This is the ninth extract from Our Corrupt Legal System: Why Everyone Is A Victim (Except Rich Criminals) by legal historian Evan Whitton [ netk.net.au/whittonhome.asp ].
The story so far.
English common law began in 1166 in a culture of total corruption. Extorting judges and their lawyer-bagmen formed a cartel. European countries adopted a truth-seeking (inquisitorial) system after a conference in 1215. English judges rejected the inquisitorial system in 1219. It has been impossible to change to a truth-seeking system since lawyers became the “dominant interest” in Parliament about 1350. The civil adversary system dates from 1460, when lawyers versed in sophistry, a technique of lying, began to get control of pleadings. The cartel stole from deceased estates from about 1650.
A glorious lawyer-driven revolution
Sir John Evelyn (1620-1706) recorded in his diary (published 1818-19) of 26 November 1686 that four senior members of the cartel, including Lord Chancellor (1685-89) George Jeffreys (1644-89), admitted to systematic theft from clients. Evelyn wrote:
I din’d at my L. Chancelors, where being 3 other Serjeants at Law, after dinner being cherefull and free, they told their severall stories, how long they had detained their clients in tedious processes, by their tricks, as if so many highway thieves should have met and discovered the severall purses they had taken. But God is not mocked.
In 1688, lawyers in Parliament organised the overthrow of the monarch, James II, and the installation of a Dutch king. Professor Theodore Plucknett said: ‘It was the common lawyers who were mainly instrumental in making parliamentary supremacy a fact.’
A Whig conspirator in the overthrow, John Locke (1632-1704), justified the treason in Two Treatises of Government (1690). The second, which continues to have a profound effect in the United States, said citizens have certain natural rights, including a sacred right to property, and that governments which do not protect those rights can legitimately be overthrown. Since no government can protect every right, including the right not to be lied to, Locke supplied a pretext for any usurpation, at home or abroad.
The overthrow of the monarchy was called a ‘Glorious Revolution’, perhaps because organised criminals among the Whig oligarchs who ran Britain for much of the 18th century rightly anticipated making glorious sums of money. In English Society in the Eighteenth Century (Penguin, 1982), historian Roy Porter noted some of their techniques:
Offices could be traded … Many offices further allowed the incumbent to take commissions from contractors, to accept doucers, and handle astronomical sums of public money, with which they would play the Exchange privately for the duration … The Paymaster Generalship made the fortunes of Marlborough, Cadogan, Amherst, Sir Robert Walpole, Bubb Dodington, Henry Fox, James Brydges and others. Brydges [first Duke of Chandos] cleared £600,000 [c. £60 million today] from his tenure of office between 1705 and 1713.
None of those white collar organised criminals was hanged. Jonathan Wild (1682?-1725) was. A blue collar organised criminal, he ran a gang of thieves, took his share of the proceeds, informed on gang members for the reward, and was hanged in 1725. Wild lives on in thinly-disguised portraits of Walpole in John Gay’s Beggars’ Opera (1728), Henry Fielding’s The History of Jonathan Wild the Great (1743), and The Threepenny Opera, by Kurt Weill and Bertolt Brecht (1928).
Walpole (1676-1745), Prime Minister 1715-17 and 1720-42, said of politicians: ‘All these men have their price.’ The Duke of Newcastle (Thomas Pelham-Holles, 1693-1768), was the oligarchy’s bagman from 1724-62. He was Prime Minister 1754-56 and 1757-62. Most judges were former Whig politicians. Justice James Thomas wrote:
An analysis of appointments between 1714 and 1760 shows that approximately 77 per cent of the Chief Justices and senior appointees to the Bench were members of Parliament … For the majority of this period, one or other of Robert Walpole and the Duke of Newcastle was involved in nearly all senior judicial appointments and many of the junior ones.
Thomas Parker, Lord Macclesfield (1666?-1732), a Whig, was Lord Chancellor 1718-25. He extorted bribes of £5000 [c. £500,000 today] from barristers who sought appointment as Masters in Chancery The Oxford Book of Legal Anecdotes (OUP 1986) records an account by Theobald Mathew (1866-1939) of the case of a barrister, Francis Elde, who had to use a clothesbasket to convey the bribe to Lord Macclesfield and his bagman, Master Peter Cottingham:
Anxious to be appointed, Mr Elde saw the Lord Chancellor himself, who was even more delicate than Mr Cottingham. Lord Macclesfield said he thought Mr Elde would make a good officer, and asked Mr Elde to consider of it. Mr Elde considered of it accordingly for two days, and then returned to say that ‘if his Lordship would admit him he would make him a present of £5000.’ To this Lord Macclesfield virtuously replied: ‘You and I must not make bargains.’ A few days later Mr Elde met Cottingham. Cottingham, when told of his offer of £5000 to Lord Macclesfield, significantly rejoined: ‘Guineas are handsomer.’ Determined to secure the office, Mr Elde repaired to his chambers, found a clothes-basket, placed in it 5000 guineas in cash and notes, handed it to Mr Cottingham at the Lord Chancellor’s house, saw Mr Cottingham carry it upstairs, was invited to dine by the Lord Chancellor, and was sworn in after dinner. Some months later his basket was returned to him but, added Master Elde, with no money in it.
