US fatally persists with common law

This is the 10th 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.

The common law in England (and later its colonies) has been a racket of one kind or another since it began as an extortion racket in 1166. Extorting judges and their lawyer-bagmen formed a cartel.

A result is that common law judges have never been trained as judges separately from lawyers, as they are in Europe.

European countries adopted a truth-seeking (inquisitorial) system after a conference in 1215. English judges rejected that system in 1219.

Lawyer-politicians have been able to block change to a proper system since they became an oligarchy in Parliament about 1350.

A different kind of racket, the civil adversary system, dates from 1460, when lawyers versed in sophistry, a technique of lying, began to get control of pleadings. They were and are thus able to spin the process out and get more money from clients.

Chancery Court judges and lawyers began to collude to loot deceased estates from about 1650. Lord Chancellor (1718-25) Macclesfield extorted bribes worth c. £500,000 today from barristers who wanted to be Masters in Chancery in order to extort from litigants.

Billy Blackstone, a morally bankrupt charlatan, began the first law school at Oxford in 1758.

US fatally persists with common law

William Jefferson and other lawyers favoured changing to the pro-truth investigative system when the American colonies broke with England in 1776, but it seems that Blackstone fatally persuaded James Madison to persist with the common law. Madison was not a lawyer but he read law books, and in 1791 was largely responsible for the first eight amendments to the Constitution which are taken to be the Bill of Rights.

The Seventh Amendment says: ‘ … no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.’ That suggests that the common law applies only to appellate courts, and that lower courts could search for the truth. The Bill of Rights says nothing about the adversary system because lawyers did not admit it is a lawyer-run system until the mid-20th century.

Blackstone had repeated Justice Dyer’s 1568 lie that no one is compelled to accuse himself. Madison entombed that lie in the Constitution as the Fifth Amendment: ‘ … nor shall be compelled in any criminal case to be a witness against himself.’.
Jennens v Jennens (Jarndyce v Jarndyce)

The Sporting Magazine reported in 1794: ‘A water lawyer, or in plainer terms a shark, was caught last month near Workington.’ US law professor John Banzhaf said: ‘Like sharks smell blood, lawyers smell money.’

Judge-lawyer collusion on will cases continued in the Chancery Court. By 1800, the Chancellor was holding 6000 hearings a year [in which lawyers got paid from the estates rather than by clients], but finalising only about 60 cases, or 1%.

Sir Thomas Erskine May (1815-86), a barrister, described the reality of civil litigation at the start of the 19th century in Constitutional History of England Since the Accession of George III 1760-1860. The work appeared in 1861-63. Erskine May wrote:

Heart-breaking delays and ruinous costs were the lot of suitors. Justice was dilatory, expensive, uncertain and remote. To the rich it was a costly lottery; to the poor a denial of right, or certain ruin. The class who profited most by its dark mysteries were the lawyers themselves. A suitor might be reduced to beggary or madness, but his advisers revelled in the chicane and artifice of a lifelong suit and grew rich.

Jennens v Jennens, the model for Jarndyce v Jarndyce in Dickens’ Bleak House (1852-53), lasted several lifetimes. William Jennens, 97, an unmarried loan shark, was the richest commoner in England, worth about £500 million of our money. He went to a solicitor to make a will but forgot his spectacles, and the solicitor’s did not fit. He died a few days later, on Tuesday, June 19, 1798, the unsigned will in his pocket.

In a rational system, a judge would determine Jennens’ wishes by examining the solicitor and the will, and dispose of the case in an hour. But not in a system which insists that appearance trumps reality. Jane Mulvagh writes in Madresfield: The Real Brideshead (Black Swan 2009): ‘A will was found in his [Jennens’] coat pocket, sealed but not signed and therefore useless.’

Details of subsequent events are to a degree obscure. Mulvagh says part of the estate was shortly split between distant cousins in the Lygon (pron. Liggon), Andover and Curzon families, and that the Lygon share was ‘the equivalent in today’s terms of forty million pounds’. If the Andovers and Curzons got a similar amount, it would leave the equivalent of some £380 million today to be stolen by Chancery lawyers and judges.

Thirty-three successive Chancellors, beginning with Lord Loughborough in 1798, let Jennens run for 117 years. The second, Lord Eldon, kept lawyers at the trough for 25 years from 1801 with a break of a year in 1806. In 1822, he managed two lies in one sentence: ‘ … truth is best discovered by powerful statements on both sides of the question’.

Dickens was born in 1812. Jennens was still going when he died in 1870. It was not until 1915 that the Chancery vultures and/or water lawyers had totally ‘devoured’ the remainder of the estate, and the case ended.

A few things may be noted by way of footnotes to the Jennens saga. The Lygon share was the basis of a renewed fortune. Madresfield, the family seat, in the west midlands was extended and, in the time-honoured cash for honours way, Lord Lygon’s wife, Catherine, bribed George III with £10,000 (£10 million today) in 1815 to have her husband made Earl Beauchamp.

William Lygon, seventh Earl Beauchamp (1872-1938), was the Lord Lundy in one of Hilaire Belloc’s Cautionary Tales for Children (1907):

Sir! you have disappointed us!
We had intended you to be
The next Prime Minister but three:
The stocks were sold; the Press was squared:
The Middle Class was quite prepared.
But as it is! . . . My language fails!
Go out and govern New South Wales!”

The seventh Earl Beauchamp, 26, was a generally popular Governor of NSW from 1899, although some exception was taken to his remark about the ‘birthstain’ of the citizenry, a reference to the convict ancestry of most of the British invaders. Homesick, the Earl returned to England after 18 months in 1900. He was made Lord Warden of the Cinque Ports in 1914.

Evelyn Waugh (1903-66) became a pal of the seventh Earl’s son, Hugh Lygon (1904-36) at Oxford in 1922, and often visited him at Madresfield. Hugh and his father were homosexuals, which was then a crime.

The seventh Earl Beauchamp’s brother in law, the second Duke of Westminster (1879-1953), was a serial adulterer – one of his mistresses was the French courtesan and couturier, Gabrielle (Coco) Chanel (1883-1971) – and tax evader (see below, Larceny by trick).

In 1930, the Duke outed the Earl to King George V. George said: ‘I thought men like that shot themselves.’ The Earl went into exile. Hugh died when he fell out of a car in Bavaria and hit his head on the concrete.

In Waugh’s novel, Brideshead Revisited (1945), Brideshead is based on Madresfield, Lord Marchmain on the seventh Earl Beauchamp, and Lord Sebastian Flyte on Hugh.

Next. Bonaparte reforms the investigative system.