“ … more can be done with money in England than anywhere in the world.”
– Count of Egmont, 1554.
Summary
A chronology of the origins and development of two legal systems reveals a pattern of corruption in English politics and the law.
Definitions
Legal systems. The lawyer-run adversary system is used in common law countries, England and its former colonies: India, Ireland, the US, Canada, Australia, NZ etc. The judge-run inquisitorial system affects twice as many in France and elsewhere.
Funding. Taxpayers fund the systems and pay the wages of police, prosecutors and judges.
Justice. US judge Harold Rothwax: “Without truth, there can be no justice.” Sydney judge Russell Fox researched the systems for 11 years. He concluded:
• Justice means fairness; fairness and morality require a search for the truth, otherwise the wrong side may win.
• The public knows that “justice marches with the truth”.
Sophistry. A technique of lying by false arguments, trick questions, shifting the goalposts etc.
Lawyers. Harvard ethics professor Arthur Applbaum said: “Lawyers might accurately be described as serial liars because they repeatedly try to induce others to believe in the truth of propositions, or in the validity of arguments, that they believe to be false.”
Judges. French and German judges are trained as judges separately from lawyers. Common law judges are former lawyers untrained as judges. Legislatures can dismiss judges for misconduct or incapacity.
The judge-lawyer cartel. Judge Richard Posner said common law judges and lawyers have always been a cartel. If so, the independence of the judiciary is a legal fiction; members of a cartel collude to increase prices and profits.
White collar crime. Non-violent crime; if systematic, it is organised crime. Corruption is white collar crime.
Racket. A criminal enterprise.
The City of London Corporation (the City). Dating from Roman times, the City is a mysterious money machine in the heart of London. Its major service is tax evasion.
Much of the data will be new to common lawyers, including judges and academics; law schools teach what the law is, not where it came from.
Sources not named here are among the 300+ judges and lawyers quoted in my book on the two systems. The text is at netk.net.au/Whitton/OCLS.pdf.
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Rothwax, Fox and the public were echoing the ancient Egyptians. Maat, Egyptian goddess of justice c. 2700 BC, had an ostrich feather in her cap; it symbolised justice, truth, morality.
Sophists taught Athenian lawyers how to use sophistry about 500 BC. Socrates said the Sophists were morally bankrupt; Plato said they were charlatans.
Rome used an inquisitorial system but lawyers could use sophistry; Cicero, murdered in 43 BC, said: “If you have no argument, abuse your opponent.” As part of the Roman Empire, England (from 43 AD) and West Europe used an inquisitorial system.
Since Roman times, England has effectively been two countries: England proper and the City. Tax expert Nicholas Shaxson explained: “The City’s ‘elsewhere’ status … stems from a simple formula: over centuries, sovereigns and governments have sought City loans, and in exchange the City has extracted privileges and freedoms from rules and laws …” (The New Statesman, February 24, 2011.)
Edward Gibbon said the Roman Empire collapsed on September 4, 476 AD. In the Dark Ages which followed, England and West Europe changed to an accusatorial (prove it) system, trial by ordeal, and verdict by an unknown god.
For example, if England’s Witchfinder-General accused a girl of witchcraft, she was trussed and thrown in a section of a river which had been blessed by a priest. If the water rejected her, i.e. she floated, the deity’s verdict was guilty. The girl was fished out and hanged or burned at the stake. If the water “received” the girl, i.e. she sank, she had the consolation that the deity’s verdict was not guilty.
The inquisitorial system continued in the East Roman (Byzantine) Empire. The Emperor Justinian had Roman law codified by 535. A digest of the Code was found in Italy c. 1070 and was studied at the West’s oldest university, Bologna, founded 1088.
William I became king in 1066. He divided 90% of England among 300 of his soldiers (the Magnates), and introduced a racket called the feudal system: he extorted from the Magnates; they extorted from those below; and so on down to peasants.
The City’s “modern period” dates from 1067, when William “came friendly” and let the City keep its ancient rights. Its charter was periodically reaffirmed.
