This is the 13th 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 its colonies) began as an extortion racket in 1166. Bribe-extorting judges and their lawyer-bagmen formed a cartel to increase profits. Common law judges have never been trained as judges; they are lawyers who practise sophistry, a technique of lying, one day and judges the next.

Justice means fairness; fairness and morality require a search for the truth, otherwise the wrong side may win; truth means reality, what actually happened. European judges adopted a truth-seeking system after 1215. English judges rejected it in 1219.

Lawyer-politicians have been able to block change to a truth-seeking system since they became an oligarchy in Parliament about 1350. (Vote 1: Anyone but a lawyer.)

The adversary system is a racket. The civil version dates from 1460, when lawyers began to take control of evidence, spin the process out and extract more money from clients.

In the 17th century, lawyers and Chancery Court judges began to conspire to steal from deceased estates. Jennens v Jennens concerned an estate originally worth $1.5 billion today. It ran from 1798 until the remnants were “totally devoured” in 1915.

Legal academics joined the cartel after Billy Blackstone, a barrister, began the first law school at Oxford in 1758.

From 1800, Napoleon reformed the truth-seeking system. It is now the most widespread and important system in the world. We would probably have that system if Admiral Villeneuve had followed Napoleon’s instructions in 1805

Judicial corruption in our system

USA. English historian Michael Woodiwiss defines organised crime as systematic criminal activity for money or power. He said ‘the US legal and criminal justice systems were set up in ways that showed a great deal of latitude to certain kinds of organised criminal activity’, in particular organised crime conducted by powerful and respectable industrialists.

Those largely responsible, with their positions in Professor McWhirter’s Legal 100 in brackets, were William Blackstone (13), John Locke (16), James Madison (1), Alexander Hamilton (2), and John Marshall (3).

The contributions of Locke and Blackstone were noted earlier. McWhirter said: ‘No figure in history had a greater effect on the “law” of later generations than James Madison.’ Madison was responsible for the US retention of the anti-truth system.

McWhirter said Alexander Hamilton (1757-1804) was ‘America’s first great business lawyer … he saw, as few did at the time, the connection between banking, industry, and national power. The statutes he drafted and the institutions he created launched America on course toward becoming the world’s greatest industrial power’.

Hamilton believed the business of America is business and that government by an oligarchy of rich business men was the best way to build a powerful country. Perhaps inspired by Britain’s corrupt Whig oligarchy, he advised a constitutional convention in 1787:

All communities divide themselves into the few and the many. The first are the rich and the well-born, the other the mass of the people … The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class a distinct permanent share in government … Nothing but a permanent body can check the imprudence of democracy.

The Constitution was ratified in 1789. Article II Section 2 effectively resulted in government by oligarchy. It says the President, ‘with the advice and consent of the Senate, shall appoint … public ministers’, including members of Cabinet.

Smart business types can thus shuffle round a revolving door of business and government for decades. In 2004 Donald Rumsfeld, 72, had been on the shuffle for 47 years when President George W. Bush sacked him as Minister for War. In 2008, former President G.H.W. Bush, 83, had been shuffling for 42 years, and Dick Cheney, 67, for 38.

The Yazoo matter offers a glimpse of how judges would accommodate respectable organised criminals. OxfordSC reported:

In 1794, after notorious bribery involving virtually every member of the Georgia legislature, two US Senators, and many state and federal judges [including Supreme Court Justice James Wilson], the Georgia legislature authorized the sale of 35 million acres in the Yazoo area (present-day Alabama and Mississippi) to four land companies for 1.5 cents an acre. The land companies on-sold millions of acres.

The corrupt Georgia politicians were voted out in 1796; the new legislature rescinded the Yazoo grant and invalidated all sales from it. Investors sought an advisory opinion from Alexander Hamilton. He told them what they wanted to hear: the cancellation was unconstitutional. A Yazoo test case, Fletcher v Peck, ground through the courts.

President John Adams (63 in The Legal 100) stacked the courts at ‘midnight’ of the day he was to leave office, 20 January 1801. He made John Marshall (1755-1835), a land speculator and protégé of Alexander Hamilton, Chief Justice.

Chambers Biographical Dictionary (Larousse, sixth edition 1997) says Marshall ‘is the single most influential figure in US legal history … His most important decision was in the case of Marbury v Madison (1803), which established the principle of judicial review, asserting the Court’s authority to determine the constitutionality of legislation.’

Judges should clearly have the power to act as a brake on bad legislation, but only if they are properly trained and appointed. Judicial error is inevitable when the court consists of untrained former trial lawyers appointed by dubious politicians, e.g. Gore v Bush (2000).

