Whitton: Origins of the two systems

Evelin Sullivan wrote in The Concise Book of Lying (Picador, 2002): ‘The liar’s intention is to make others believe what the liar knows to be untrue … the motive is to gain something by doing so.’ US lawyer Charles P. Curtis wrote in The Ethics of Advocacy (1951): ‘ … one of the functions of a lawyer is to lie for his client … He is required to make statements as well as arguments which he does not believe in.’ Evelin Sullivan wrote:

Lawyers have been notorious for duplicity, if not bald-faced deception, for so long that the lying lawyer is a cliché even for those people – a happy lot – who have not required their services … Ask the man in the street (or the woman) whether lawyers ever lie, and the answer is likely to be: ‘This is a joke, right?’

Lawyers have been trying to make others believe what the lawyers know to be false for at least 2500 years, since the Sophists showed Athenian lawyers how to ‘make the worst appear the better reason’, and were denounced by Socrates as morally bankrupt and by Plato as charlatans.

David Pannick QC wrote in Advocates (OUP 1992): ‘The central objection to advocacy … is that expressed by Socrates: that oratory is employed in the service of evil and so impedes the punishment of wrongdoing.

Billy Flynn (Richard Gere), the ‘greasy Mick lawyer’ in the film, Chicago (2002), called lying tap-dancing. He reminded film critic Joel Siegel (1943-2007), of an old joke: ‘It’s only the 99% of lawyers who give the rest a bad name.’ The bad name actually comes largely from the 40% who are trial lawyers. The other 60% may be really nice persons who would never tell a lie or pervert justice.

One of the really nice lawyers, Chaz Wannon, gave me some lawyer jokes. One was: How do you save a lawyer from drowning? Chaz said: ‘Shoot him before he hits the water.’ In this book, ‘lawyers’ generally refers to certain trial lawyers.

A truth-seeking system thus keeps lawyers on a tight leash. Roman law sought the truth – however shakily – and judges controlled the process, but the Columbia Encyclopaedia (Fifth Edition, 1993) says it was ‘confused, contradictory or redundant’. Roman law was not codified.

The West Roman Empire collapsed in 476 when Odoacer’s Goths deposed the last Emperor, Romulus Augustulus. Roman law disappeared in West Europe for more than seven centuries (and in England forever) but continued in the East Roman (Byzantine) Empire.

A Byzantine emperor, Justinian (482-565, Emperor 527-65), instructed Tribonian and other lawyers to codify Roman law. They completed the Corpus Juris Civilis (the law of the people) in 535. It remained in use in the Byzantine Empire until superseded by Islamic (Sharia) law after Constantinople (formerly Byzantium) fell to the Ottoman (Turkish) Empire in 1453.

Western Europe and England meanwhile regressed to mumbo jumbo during the Dark Ages (c.476-750) and until relatively late in the Middle Ages (c.750-1453). The Judicium Dei (Judgment of God) was an accusatorial (prove it) system: A accused B; B said: Prove it; an inscrutable deity gave the verdict.

The form of trial varied. The most convenient for accused was the wager (contract/oath) of law. For example, a person accused of not paying a debt could swear he had repaid it.

When the deity did not strike him down, he was clearly telling the truth. In serious cases, he could produce character witnesses (compurgators) prepared to swear his oath could be trusted. The modern equivalent of the wager of law is self-regulation. An accused cleric had to swallow food containing a feather. If he choked on the ‘cursed morsel’, he was guilty.

The Judgment of God included such barbaric ordeals as walking on hot ploughshares, carrying a hot iron for nine feet, and taking a stone out of boiling water. Three days later, an expert inspected the damage and interpreted the deity’s verdict.

In ‘swimming a witch’ (trial by cold water), the accused was trussed and thrown in a stretch of water blest by a priest. If the water ‘received’ her, i.e. she sank, she was not a witch. If the water ‘rejected’ her, i.e. she floated, she was a witch, and was fished out and hanged or burned to death. Alleged witches were swum and hanged in England as late as 1647, and 20 were hanged in Salem, Massachusetts, in 1692.

The Church opposed trial by ordeal from the time of Agobard, Bishop of Lyons (d. 840), on the ground that it was naughty to tempt the deity, but the spectacle was too exciting to be successfully proscribed.

William the Conqueror, King of England 1066-87), introduced trial by battle also known as the wager of battle, trial by combat, and the judicial duel. Accuser and accused swore they were telling the truth and then fought a duel. The deity ensured that the winner was the one in the right. The loser, if still alive, was hanged.

Accused women and children were allowed to hire a professional ‘champion’ to do the duelling. I asked Sir John Mortimer QC in 2001 where the adversary system came from. He said it began with trial by battle. In fact, it began four centuries later.

Trial by ordeal nominally ended in England in 1219 but some aspects, e.g. swimming a witch, persisted in isolated cases. In 1817, a judge thought Trial by Battle was still available. He allowed Abraham Thornton to get off a murder charge when the accuser did not pick up a gauntlet thrown down by Thornton. Parliament had to legislate to repair the judge’s error.

Evan Whitton is a legal historian, a species pretty much extinct, like the pig-footed bandicoot. This is from his fourth book on the law, Our Corrupt Legal System. The book quotes more than 300 lawyers and judges each of whom had a piece or pieces of the jigsaw. In the public interest, the book can be downloaded free from netk.net.au/whittonhome.asp, and extracts can be republished gratis.