First published June 16
Taxpayers fund the legal system and pay the wages of judges, prosecutors, court officials, and long-suffering detectives. It is not surprising that the system is a racket; England has been awash with rackets for centuries.
For example, the City of London Corporation’s sinister activities began in Roman times and continue to this day. Tax expert Nicholas Shaxson said in April 2016: “London is the epicentre of so much of the sleaze that happens in the world. Usually there will be links to the City of London, to UK law firms, to UK accountancy firms, and to UK banks.”
However charming, lawyers who run the legal system are not universally loved. Some are even said to be shysters, from the German scheisser, a shitter.
• “The first thing we do, let’s kill all the lawyers.” Dick the Butcher, 1450.
• “[Lawyering is] the art of proving … that white is black and black is white according as they are paid.” Jonathan Swift, Gulliver’s Travels, 1726.
• “The one great principle of the English law is to make business for itself.” Charles Dickens, Bleak House, 1853.
• “If all the lawyers were hanged tomorrow, and their bones sold to a mah jongg factory, we’d be freer and safer, and our taxes would be reduced by almost half.” H. L. Mencken, Sage of Baltimore, 1924.
• “The legal trade, in short, is nothing but a high-class racket.” Yale law professor Fred Rodell, 1939.
• “It’s only the 99% of lawyers who give the rest a bad name.” Joel Siegel, Good Morning America, 2002.
The system is a product of chance. As Eliot put it in Four Quartets:
Footfalls echo in the memory
Down the passage we did not take
Towards the door we never opened
Into the rose garden.
William II, born c. 1056 and king of England from 1087, was a short, fat man with a red face and yellow hair who never married; he preferred sodomy. He put every public office on sale; buyers extorted bribes from people who dealt with the office. Widely despised, he was shot dead on 2 August 1100 and his body left where it lay.
William’s system of trickle-down extortion continued. When the common law began in 1166, judges extorted bribes and lawyers were presumably their bagmen, as in Chicago quite recently; see Operation Greylord.
Among the consequences:
Richard Posner, a US judge/economist, says judges and lawyers have always been a cartel. Members of a cartel collude to make money.
• Judges are not trained as judges as they are in France and Germany. They are lawyers one day and judges the next.
England was represented at a church-state conference in Rome (population about a million) in 1215. European countries then changed to an inquisitorial (truth-seeking) system but a few undoubtedly corrupt judges in London (population about 11,000) chose to persist with an anti-truth accusatorial system: A accused B. B said: Prove it.
Lawyers became the “dominant influence” in England’s Parliament about 1350.
Judges were initially in charge. On a fixed wage (plus bribes), they had no incentive to spin the process out; trials were quite short. Lawyers paid by the day (or in blocks of six minutes) do have an incentive.
Lawyers took control 10 years after the failure of Dick the Butcher’s final solution for the lawyer problem. Their vehicle was pleadings, which don’t have to be true but are supposed to narrow the issues.
Lawyers originally pled orally before a judge for a few hours until all agreed on the issue(s); the case then went to a jury. The adversary system dates from 1460, when lawyers began to exchange written pleadings, thus cutting judges out of the process, and judges did not stop them.
Lawyers can prolong written pleadings, with the meter running, for months or years in see-saw fashion: statement of claim, defence, reply, rejoinder, surrejoinder, rebutter, surrebutter etc, thus confirming Professor Rodell’s claim that the system is a racket.
England imposed its corrupt legal system on its colonies, the United States, India, New Zealand, Australia, Ireland etc.
The Chancellor was a politician-judge. About 1650, a Chancellor, probably Bulstrode Whitelocke, concocted a disputed will racket; he ruled that in will cases lawyers were to be paid, not by clients, but from the deceased estates. Chancellors then held hearings but did not finalise cases for decades. Estates paid lawyers for turning up.
Charles Dickens knew all about the racket. His Jarndyce v Jarndyce in Bleak House (1853) was based on Jennens v Jennens, a will case concerning an estate worth some $1.5 billion today. Thirty-two sleazoid Chancellors kept Jennens going for 117 years, from 1798 to 1915, while lawyers “devoured” the estate.
A US judge, Harold Rothwax, said: “Without truth there can be no justice.” OCLS details 24 truth-defeating mechanisms. Three examples:
• Concealing a pattern. In 1894, a Chancellor, Farrer Herschell, concocted a rule which conceals evidence of a pattern of criminal activity. The rule gives jurors the impression that repeat offenders, eg organised criminals and serial rapists, are first offenders. It is then the criminal’s word against the victim’s, and beyond reasonable doubt, which jurors do not understand, favours the criminal.
• Ethics. (Said to be a county in south-east England.) US law professor Monroe Freedman gave lawyers an excuse to lie. He said in 2006: “… there are circumstances in which a lawyer can ethically make a false statement of fact to a tribunal … and can ethically engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Freedman said that even if a rapist privately admits his guilt to his lawyer, the lawyer can still ethically let him deny his crime on oath and can question the victim about her sex life to suggest she consented. Rape victims have vomited on the witness box. The American Bar Association gave Freedman its highest award for his work on ethics.
