as cut-outs or bagmen, as Chicago judges did quite recently.
It can also be assumed that the cartel aimed to arrange the system in ways which would increase business for lawyers. Charles Dickens, who worked for a law firm when he was 16, observed in Bleak House (1853): ‘The one great principle of the English law is to make business for itself.’ Today, large law firms calculate ‘profit per partner’.