Alexander Hamilton took part in a duel with Aaron Burr (1756-1836) at Weehawken, New Jersey, on Wednesday, 11 July, 1804. Hamilton, lawyer and gentleman, aimed high. Burr, lawyer, shot him in the stomach. Hamilton died next day but his Yazoo opinion lived on in Fletcher v Peck (1810): Marshall gave the green light to respectable organised criminals.

OxfordSC says the Contracts Clause of the Constitution seemed to be on Georgia’s side, but Marshall said the Yazoo cancellation was unconstitutional. He upheld the corrupt grants and voided the legislation which cured them.

Article II Section 4 of the Constitution says bribery warrants removal of a President, but Marshall took the view that bribery is appropriate for business. He said: ‘It would be indecent in the extreme, upon a private contract between two individuals, to enter into an inquiry respecting the corruption of the sovereign power of a state.’

Historian Gustavus Myers said Fletcher v Peck was ‘the first of a long line of court decisions validating grants and franchises of all kinds secured by bribery and fraud’. Michael Woodiwiss says that in the later 19th century success in business went to those ‘best able to bribe, blackmail, extort, exploit, and intimidate’.

The great disclosure journalist, Ida Tarbell, reported in 1904 that John D. Rockefeller’s Standard Oil became dominant by ‘force and fraud’, and that similar methods were ‘employed by all sorts of businessmen, from corner grocers up to bankers. If exposed, they are excused on the ground that this is business’. Or ‘bidness’, as Mafiosi call it.

A century after Chief Justice John Marshall gave the green light to corruption, the New York culture barely distinguished between organised crime in the judiciary, politics and on the streets.

Jimmy Breslin reported (Damon Runyon, Ticknor and Fields, 1991) that in the 1920s Tammany boss Jimmy Hines, a business partner of another organised criminal, Arthur (Dutch Schultz) Flegenheimer, extorted $10,000 (perhaps $200,000 today) from lawyers who wanted to be Criminal Court judges.

A lawyer named Macrery paid the $10,000; Hines procured a five-year appointment. Judge Macrery later told Hines: ‘I only pay once’, but shortly died of alcoholic poisoning. A Tammany lawyer called for an investigation. He said Judge Macrery had been beaten to death. Judge George Ewald’s wife went to Hines’s waiting room and announced: ‘I am here to pay the ten thousand dollars now. It is not time yet, but I would rather pay it now than have my husband killed later on.’

Hines told Runyon at Lindy’s delicatessen: ‘All I know is that calling for an investigation was a great move. I never had to ask anybody for a dollar after that. So I wasn’t an extortionist any more. I didn’t have to extort nobody. People gave me gifts.’

FBI boss (1935-72) J. Edgar Hoover (1895-72) accepted Mafia bribes in the form of tips on fixed horse races supplied by a cut-out, reporter Walter Winchell.

Cook County (2003 est. pop. 5.35 million), Illinois, includes Chicago (2000 census 2.9 million). Respectable organised criminals on the bench and at the bar have probably infested its court system since the county was created in 1831.

Carl Sifakis noted a scale for bribing judges in The Mafia Encyclopaedia (Checkmark, second edition 1999). Jake (Greasy Thumb) Guzik (1887-1956), a fixer for the Chicago Mob, devised the scale. Guzik got his nickname from counting out banknotes for police and politicians at his table at St Hubert’s Old English Grill and Chop House. The Guzik Scale should be multiplied by perhaps 20:

You buy a judge by weight, like iron in a junkyard. A justice of the peace or a magistrate can be had for a five-dollar bill. In municipal courts he will cost you ten. In circuit or superior courts he wants fifteen. The state appellate court or the state supreme court is on a par with the federal courts. By the time a judge reaches such courts he is middle-aged, thick around the middle, fat between the ears. He’s heavy. You can’t buy a federal judge for less than a twenty-dollar bill.

Sifakis records a definition of justice supplied by another Chicago fixer, Murray (The Camel) Humphreys (1899-1965), the only Welshman to reach the higher echelons of the Mafia. He said: ‘The difference between guilt and innocence in any court is who gets to the judge first with the most.’

The American Bar Association rated the Cook County Circuit Court as the best court system in a major US city in 1971. In 1980 the Justice Department and the FBI began Operation Greylord, a RICO investigation into organised crime in the Cook County court system.

The 1970 RICO (Racketeer-influenced and Corrupt Organizations) legislation is an exception to the common law rule which conceals evidence of a pattern of criminal behaviour, respectable and otherwise. It seems probable that Chief Justice John Marshall would have found a way to rule RICO unconstitutional, at least for pin-striped organised criminals, but the legislation got past the appellate courts.

Between 1984 and 1994, RICO imprisoned 20 judges, 50 lawyers, and sundry police and court officials in the Cook County system for extortion and bribery. Judge Tom Maloney was convicted of taking bribes in three murder cases. He served 12 years.