• Cross-examination. US law professor James Elkins said the adversary system has a philosophy of cruelty. Frances Andrade, an English rape victim, said during cross-examination by defence
lawyer Kate Blackwell: “This feels like rape all over again.” Andrade killed herself before the trial was over.
Lawyer-politicians may be a universal problem. They were heavily represented in the corrupt French legislature. Napoleon, 30, told his generals on Saturday, 9 November 1799: “We must get rid of these lawyers.”
Next day, 500 politicians at the Orangerie Palace at St Cloud planned to have Napoleon guillotined, but his cavalry general, Joachim Murat, lined up a column of grenadiers and, to beating drums, marched them into the palace and gave a cheery order: “Throw me these blighters out of the window.”
That was the end of the lawyer-politicians but it would have meant nothing for the law except for a fluke of timing at Marengo in Piedmont at about 5.20 pm on Saturday 14 June 1800.
That day, there were two battles between France and a coalition led by Austria but financed by England. Napoleon lost the first. A. G. Macdonell described the fluke in the second in Napoleon and His Marshals:
“The French counter-attack was, by chance, one of the most perfectly timed tactical operations by combined infantry, artillery, and cavalry in the whole history of warfare … Suddenly, through the dense smoke, [artillery General Auguste] Marmont saw, not 50 yards in front, a battalion of Austrian Grenadiers advancing in perfect formation to counter the counter-attack …
“Marmont … fired four rounds of canister at point-blank range into the compact battalion, and at that precise moment, while the Austrians were staggering under the blow and an Austrian ammunition-wagon was exploding with a monstrous detonation, [General Louis] Desaix went forward with a shout, and young Kellermann, son of old Valmy Kellermann, came thundering down on the flank, through the mulberry trees and the tall luxuriant vines, with a handful of heavy cavalry.
“A minute earlier, or three minutes later, and the thing could not have succeeded, but the timing was perfect, and North Italy was recovered in that moment for the French Republic.”
Napoleon, who did not eat before a battle, was famished. His cook, Dunand, invented a meal from materials to hand, a chicken, some tomatoes, mushrooms, eggs, prawns, and a crayfish, all cooked in brandy flames. Today’s Chicken Marengo is essentially chicken, mushrooms, tomatoes, perhaps with a fried egg on top.
England did not finance another coalition for five years. Napoleon, 30, thus had time to apply his remarkable intellect to reforming and codifying the inquisitorial system. His system is now the most accurate, cost-effective and widespread; it affects twice as many as the adversary system. Details of Marengo and Napoleon’s approach to reform are at pp. 62-68 of OCLS.
What might have been. England and some or all of its colonies would probably use a truth-seeking system today if Admiral Pierre Villeneuve had followed Napoleon’s instructions in October 1805 and sailed
north instead of south. A comparison:
The trained lawyers who control the process can use sophistry, a technique of lying by false arguments etc, and can demand Yes or No answers to trick questions. Suspects can refuse to answer questions. Judges conceal evidence on the ground that jurors are stupid. It gets sillier; judges sitting without a jury have to conceal evidence from themselves, which is quite a trick and implies that judges are stupid. But judges do the decent thing; they try to stay awake while lawyers are spinning the process out. Jurors do not give reasons. About half guilty criminals – 75% in rape cases – get off. A lawyer, Brett Dawson, says it is a get-the-guilty-off system.
The French system.
The trained judges who control the process use a series of filters to protect the innocent. They do not conceal evidence and do not let lawyers use sophistry. Witnesses give evidence as a narrative. The commonsense of ordinary people is valued: jurors sit with judges and can outvote them. Suspects must answer questions. Most hearings take a day or so. About 95% of guilty defendants are convicted. Reasons are given for verdicts.
To sum up: Adversary lawyers search for the money; inquisitorial judges search for the truth.
The racket persists because lawyers, although only 0.2% of the population, have infested English-speaking legislatures for 6½ centuries. Today, they are 60% of the US Senate. Hence perhaps the Tammany Hall saying: “More lawyers live on politics than flies on a dead camel.” In effect, there are basically three political parties:
• A conservative party.
• A less conservative party.
• A Lawyer Party consisting of lawyers in the other two parties. The Dead Camel Party? The Shitters’ Party?
Justice clearly requires change to a truth-seeking system run by trained judges but that cannot happen until enough lawyers are winkled out of legislatures. Vote 1: Anyone but a lawyer.
It may take 10-15 years but the winkle will have general support; Justice Russell Fox said the public knows that “justice marches with the truth”.
*Evan Whitton read History at the University of Queensland. The texts of seven of his non-fiction books, including Our Corrupt Legal System, can be found at a site run by legal academic Dr Robert Moles, netk.net.au/whittonhome.asp
Notes: Sources omitted for brevity are in Our Corrupt Legal System (OCLS).