Corruption in the Chancery Court

This is the eighth 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.

Corruption in the Chancery Court

In cases of disputed wills in the Chancery court, lawyers were paid, not by clients, but from the deceased estates. From at least 1650 to early in the 20th century, the court was a criminal enterprise involving elements of the cartel. The sole Chancery judge, the Chancellor, was a curiosity. Until 2003, he was at once head of the judiciary and a politician, with a seat in Cabinet. Professor John Baker wrote:

For two centuries before Dickens wrote Bleak House [i.e. from about 1650], the word ‘Chancery’ had become synonymous with expense, delay and despair; throughout the 17th and 18th centuries 10,000 to 20,000 cases were pending, and the time taken to dispose of them could be as long as 30 years … Two distinguished chancellors [Bacon 1621, Macclesfield 1725] were dismissed for accepting ‘presents’ … Gold or silver could open paths through the Chancery morass.

Tulkinghorn, the pseudonym of a lawyer who writes for Justinian, extracted some of the details from historian David Lemmings’ Professors of the Law (OUP, 2000). This excerpt from Tulkinghorn’s Justinian piece on 30 March 2007 appears here with his permission:

‘Australian history professor David Lemmings wrote: “There are substantial grounds for suspicion that the eighteenth century Chancery was operating an elaborate racket in the administration of the law, which amounted to a conspiracy for making the most out of a declining source of work.”

‘He backs up his suspicion with many pages of evidence in his book … leaving one in no doubt. Charles Dickens, writing in the 1850s, made it quite clear that his novel Bleak House, which exposed the Chancery racketeering, was grounded in fact.

‘In England, from 1580 to 1640, there was a civil litigation boom. Litigation lawyers charged reasonable fees, typically less than 10 per cent of the amount at stake. In 1640 there were about 29,000 cases in “advanced stages” in the national courts.

‘The boom was followed by a long “bust”, which cannot be blamed on the English civil war, but on a policy adopted by the leading litigation lawyers. They would not meet the market any more. They would focus on cases that could support higher fees, and then find ways to extract those fees. Successful lawyers still operate on that principle today.

‘By 1750 increased fees had dramatically reduced the supply of willing civil litigants, and the number of cases being actively pursued was a sixth of the 1640 figure. However, the number of lawyers had not gone down, and the total amount of litigation activity being generated by that reduced number of cases, and the amount of legal fees being paid, had actually gone up. Seventy-five per cent of the barristers of England, faced with declining work in Kings Bench and Common Pleas, had turned to the Chancery Court (which dealt with deceased estates) and became litigational racketeers.

‘By 1800 the Court of Chancery was finalising only 30-90 cases a year, but creating 5,000 to 7,000 “hearings” per year. Chancery judges were obviously in on the racket, and all judges would have known about it. Payment came from the assets of the deceased estates.’

[Dickens’ Jarndyce v Jarndyce in Bleak House was based on an actual case, Jennens v Jennens, which ran from 1798 to 1915. Jennens is discussed in a later extract from Our Corrupt Legal System.]

Origin of the criminal adversary system

Lawyers tend to prate about their sacred obligation to defend criminals, but accused were on their own for more than five centuries after the common law began in 1166. The only people at a criminal trial were the accused, his (private) accuser, their witnesses, the judge, and the jurors.

It is said that lawyers were not allowed in the criminal courts, but they had enough power to get control of civil evidence; if they wanted to defend criminals, judges would not have stopped them.

The reality is that criminal work was not a business proposition. The Scandalum Magnatum protected wealthy white collar organised criminals from being accused, and ordinary criminals were not rich. Jeremy Bentham said: ‘ … plunderable matter was seldom to be found’ in the purses of accused. Professor Stephan Landsman said: ‘Not even the judges, who received sizable fees in civil litigation, could hope to profit from the criminal docket.’

Trade in goods and slaves made England rich and populous in the 17th century. London’s population is estimated to have tripled, from 200,000 to 600,000, between 1600 and 1700. Unrespectable organised crime followed; lawyers discovered a tender care for the rights of accused.

Lawyers began to appear in criminal courts after a 1692 Act offered a reward of £40 (c. £4000 today) for information leading to the conviction of highway robbers and other thieves. Trial lawyers easily exposed those who made false accusations to get the £40, but they did not appear in numbers until the end of the 18th century.

Research on Old Bailey trials by University of Toronto law professor John M. Beattie showed that lawyers appeared in 2.1% of trials in the 1770s, 20.2% in 1786, and 36.6% in 1795. Since 1790, judges have agreed to a series of anti-truth devices which make it relatively easy to get rich criminals off.

Next: How lawyers overthrew the monarchy; 18th century political and judicial corruption

All the extracts are collected under the Evan Whitton Category: HERE