Three San Diego judges, G. Dennis Adams, Michael Greer, and Judge of the Year James A. Malkus, took bribes from Lawyer of the Year Patrick Frega. They coached him on running cases; pressured opposing lawyers to settle, and gave his cases to ‘friendly’ judges. They all went to prison in 2000. Jurist Walter Olson observed: ‘To paraphrase Oscar Wilde: losing one local judge in a corruption scandal is a misfortune. Losing two looks rather like carelessness. Losing three suggests a pattern.’

In a ‘cash for kids’ extortion, Pennsylvania judges Mark Ciavarella and Michael Conahan were accused in 2008 of taking US$2.6 million in bribes to send alleged juvenile offenders to private prisons. In February 2009, they plea-bargained the penalty down to seven years, but a judge rejected the bargain. Ciavarella and Conahan then changed their plea to not guilty and were charged on 48 counts of racketeering, extortion and bribery. In October 2009, the Pennsylvania Supreme Court expunged the convictions of some 6500 juveniles sent to prison by Ciavarella.

Britain. England is England yet. It would be idle to suppose that Britain, home of systemic corruption from the 11th century, desisted in the 20th.

An insider-trading scandal in 1912 concerned the British Marconi company, then about to get a major order from the Liberal [formerly Whig] Government. Cabinet Ministers who bought shares in Marconi’s US subsidiary included David Lloyd George (Chancellor of the Exchequer), Herbert Samuel (Postmaster-General), and Sir Rufus Isaacs (Attorney-General). Rufus (1860-1935) was brother of Godfrey Isaacs, managing director of the British Marconi company.

An inquiry whitewashed the crimes, and Rufus, now Lord Reading, became Chief Justice in 1913. This gave him the chance in 1914 to invent a discretion (see Christie below) which enables judges to conceal ALL evidence against people like, well, him. Now Marquis of Reading, he decently waited for a year after his wife’s death in 1930 before marrying his private secretary, Stella, 37.

The Honours (Prevention of Abuses) Act of 1925 came into being because a pair of organised criminals, Prime Minister (1916-22) David Lloyd George (1863-1945), a lawyer, and his bagman, Maundy Gregory, extorted bribes for honours. Gregory charged what the traffic would bear.

Lloyd George invented the Order of the British Empire (OBE) in 1917; by 1922, he had awarded 25,000 OBEs. Discussing the bribes in a 1998 Churchill Society Lecture, John Lidstone said multiplying the 1920s values of the bribes by 100 gives rough current values. The scale, with current values in brackets, were: OBE £100 (£10,000). Knight: £10,000-£15,000 (£1 million-£1.5 million). Baronet: from £25,000 (£2.5 million). Baron: £30,000-£50,000 (£3 million-£5 million). Viscount: £80,000-£120,000 (£8 million-£12 million).

Lloyd George decently gave the Liberal Party some of the proceeds, but kept an estimated £1.5 million (£150 million) for himself. Gregory got a flat £30,000 a year (£3 million, £18 million) over the six years Lloyd George was Prime Minister. In 1933, Maundy Gregory was charged and got six months and a fine of £50 (£5000), but Lloyd George was not charged. In 1945, he was made an Earl.

There has been suspicion that later politicians and their bagmen extorted bribes for honours, but Maundy Gregory remains the only person charged under the 1925 Act.

India. The Chief Justice of India, Sam Bharucha, implied in 2001 that upwards of 20% of judges were corrupt. He said: ‘ … more than 80 per cent of the Judges in this country, across the board, are honest and incorruptible. It is that smaller percentage that brings the entire judiciary into disrepute.’

Australia. Chief Justice Sir Garfield Barwick was accused in 1980 of not disclosing his interest in companies before the court. The offence carried a maximum prison sentence of two years. Barwick said, but not on oath, that he was the best judge of his impartiality, and was not charged.

Lionel Murphy, Attorney-General in a Labor Government, went up to the High Court in 1975. In 1985, Justice Murphy was charged with attempting to pervert justice on behalf of “my little mate”, lawyer Morgan Ryan. Justice Murphy was found guilty but got a re-trial and was acquitted. An inquiry by three retired judges found 14 instances of his possible criminal behaviour, but the inquiry died with him in 1986 and a Labor Government sealed the inquiry papers until 2016.

A Sydney organised criminal, George Freeman, used the J. Edgar Hoover technique to bribe NSW Chief Magistrate Murray Farquhar, but did not bother to use a cut-out. He rang Farquhar every Wednesday with tips which were 97-98% accurate, according to Farquhar’s clerk, Camille Abood, who put the money on and collected the winnings. Farquhar was imprisoned in 1985 for perverting justice in a case of theft of $55,000.

Next. What Common Lawyers Do