Ian’s Legal Fact of the Week 8/31/15: The Origins of “Arrest”

The word “arrest” is Anglo-Norman in origin, related to the French word “arrêt” meaning “to stop to stay”. In the U.S., the most common slang expression to signify arrest is “collared” (similar to the French slang, incidentally!), while in the U.K. the most common slang expression is to be “nicked” or “pinched”.

Ian’s Legal Fact of the Week 8/24/15: The Equal Rights Amendment

The Equal Rights Amendment (ERA), which sought to guarantee equal rights for women, was originally introduced in Congress in 1923 but not submitted for ratification until 1972. It was ultimately ratified by 35 states (although some of these later rescinded their ratifications) before its deadline for expiry in 1982. Twenty-one state constitutions contain versions of the ERA.

10 Historical Documents Proven to be Fake

I am very pleased to feature a guest blog this week, from Rob Carter in the U.K. (welcome, Rob!). While not specifically on a legal subject, it is on an interesting historical topic that also is related to law, namely — historical forgeries! Without further adieu:

 

10 Historical Documents Which Have Proven to be Fake

by Rob Carter

Ever since early writers put reed pens to papyrus in order to mimic the writings of Socrates and other ancient authors whose work was highly valued, people have been attempting to deceive the masses by creating something ‘priceless’ in the hope that somebody will be willing to pay an exorbitant price for the privilege of owning it. Sometimes, however, the forger is more interested in power than profit, and even crudely forged documents such as The Protocols of the Elders of Zion can influence the thinking of generations of people.

Donation of Constantine

Roman Emperor Constantine, desperate to be cured of his leprosy, was converted and baptised by Pope Sylvester I in the fourth century A.D. As a token of his gratitude, Constantine granted the Pope and his successors authority over vast territories of the Western Roman Empire. In a letter to Pope Sylvester, Constantine allegedly gave the Pope dominion over “Rome and the provinces, districts and towns of Italy and all the Western regions”. However, this ancient letter – which helped enforce and establish the Catholic Church’s power for 700 years – is a forgery.

While Constantine’s conversion to Catholicism is historical fact, the letter bestowing the Pope with authority over much of Italy is pure fabrication. The Donation of Constantine as it has become to be known, was probably written between 750 A.D. – 850 A.D., quite possibly by a church official. Despite the authenticity of the documents being repeatedly questioned since the 11th century, several Popes used the letter to defend their political power and assert their authority over the centuries, before the document was exposed as a fraud in the 15th century.

Lost Play of Shakespeare

When the discovery of a new Shakespeare play called Vortigern was announced in the late 18th century, Irish playwright Richard Brinsley Sheridan purchased the rights to the first production at Drury Lane Theatre in London for a total of 300 pounds, as well as a share of the revenue generated by the play. When Sheridan actually received the script from the man who claimed to have discovered it, William Henry Ireland, he quickly suspected that the play was written by Ireland himself.

Refusing to bill Vortigern as an original work by Shakespeare, Sheridan instead staged the play as an April Fool’s Day joke – along with a musical farce about the gullibility of an art collector. Vortigern premiered on 2nd April 1796 and was derided by audiences and critics alike. Such was its poor reception, Vortigern was not performed again until 2008.

Hitler Diaries

In 1981, a reporter for the German magazine Stern found out about a cache of diaries allegedly recovered from a Nazi plane crash in 1945 and hidden away for decades. The huge collection of journals – over 50 in total – revealed a gentler, kinder side to the Nazi dictator whose ‘final solution’ to the ‘Jewish problem’ was not genocide, but merely deportation. Unfortunately, the diaries were the work of infamous forger Konrad Kujau.

After purchasing ‘Hitler’s diaries’ for 9.3m Deutsche Marks ($3.7m/£2.3m), Stern broke the story of the diaries in late April of 1983. It triggered banner headlines around the world, but several notable historians quickly denounced the documents as forgeries, and forensic analysis eventually confirmed the diaries were fakes. At his trial, Kujau, a German dealer in military memorabilia, openly admitted guilt and was happy to sign Hitler ‘autographs’ for the crowd.