William II, king from 1087 until he was shot dead on August 2, 1100, adapted his father’s racket to the trade of authority; he put every public office on sale; investors in turn extorted bribes from people who dealt with the office. History professor John Gillingham said that system continued for at least two centuries.
The common law is held to have begun in 1166. Lawyers were professionalised, i.e. paid, from 1178, judges by 1200. Lawyers were the natural bagmen for extorting judges; that may explain the judge-lawyer cartel.
Lotario di Segni, born c. 1160, studied jurisprudence at Bologna University, and probably saw the digest of Roman law; as a Cardinal in 1190, he devised an inquisitorial procedure to investigate clerics. He became Pope Innocent III in 1198.
Innocent became in effect master of Europe. His “glittering” church-state conference, the Fourth Lateran Council, in November 1215 confirmed his inquisitorial system; West European lay courts shortly reverted to that system.
Ludovic Kennedy said, and Napoleon confirmed, that justice is too important to be left to judges. For five centuries, European judges wrongly believed that torture is a reliable way of finding the truth, as did US law professor John Choon Yoo, President George W. Bush, Vice-President Dick Cheney, War Minister Donald Rumsfeld, and the Central Intelligence Agency.
English judges formally rejected the inquisitorial system in 1219. If truth does not matter, anything goes.
In 1275, it became a crime, libel, to utter a slur about a Magnate. The law was designed to stop Magnates going to war with each other, but was later used to protect other white collar criminals.
Lawyers have been the “dominant influence” in English-speaking legislatures since c. 1350. (Today, they are 0.2% of the population, but as much as 60% of legislatures. Justice can march with the truth when the public stops voting for lawyer-politicians.)
The money was in civil law. Starting with pleadings, judges began to let lawyers take over control of the civil system (and hence start the adversary system). Pleadings are supposed to narrow the issues. Before the takeover, lawyers pled orally before a judge until all agreed on the issue. The case then went to a jury. On a fixed wage (plus the graft), judges had no incentive to spin the process out; pleadings took an hour or two.
In 1460, a judge, Sir John Prisot, noted that lawyers were exchanging written pleadings, thus cutting judges out. Paid by the day, lawyers have an incentive to prolong the process; written pleadings can take months: statement of claim, defence, reply, rejoinder, surrejoinder, rebutter, surrebutter etc. Some points:
• Judges could have stopped the change, but did not.
• Written pleading are largely useless; they have never had to be true.
• The West Australian Law Reform Commission said legislation is not required to revert to oral pleadings; judges could do it themselves. None have.
It was probably a century or more before lawyers had control of all aspects of the civil system except appeals, but the change from judge-control to lawyer-control was so great that we can fairly assume it was sanctioned by the judge-lawyer cartel. Everyone gained. Lawyers could make more money and then retire, if they chose, to the status of judge, whose major task was to stay awake.
Judge Harold Rothwax said the adversary system “is run entirely by lawyers for their own interests and for their own benefit”. Yale law professor Fred Rodell said it is “a high class racket”.
A Queensland judge, James Thomas, said of the Tudor period (1485-1603): “With few exceptions, all officials, including judges, were … corrupt. [Cardinal] Wolsey [Chancellor 1525-29] received gifts and in turn bribed others … In those days [judges] considered it proper to receive gifts or bribes from one or both parties and yet thought they could still render justice.”
The Count of Egmont bribed every member of the Royal Council in 1554, and reported to Philip of Spain that “more could be done with money in England than anywhere in the world”.
George Orwell said: “The omission is the most powerful form of lie.” Omitting evidence can defeat truth and cover up crimes, which is perversion of justice. Judges tend to use other judges’ remarks to invent rules which omit evidence.
Lawyer-client secrecy. A statement in 1577 by a Tudor politician-judge, Sir William Cordell, Master of the Rolls (head of the appeal court) is the basis of the first rule which conceals evidence. The following is said to be the full report of what Cordell said in a case called Berd v Lovelace ( here ):
“Thomas Hawtry, gentleman, was served with a subpoena to testify his knowledge touching the cause in variance; and made oath that he hath been, and yet is a solicitor in this suit, and hath received several fees of the defendant; which being informed to the Master of the Rolls ( here ) it is ordered that the said Thomas Hawtry shall not be compelled to be deposed, touching the same; and that he shall be in no danger of any contempt, touching the not executing of the same process.”
