This is the sixth extract from Our Corrupt Legal System by legal historian Evan Whitton. The book fills a gap left by law schools: it details the origins and methods of our anti-truth system and the pro-truth European system eventually reformed by Napoleon. In the public interest, the whole book can be downloaded free from netk.net.au/whittonhome.asp
While Europe opted for truth in 1215, England hesitated. Henry III was nine when he succeeded John in October 1216. The decision was left to the judges, which in practice meant the corrupt lawyer-judge cartel. Professor Theodore Plucknett said of the relationship in the 13th century: ‘When the same half-dozen judges are constantly being addressed by the same score or so of practitioners, these two small groups cannot help influencing each other.’
Europe had spoken, but English lawyers and judges were making a lot of money from the accusatorial system, and the role of lawyers in a truth-seeking system would necessarily be minimal. In 1219, the cartel accepted that trial by ordeal had to go, but decided to reject the investigative system and to persist with the accusatorial system, minus the ordeal and with inscrutable jurors instead of the inscrutable deity.
Ethnocentrism is a ‘belief in the inherent superiority of one’s own group and culture accompanied by a feeling of contempt for other groups and cultures’, e. g. ‘Wogs begin at Calais’. Professor Richard Jackson said ‘an insular dislike of things foreign’ was a cause of the rejection of the truth-seeking system.
Nothing changes. An inquiry into the British criminal system began in 1991 after it emerged that police had used torture to procure false confessions. In 1993, its report rejected a truth-seeking system because: ‘Every system is the product of a distinct history and culture, and the more different the history and culture from our own, the greater must be the danger that an attempted transplant must fail.’
Judicial torture in Europe
The investigative system soon had odious features. Some trials were secret; some suspects were not informed of the allegations; and some judges fell into anti-truth error. While some British judges resorted to extortion to get the money, some European judges resorted to torture to get, as they wrongly believed, the truth.
Their methods of torture included simulated drowning or ‘waterboarding’. (In a war on ‘terrorism’,that followed a terrorist attack in New York on 11 September 2001, US administration lawyers advised the Central Intelligence Agency that ‘waterboarding’ is not torture.) David Gitlitz, professor of Spanish Studies at the University of Rhode Island, says medieval judges did not pretend water-boarding was not torture. He wrote in The Providence Journal of 8 February 2008: ‘Since the middle of the 13th century it [waterboarding] had been used by European civil and ecclesiastical courts.’
In practice, the torture rules were as futile as Anglo-American Bar Associations’ ethics rules. Torture is notoriously unreliable: the tortured are likely to confess to anything, e.g. the Birmingham Six, who were tortured by British police in 1974. Professor John Langbein, of Yale, noted in The Origins of Adversary Criminal Trial (OUP 2004):
… efforts at surrounding coercion with safeguards proved illusory. In case after case, the true culprit was ultimately discovered after the innocent person had confessed under torture and been convicted and executed … but long into the eighteenth century the law of torture remained a defining feature of the Continental tradition in criminal procedure.
European judges did not begin to stop torturing suspects until 1754.
British judicial extortion in the Middle Ages
Westminster Palace was the centre of power and money in the later Middle Ages. The king lived there; the magnates sat in the House of Lords; the cartel operated in Westminster Hall.
Simon de Montfort invented the House of Commons in 1265 during a second failed attempt to usurp the king’s power, the Barons’ War of 1264-68. Lawyers migrated to the Commons to hear the sound of their own voices; to protect their legal system; and to intrigue against the king. It took them four centuries to destroy the monarchy.
Professor John Gillingham said William II’s system of ‘patronage’, i.e. trickle-down extortion, was still operating in the reign of Edward I (1272-1307), when London had a population of about 35,000. Lawyers could still buy the office of judge, and judges still had an incentive to convict: a share of the fines.
The great men of the realm also continued to be effectively white collar organised criminals. To stop people stating the truth about them, Edward I invented a crime, Scandalum Magnatum, slandering the magnates (Statute of Westminster, 1275).
Judges were accused of corruption, sorcery and murder in 1289. The Chief Justice of Common Pleas fled the country, and seven judges were dismissed. They included Ralph de Hengham, Chief Justice of the King’s Bench (criminal trials), but in 1301 he was appointed Chief Justice of the Common Pleas, presumably by bribing Edward I.
Venality means open to bribery. A poem from the early 1300s was titled Song on the Venality of the Judges. Another, The Simonie, from about 1321, has a poor man standing outside the court while a rich man bearing ‘gifts’ is welcomed inside.
Lawyers took effective control of Parliament about 1350. Professor Theodore Plucknett said: ‘… the middle of the fourteenth century coincides with Parliament’s first assertions of its powers … and the dominant interest in it were the common lawyers … bench, bar and Parliament, therefore, were alike under the influence of the conservative professionalised lawyer.’ Hence the view that for more than 650 years democracy in the English-speaking world has been defined as government of the lawyers, by the lawyers, and for the lawyers. The Scandalum Magnatum was re-enacted in 1378 to stop people muttering about judges, prelates, and certain named officials, many no doubt as corrupt as the great men of the realm.
Richard II made the royal secretariat, the Chancery, a court in the 1380s. It purported to be a court of equity (fairness) to provide a remedy for the rigidities and injustices of the common law courts, but the traditionally corrupt Chancellor was its judge and jury; the Chancery Court inevitably became as corrupt as the others. Professor J. H. Baker says ‘already by 1393 there were complaints of its abuse’.
The cartel’s executive was effectively the Order of Serjeants-at-Law (Order of the Coif). Serjeants were originally an order of ecclesiastic lawyers; the coif, a piece of silk worn on the head, represented the clerical tonsure. Professor Theodore Plucknett said: ‘In the course of the 14th century the Serjeants [became] a close guild in complete control of the legal profession … By the close of the 14th century the judges are all members of the order of Serjeants, and Serjeants alone can be heard in the principal court, that of Common Pleas.’ (Civil cases.)
The Serjeants thus had a monopoly of work in the civil courts, a monopoly of appointment as judges, and a monopoly of legal education. Fewer than 1000 Serjeants were appointed from about 1400 until their monopoly ended in 1846.
Today, some US law schools give bright students an Order of the Coif. Perhaps they should think about that. Professor John Baker says ‘ministers sold the coif for bribes’ in the 17th century, but the opportunities for corruption clearly made it worth buying in the 14th, although London’s population was then only about 45,000. Professor Theodore Plucknett says Serjeants’ wealth in the 14th century ‘must have been enormous’. On appointment, they were obliged to hold feasts ‘comparable to a king’s coronation, and to distribute liveries and gold rings in profusion’.
Professor Plucknett said that in the Middle Ages Serjeants lived together during term time in the Serjeants’ Inns, ‘and discussed their cases informally together simply as Serjeants, without distinction between those on the bench and those at the bar’. They presumably also used the Inns to divide up the extortions.
London Lickpenny (c.1400-1450) is a poem about a poor ploughman from Kent. He seeks justice in Westminster Hall but, lacking money, can find no justice in the King’s Bench, the Common Pleas, or the Chancery Court.
Jack Cade’s revolt in 1450 was partly caused by dissatisfaction with the legal system. Cade briefly controlled London, and according to Shakespeare’s Henry VI Part II (1594), agreed with Dick the Butcher’s final solution: ‘Let’s kill all the lawyers’, but Cade was himself killed.