The Diary of Jack the Ripper

In 1992, Michael Barrett, and unemployed former scrap metal dealer from Liverpool, claimed to have been given a mysterious diary chronicling the life and times of the most infamous serial killer in history: Jack the Ripper. Incredibly, the diary also revealed enough details of the author’s life for anybody with even a passing interest in the case to determine that the writer of the diary was James Maybrick, a Liverpool cotton merchant. When a book about the diary was published on 7th October 1993, the book’s publisher proudly declared that the world’s greatest murder mystery had finally been solved. Alas, it was not.

When renowned forgery expert Kenneth Rendell analysed the supposed diary of Jack the Ripper, he was struck by how modern the handwriting style appeared. Although the actual scrapbook itself is Victorian, 20 pages at the front had been removed, as if a forger had removed pages used by the original owner of the scrapbook. Rendell and other experts including Dr Joe Nickell and Robert Kuranz ruled that the ink was new and the diary, therefore, was a fake. The book’s British publisher still went ahead with its release – hardly surprising considering the 200,000 pre-orders that had been placed.

Dear Boss Letter

The ‘Dear Boss’ letter is another hoax tied to Jack the Ripper, was allegedly written by the infamous Victorian killer in order to taunt Scotland Yard about their failure to bring an end to his gruesome crimes. The letter, written in red ink and containing spelling and punctuation mistakes, was initially considered to be one of many hoaxes, but when the body of Catherine Eddowes, the killer’s fourth victim, was found with one of her ears severed, the ‘Dear Boss’ letter attracted attention. Its author had threatened to ‘clip the ladys ears off’ – an apparent warning of the mutilation he would later inflict on Eddowes.

After the murders abruptly ceased in 1888, police officials stated that they believed the ‘Dear Boss’ letter and the ‘Saucy Jack’ postcard were hoaxes perpetrated by a local journalist. One journalist is even reported to have confessed to writing the correspondence in order to keep the story in the headlines. These suspicions were not well publicised at the time, and the idea that the killer had sent messages taunting the police became one of the most enduring legends of the Ripper case.

Howard Hughes’ Autobiography

In 1971, Clifford Irving, an American investigative reporter, forged an entire ‘autobiography’ of Howard Hughes – while the billionaire was still alive! Irving mistakenly believed that the reclusive 65-year-old billionaire, who hadn’t appeared in public since 1958, would be too ill to step forward and refute the authenticity of the autobiography.

With the help of his wife Edith, Irving forged not only the autobiography but also correspondence with Hughes in which the two men discussed the legal arrangements for the publication of the book. Book publisher McGraw-Hill guaranteed Irving and ‘Hughes’ an advance of $750,000 for the manuscript. Unfortunately for Irving, just before the book was to be published in 1972 the real Howard Hughes did come forward to expose the fraud. Irving was eventually sentenced to two and a half years in prison.

The Protocols of the Elders of Zion

The Protocols of the Elders of Zion is an anti-Semitic hoax which claims to outline Jewish plans for global domination. First published in Russia in 1903, the Protocols allegedly document the minutes of a 19th century meeting between Jewish leaders. Despite being revealed as a forgery by The Times of London in 1921, the work was presented as factual in German classrooms after the Nazis came to power in 1933.

Mussolini Diaries

One of the handwriting experts who authenticated the purported diaries of Italian dictator Benito Mussolini when they emerged in 1957 confidently concluded: “Thirty volumes of manuscripts cannot be the work of a forger.” “You can falsify a few lines or even pages, but not a series of diaries.” Despite his assertions that such a plethora of diaries could not be forged, an Italian woman named Amalia Panvini, with the help of her 84-year-old mother, had done just that. Apparently the counterfeit diaries were so convincing that even the dictator’s son, Vittorio, believed them to be authentic.