Cordell did not say why Hawtry was exempt from giving evidence. For all we know, it was the cartel at work: a judge getting a lawyer out of a hole. Nonetheless, legal professional privilege (attorney-client privilege in the US) has concealed communications between clients and lawyers for more than four centuries.
Much sophistry has been deployed to justify the privilege. Arguments against it:
• It enables criminals to conspire with lawyers.
• It protects the guilty but not the innocent.
• If the communications were proper, it is not harmful to reveal them. If improper, revealing them serves justice.
• Communications between people in business and their clients are not privileged. The common law has been a business since at least 1460.
Lord (Maurice) Glasman, a student of the City, said the Stuart kings (1603-88) sought but failed to impose their authority on the City, and that “one [attempt] led to the execution of the king”, Charles I, in 1649 (The Financial Times, September 29, 2014).
The cartel at work. The Chancellor was a politician and sole judge of the Chancery Court. About 1650, a Chancellor, possibly Bulstrode Whitelock, ruled that in cases of disputed wills, lawyers were to be paid, not by clients, but from the deceased estates.
The ruling thus made millions for lawyers; Chancellors held hearings but did not finalise cases for decades. Lawyers, including those who made fraudulent claims, got paid for turning up.
Lord Glasman said an attempt by Charles II (1660-85) to impose his authority on the City led to the “glorious” revolution of 1688. James II was forced off the throne and replaced in 1689 by William III, a Dutch person, and his wife Mary.
The payoff for the City was a catchall new charter in 1690. It declared: “ … the mayor [and members] shall have and enjoy all their rights, gifts, charters, grants, liberties, privileges, franchises, customs, usages, constitutions, prescriptions, immunities, markets, duties, tolls, lands, tenements, estates and hereditaments whatsoever.”
Petty criminal had little cash and white collar criminals were not accused. Lawyers did not defend criminals until 1695, and not in any numbers for another century.
Modern journalism was invented by Daniel Defoe on February 19, 1704. In the same year, Chief Justice John Holt said: “ … it is very necessary for all governments that people should have a good opinion of it [sic]”.
That could mean that governments should earn good opinions, but other judges said Holt meant it is a crime, seditious libel, to offer “written censure upon any public man whatever for any conduct whatever, or upon any law or institution whatever”. Even, presumably, if the censure was true.
One effect of the glorious revolution was brazen corruption. James Brydges, later first Duke of Chandos made £600,000, some $60 million today, as Paymaster-General 1705-13.
For much of the 18th century, England was run by an oligarchy of corrupt Whig politicians and judges. Sir Robert Walpole, Prime Minister 1715-17 and 1720-42, said of politicians: “All these men have their price.”
The Duke of Newcastle was the Whig bagman for 38 years (1724-62) and Prime Minister 1754-56 and 1757-62. Justice Jim Thomas said Walpole or Newcastle appointed most judges between 1714 and 1760, and 77% of them were politicians.
Lord Macclesfield, Whig Chancellor 1718-25, extorted bribes of £5000 (c. £500,000 today) from barristers who wanted to be Masters in Chancery in order to extort from litigants. Francis Elde delivered the gold and notes to Macclesfield and his bagman, Master Peter Cottingham, in a clothesbasket.
A criminal, the Earl of Anglesey, got a nasty surprise in 1743. His lawyer, James Gifford waived lawyer-client secrecy and revealed that the Earl and he had conspired to seek a judicial killing.
A serial liar, William Blackstone, opened the first law school at Oxford in 1758. Judge Richard Posner said “the professsoriat” are members of the cartel.
Justice Thomas said Lord Mansfield was a judge “trained in the service of the Whig oligarchy”. Appointed by the Duke of Newcastle, he was Chief Justice 1756-88; sat in corrupt Cabinets until 1774; was an active politician until 1784; and invented a famous lie: the greater the truth, the greater the libel.
In 1792, Mansfield’s protégé, Sir Francis Buller, decided that judges had been wrong for two centuries about who owned legal provisional privilege. His ruling that only clients could waive the privilege made it safe for criminals to conspire with lawyers.
