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This is the 5th extract from Our Corrupt Legal System, by legal historian Evan Whitton. Most of it will be new to almost everyone; law schools do not trouble future lawyers, judges, and lawyer-politicians with the origins of our system and that of the truth-seeking (investigative/inquisitorial) system. As an aid to victims of the our system, including taxpayers who fund it, the whole book can be downloaded free from netk.net.au/whittonhome.asp .

B. Origins of the two systems

3. Origin of the investigative system

A digest of Justinian’s codification of Roman Law, Corpus Juris Civilis, was discovered in Italy about 1070 and was studied by scholars at the West’s oldest university, Bologna, founded 1088.

Lotario de Conti di Segni, son of Count Trasimund of Segni and nephew of Pope Clement III, was born in 1160 or 1161. He studied theology at the University of Paris and jurisprudence – the philosophical basis of law – at the University of Bologna. Gregory VIII ordained him sub-deacon in 1187. Clement III made him a Cardinal in 1190.

Justice Ken Marks, of the Victorian Supreme Court, wrote in ‘Thinking up’ about the right of silence (1984) that Segni ‘devised inquisitional techniques [to investigate alleged clerical misbehaviour] in a series of decrees beginning in 1189-90’. Professor Richard Jackson, of Cambridge, wrote in The Machinery of Justice in England (seventh edition 1977):

[The] technique was to send a trusted person along to inquire into the allegations. This founded the inquisitorial concept of a trial, whereby the judge is expected to find out for himself what has happened, and he will do this by examining all persons, including the accused or suspected person, who may be able to enlighten him.

Pope Celestine III died, aged about 92, on 8 January 1198. Segni was elected Pope the same day and chose Innocent III as his papal name. He was zealous in extirpating simony, i.e. selling ecclesiastical office, the clerical equivalent of selling public offices in England.

Innocent’s term (1198-1216) was the high point of the papacy’s temporal power. He had authority over Sicily and was virtual lord of Christian Spain, Scandinavia, Hungary, and the Latin East. He made Frederick II German king and was overlord of England and Ireland.

On 19 April 1213, Innocent issued a papal Bull inviting spiritual and temporal princes to attend an ecumenical council in Rome in November 1215.

4. Magna Carta: a tax evasion scheme

Magna Carta is invoked to support all manner of legal claims, but it was essentially an attempt by the magnates to evade tax and dilute the power of the king. Arthur Marriott QC, of London, said in Breaking the Deadlock a lecture on international arbitration in Sydney in October 2005: ‘Magna Carta was of course a charter for the feudal aristocracy.’

Scutage was a tax in lieu of military service. When King (1199-1216) John insisted that magnates pay scutage when they refused service in France, the great men gathered outside London in June 1215, and demanded at sword-point that the king sign a charter. Some sections with comments:

Section 21: ‘Earls and barons shall not be amerced [fined] except through their peers.’ Peers were unlikely to order other peers to pay scutage.

Section 39: ‘No freeman shall be … imprisoned … except by the lawful judgment of his peers or by the law of the land’. Freemen owned freehold land and were one level below the magnates. They were unlikely to imprison their peers.

Section 40: ‘To no one will we sell, to no one will we refuse or delay, right or justice’. That tends to confirm that a bribe would buy justice, and a job as a judge.

To gain time, John signed the charter and then, as a vassal of Innocent, appealed to Rome. The Pope annulled the charter in August 1215 on the ground that John had signed under duress and without the Pontiff’s consent. The charter was thus in force for nine weeks.

5. The Fourth Lateran Council

Innocent III’s ecumenical council was a “glittering” church-state affair. Justice Ken Marks says it was attended by ambassadors from King John of England, the king of the Holy Roman Empire, Frederick II, King Philip II of France, the Latin Emperor of Constantinople, and the kings of Aragon, Hungary, Cyprus, and Jerusalem. Also present were 71 archbishops, 412 bishops, and 900 abbots and priors.

The conference is called the Fourth Lateran Council because it was the fourth ecumenical council held in the Lateran basilica. It began on 11 November 1215 and Innocent’s 70 canons (decrees) were approved by the end of the month. Canons 8 and 18 were the keys to the future of European law.

Canon 8 confirmed his investigative system of investigating clerical misbehaviour. It said superiors must ‘carefully inquire into the truth’ of the allegations. The suspect was to be allowed to defend himself in the presence of ‘the seniors of the church so that if they prove to be true, the guilty party may be duly punished without the superior being both accuser and judge in the matter’.

Canon 18 banned ‘any blessing’ by clerics to ‘judicial tests or ordeals by hot or cold water or hot iron’. That effectively ended trial by ordeal.

Temporal courts in Europe shortly adopted Innocent’s version of Roman law. The investigative system is now the most widespread system in the world, but few common lawyers have heard of Innocent or the Lateran Council. Innocent is not mentioned in Professor Baker’s Introduction to English Legal History, nor did he make the cut in US law professor Darien McWhirter’s The Legal 100: A Ranking of the Individuals Who Have Most Influenced the Law (Citadel, 1998).

Erle Stanley Gardner (1889-1970), a lawyer-novelist, was 99th in The Legal 100. His 80 Perry Mason books and television productions based on them give readers and viewers two quaint impressions:

1. All accused are innocent.

2. The truth of their innocence always emerges at trial.

Sir John Mortimer QC placed 100th. Despite his view that there is a gulf between law and reality, morality, and common sense, Rumpole gives the impression that justice somehow happens at trial.