Following an inquiry, Lord Macclesfield resigned in January 1725 and was impeached (accused) in May 1725. He was found guilty and fined £30,000 (c.£3 million today). He paid the fine in six weeks.
Justice James Thomas said William Murray, Lord Mansfield (1705-93), was ‘another senior judge of this period who was trained in the service of the Whig oligarchy and continued to be closely involved in government after he was elevated to the bench’. Mansfield became a Serjeant and Lord Chief Justice in 1756. He sat in corrupt Cabinets, where he favoured coercing American colonists, until 1774, and remained an active politician until 1784.
Judges were still extorting bribes from barristers in return for legal office in 1810.
Origin of law schools
For the first six centuries of the common law, senior lawyers ran legal education on an apprenticeship basis. It must have been rather like Mr Alphonse Capone mentoring promising thugs. In 1753, William Blackstone (1723-80), began lecturing at Oxford on what purported to be the common law. Charles Viner (1678-1756) used the copyright to his Abridgment of Law and Equity (23 vols, 1742-53) to endow a common law chair, scholarships and fellowships at Oxford. Blackstone became the first Vinerian professor in 1758. Law schools followed at Cambridge in 1800, Harvard in 1817, and Sydney in 1855.
Blackstone was a fat, near-sighted charlatan with a grating voice and a fondness for port. As a former trial lawyer, he must have known that the common law held that truth does not matter; that liars controlled the civil process and were beginning to appear in the criminal courts; that judges were untrained and mostly corrupt; and that the Chancery Court, for one, was a criminal enterprise. Blackstone said none of that; he said the law was ‘dictated by God Himself’. That would mean the deity does not care for morality, but Blackstone meant the system is incapable of fundamental error. His successors have dutifully adhered to that line.
Jeremy Bentham (1748-1832) was a child prodigy who went to Oxford at 12, got a bachelor’s degree at 15, a master’s at 18, and was called to the Bar at 21. He heard Blackstone lecture and judged him to be defective. He saw in Blackstone a ‘spirit of obsequious quietism’ which ‘scarce ever let him recognise a difference’ between what the law is and what it should be.
Professor Plucknett kindly said Blackstone lacked ‘excessive learning’; that he regarded ‘legal history as an object of “temperate curiosity” rather than exact scholarship’; that his ‘equipment in jurisprudence was also somewhat slender’; and that he was led ‘to tolerate’ the system by a ‘romantic fancy’ which compared ‘it to a picturesque old Gothic castle’.
Blackstone published his lectures as Commentaries on the Laws of England in four volumes from 1765 to 1769. Jeremy Bentham described the work as ‘ignorance on stilts’, but fairy tales are popular: sales of the book in Britain and America made Blackstone’s fortune. He was made a judge in 1770.
Lawyers like to quote Blackstone’s assertion: ‘Under our system of justice, it is better that 10 guilty men go free than that one innocent man be convicted.’ That provided an excuse to help the new breed of criminal defence lawyer with a series of get-the-guilty-off devices. Thomas Starkie, a Cambridge academic, improved on Blackstone in 1824. He said: ‘The maxim of the law … is that it is better that 99 … offenders shall escape than that one innocent man be condemned.’ The reality today is that in 100 cases up to five innocent men are convicted and more than 50 guilty men escape justice. Truth-seeking systems are much better at both.
Blackstone’s successors have generally adopted a posture of ostrichism about the system’s history and vices, but some ease their consciences by writing papers critical of an aspect of the system (but not the system as a whole or its basis), safe in the knowledge that judges and trial lawyers will ignore the papers and they will be unintelligible to the public. As St Paul almost said, academics discussing justice are but as sounding brass or tinkling cymbals.
Next. US fatally persists with common law. Jennens v Jennens (Jarnydyce v Jarndyce)
• Phil Patterson, in Comments: Ha! I’ve practiced as a lawyer in one capacity or another for over a decade, having come to the law late in life. In every legal job I ever held as a lawyer, in both public and private sectors (including the department of the country’s first law officer), I encountered colleagues routinely engaged in misconduct and serious misconduct; including the commission of indictable criminal offences. The fact of the frequency of this behaviour led me to the point where my experience of the legal fraternity (and the public service) was poisoned. I took to studying ethics, and last year wrote a Masters thesis on the inevitability of the resort to deceit by those who have otherwise taken an oath to uphold the law. It is a fiction that lawyers (or public servants, for that matter) are capable of faithfully conforming to their statutory obligations to conduct themselves honestly, but that fiction continues to be pointed to as the justification for their position in society. Show me a lawyer, I’ll show you a liar.