(Corruption has been endemic in Sydney since the Rum Corps got control of the colony in 1792; like the City, members of the Corps engaged in treason.)
In England, white collar criminals were protected; most petty accused were convicted. In 1795, only 36.6% of accused at the Old Bailey wasted money on lawyers. Judges devised 18 new truth-defeating mechanisms roughly between 1800 and 1914. The mechanisms gave criminals a sporting chance of getting off, and thus encouraged them to pay criminal lawyers. Five mechanisms and consequences are noted before the chronology resumes:
Beyond reasonable doubt. The formula dates from c. 1800. Jurors do not know what it means, and Australian judges are not allowed to tell them it means: Are you sure? Judge Christopher Wright believed it gets off about 25% of guilty defendants.
The right of silence conceals evidence of suspects who probably know a good deal about the crimes. It is based on three lies.
• The law was: no one has to accuse himself, but if accused he must show his innocence if he can. In 1568, a politician/judge, James Dyer, omitted everything except “No one has to accuse himself”. No other judge accepted Dyer’s lie for 200 years.
• The first academic, William Blackstone, falsely said it was the law of England that no one has to accuse himself.
• It was held c. 1850 that “no one has to accuse himself” means something quite different: No one has to answer questions from police or prosecutors.
The right of silence can save the guilty from being charged, and is said to get off about 50% of guilty defendants who refuse to give evidence.
Precedent. Judges could ignore other judges’ rulings until about 1860. Since then, the rule of precedent has entrenched rulings by judges who were confused or corrupt. Judges can riffle through precedents to find one which suits their agenda.
Concealing evidence of a pattern of criminal behaviour. The corrupt politician’s friend. Justice Russell Fox said an understanding of facts depends heavily on context. Legal academic Dr Robert Moles said: “ … most of what we need to know to place the knowledge in context in trials is ruled to be inadmissible”.
The rule against “similar facts” conceals much context and deceives jurors; repeat offenders are presented as first offenders. The rule has protected millions of organised criminals since it was devised in 1894. Its author, Farrer Herschell, was one of 32 Chancellors who kept a will case going for 117 years. (See Jennens below.)
In 1970, the US Congress allowed pattern evidence to be used against organised criminals. Between 1981 and 1994, the RICO (Racketeer-Influenced and Corrupt Organisations) legislation was used to imprison 17 corrupt Chicago judges and 50 of their bagmen, and 23 previously untouchable Mafia bosses.
Australian police have asked for RICO powers since 1984. Politicians have refused every request. Why?
The Christie discretion. In 1912, a group of political white collar criminals, Attorney-General Rufus Isaacs, Prime Minister Herbert Asquith and Chancellor of the Exchequer Lloyd George made money from inside trading in Marconi shares. Their crimes were covered up; Isaacs became Lord Reading and Lord Chief Justice.
The Christie discretion, devised by Reading’s court in 1914, gives judges power to conceal evidence if they think it prejudices jurors against the accused more than it helps the Crown case. What does that mean? The rule is so confusing that it has caused corrupt and honest judges alike to conceal important evidence for a century.
The malady. Not surprisingly, the above and other complicated perversions of justice can make it hard for judges to think straight, a condition known as the English malady.
Lord Reid said at least 90% of decisions could have gone either way in the 27 years (1948-75) he was on England’s highest court. That suggests the judges were wrong in nearly 50% of cases. Hence barrister A. P. Herbert: “In other trades to be wrong is regarded as a matter of regret; in the law alone is it regarded as a matter of course.”
Judges placed 21st in a 2011 Reader’s Digest poll concerning Australia’s most trusted professions. They were less trusted than parademics (ambulance people), nurses, farmers, vets, police, teachers, bus/train/tram drivers, hairdressers, chefs.
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Jennens v Jennens concerned a deceased estate worth some $1.5 billion today. It began in 1798.
William Pitt, Prime Minister 1783-1801 and 1804-06, bribed newspaper proprietors; funded three coalitions against France; and in 1800 told Viscount Castlereagh to bribe Irish politicians to vote their Parliament out of existence and sign an Act of Union with England. The bribes included £4 million (c. $600 million today) and 40 peerages. Appropriately, two streets in central Sydney are named Pitt and Castlereagh.
The destruction of Pitt’s second coalition at the Battle of Marengo in 1800 gave Napoleon a breathing space of three years. He used the item to begin work on his monument: reform and codification of the inquisitorial system. England would probably have changed back to that system if Admiral Villeneuve had followed Napoleon’s instructions in 1805.
In 1810, eight centuries after William II institutionalised public sector corruption, lawyers were still bribing judges to get legal office. In 1815, Lady Lygon paid George III a bribe of £10,000 (£10 million today) to make her husband Earl Beauchamp.
Jennens v Jennens is the model for Jarndyce v Jarndyce in Bleak House (1853). In his Preface, Dickens noted another case. It began in 1837; at one time, 30 to 40 lawyers appeared; in 16 years, the estate had paid lawyers £70,000, say £7 million today.
Discovery. In civil litigation, lawyers for one side can ask lawyers for the other side to “discover” and hand over documents. A few words by Judge William Brett in 1882 has made billions for lawyers. He said any document is discoverable if it might, directly or indirectly, lead to a “train of inquiry” which might help one side’s case or damage the other’s. (Emphasis added.) Indications that discovery is a racket:
• Millions of documents can be discovered, sorted, filed and analysed, but fewer than 50 will be relevant to the case.
• Discovery accounts for 60% of the time and money spent on US lawsuits. In one case, discovery took five years and produced 64 million pages of documents.
• A partner at a US law firm told law school students: “My firm’s meter was running all the time, every month for 14 years.”
• Discovery barely exists in France and Germany; if a judge wants a document, he sends for it. Civil hearings in France and Germany take a few hours in total.
Jennens v Jennens finally ended when lawyers had “devoured” the remnants of the estate in 1915.
Lloyd George, Prime Minister 1916-22, sold honours through his bagman, Maundy Gregory, for what the traffic would bear. At today’s rates (roughly 100 times 1916 rates), approximates prices were: Order of the British Empire £10,000, Knight £1.2 million, Baronet £2.5million, Lord £3 million, Viscount £10 million.
Lloyd George is estimated to have made £1.5 million (£150 million today) from selling honours. It would be idle to suppose that the practice stopped with him and Maundy Gregory.
Negligence. Lord Atkin, born in Brisbane, made millions for lawyers with a few words of pious drivel in Donoghue v Stevenson (1932), an appeal concerning an alleged snail in a bottle of ginger beer. Note. Lawyers rub their hands when they hear the word “reasonable”; it can mean anything.
Atkin said: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour … You must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my acts that I ought reasonably to have them in contemplation …” (Emphasis added.)
Justice Russell Fox said lawyers can take half the payouts in negligence cases. He said the solution is no-fault compensation, which cuts lawyers out.
Tax evasion. The same Lord Atkin noted (Inland Revenue Commissioners v Duke of Westminster, 1936) “a device by which [the Duke] might avoid some of the burden of sur-tax [but] it has to be recognized that the subject, whether poor and humble, or wealthy and noble, has the legal right to so dispose of his capital and income as to attract upon himself the least amount of tax.”
Wrong again. Poor and humble wage and salary earners cannot evade tax; it is deducted at source.
In Australia, the 1936 Tax Act barred artificial tax evasion schemes “absolutely”. In 1957, a tax lawyer, Garfield Barwick, and five High Court judges, including Chief Justice Owen Dixon, made tax evasion legal; they said “absolutely” does not mean “absolutely”; there could be exceptions.
Prime Minister Robert Menzies, a lawyer, must have known what would happen when he appointed Barwick to succeed Dixon in 1964. In Curran (1974), Barwick and two other judges said a profit of $2782 was, for tax purposes, a loss of $186,046.
From 1970 to 1978, tax evasion from the Barwick court’s rulings cost the revenue $800 million, perhaps $2 billion today. Treasurer John Howard had to resort to retrospective legislation to get some of the money back. Barwick was not charged with corruption; he was not even dismissed for misconduct.
NSW white collar organised criminals included Premiers Bill McKell, Joe Cahill, Bob Askin, and Neville Wran and Police Commissioners Norman Allan and Mervyn Wood. Askin sold knighthoods for $20,000-$60,000. A criminal, Peter Abeles, bought his knighthood in 1972 by letting Askin win at poker.
Askin and Wran, say, would have been rapidly convicted if jurors were allowed to hear pattern evidence, but chronically under-funded prosecutors may not have wasted taxpayers’ money on charging them. A former Australian judge, Ray Finkelstein, wrote in Targeting Tax Crime (March 2012):
“How do judges punish white collar crimes? As a general rule, the judge’s rationale in sentencing is different from sentencing true criminals … imprisonment … is regarded as a last resort. This approach … inevitably leads the public to the conclusion that there is a law for the rich and a law for the poor.”
Judges who sentence on the basis that white collar criminals are not true criminals should be at risk of dismissal for incapacity or misconduct.
Libel law. On average, the cost of a libel action in England is 140 times that of a libel action in Europe.
US judges abolished a series of obviously false and unjust presumptions in 1964, but they remain in Australia: a slur is always false, always intentional and always causes damage; the author is always guilty. Also, the onus is reversed: the accused has to prove everything; the complainant does not have to prove anything, e.g. damage caused by the slur. We could be back in the 18th century.
Libel law thus prevents journalism from doing its job: telling the customers what is really going on. Organs of the media which do not insist that judges remove the false presumptions and reversed onus get what they deserve.
The modern City of London Corporation. Nicholas Shaxson wrote: “Margaret Thatcher’s … Wild West financial deregulation in 1986 caused the stream of bankers to turn into a river, then a deluge … The fall of the Soviet Union in 1989, and the vast, corrupt post-Soviet privatizations, brought the biggest … wave of foreign buyers London had ever seen.” (A Tale of Two Londons, Vanity Fair, April 2013.)
Shaxson said Britain is “the most important player in the global offshore system of tax havens [including] … Crown Dependencies: Jersey, Guernsey, and the Isle of Man … the Caymans, the British Virgin Islands (B.V.I.), and Bermuda …
“In the second quarter of 2009 [Jersey, Guernsey, the Isle of Man] provided $332.5 billion in net financing to the City of London, much of it from tax-evading foreign money … Britain could close down this tax-haven secrecy overnight if it wanted, but the City of London won’t let it … The City’s Cash [is] a private fund built up over the last eight centuries, which, among many other things, helps buy off dissent.”
Global financial crisis (2007-09). Judge Jed Rakoff, of New York, said the crisis “was caused by deliberate fraud [but] no high-level executives were prosecuted”. (New York Review of Books, January 9, 2014).
Historian James Taylor, of Lancaster University, said “the bank bailout cost the taxpayer £133 billion, or over £2,000 for every person in the country [but] those responsible have not faced criminal sanctions”.
Dr Taylor quoted an observation by Labour MP David Crausby in Parliament on December 19, 2012: “When the great train robbers stole £2.5 million from Royal Mail, they were sentenced to as many as 30 years in prison. When our bankers get caught fraudulently taking billions of pounds from poor people throughout the world, they just pay large corporate fines and walk away with fat pensions.”
Finally, a summary of differences between the two legal systems.
The French inquisitorial system searches for the truth; evidence is not concealed. Trained judges control the process; the innocent are rarely charged. Jurors and judges sit together. Judges do not let lawyers pollute the truth with sophistry. Most hearings take a day or so; 95% of guilty defendants are convicted.
The adversary system does not search for the truth; evidence is concealed. Lawyers control the process. Untrained judges let lawyers use sophistry. Jurors are isolated. Trials can take weeks or months. At least 1% (5% in the US) of people in prison are innocent; fewer than 50% of guilty defendants are convicted.
The English system thus convicts half the number of guilty defendants as the French system, and at twice the cost to taxpayers.
The Count of Egmont is still right.
Evan Whitton is a legal historian. China Fangzheng Press has contracted to translate and publish his book, Our Corrupt Legal System, in mainland China.