When the hoax was eventually discovered, Italian police confiscated most of Panvini’s work. However, despite the fact that the forgery case was widely publicised in Italy and throughout Europe, the Sunday Times of London purchased four remaining volumes two years later for a sizeable sum. Fortunately, the Times‘s editors caught their embarrassing mistake before publishing them.

Tenaka Memorial

The Tenaka Memorial claims to be a Japanese strategic planning document created in 1927, in which Prime Minister Baron Tanaka Giichi laid out for Emperor Hirohito a carefully-planned strategy for millitary domination of the world. First published in December 1929, the Tenaka Memorial contains the assertions:

  • In order to take over the world, you need to take over Asia;
  • In order to take over Asia, you need to take over China;
  • In order to take over China, you need to take over Manchuria and Mongolia.
  • If we succeed in conquering China, the rest of the Asiatic countries and the South Sea countries will fear us and surrender to us.
  • Then the world will realize that Eastern Asia is ours.

During World War II, the Tanaka Memorial was portrayed by the United States as a Japanese analog to Hitler’s Mein Kampf. Even though the authenticity of the document has been widely discredited by modern scholars, the Tanaka Memorial was generally considered to be authentic in the 1930s-1940s, largely because Japan’s actions corresponded so closely to plans outlined in the document: the 1931 Mukden Incident, the Second Sino-Japanese War in 1937, The Battles of Khalkhin Gol in 1939, the Japanese invasion of French Indochina in 1940, and the attack on Pearl Harbor in 1941 and the subsequent war in the Pacific all seemed to provide corroborating evidence of its authenticity. In the modern era, many scholars believe the document to be a Soviet forgery meant to encourage war between China and Japan, while at the same time advancing Soviet interests.

Lincoln’s Love Letters

In 1928, a California woman named Wilma Minor claimed to have inherited a treasure trove of material providing the first documented evidence of the love affair between Abraham Lincoln and Ann Rutledge. In them, ‘Beloved Ann’ professes, “if you git me the dictshinery…I no I can do both speeking and riting better…my hart runs over with hapynes when I think yore name…”. While slightly more literate, Lincoln’s letter to Rutledge is littered with anachronisms and signed “yours affectionately, Abe” – a nickname Lincoln despised.

Despite the crude and very obvious nature of the forgeries, The Atlantic Monthly published a series of articles based on the letters entitled “Lincoln the Lover: The Courtship” in January 1929. Almost as soon as the articles were published, numerous Lincoln scholars, including biographer Carl Sandburg, identified the letters as ridiculous fakes.

False Documents in the National Archives

Documents recently discovered buried deep within the National Archives reveal how British agents used the royal family to deceive the Nazis into expecting a pro-German putsch. The Duke of Windsor leaked state secrets to the Nazis in order to help Hitler. And, most sensationally of all, SS chief Heinrich Himmler was murdered by secret agents on Winston Churchill’s orders. The elaborate claims were revealed by historian Martin Allen in his book, Hidden Agenda, and read like the stuff of spy fiction. As it turned out, fiction is indeed what they are (and you can access the official list of these forgeries at the National Archives here).

Over the course of five years, Allen planted 29 fake documents in 12 separate files in the National Archives in order to underpin the outlandish theories proposed in his book. When the full extent of the deception was uncovered, Police interviewed Allen, who is believed to be the only person to check out all the files that contained the forged documents. After an extensive police investigation, the Crown Prosecution Service decided that it was not in the public interest to press charges, in part because of Allen’s deteriorating health.

 

Rob Carter is Senior Marketing Executive with ARK Group, a B2B publishing and events company providing products and services for the legal and information markets. ARK Group aim to help professionals and organisations work more intelligently by delivering reliable information and techniques that can be used to benchmark, instigate, develop and improve fundamental business processes and procedures. All 

 

Ian’s Legal Fact of the Week 8/17/15: Legal Fictions

A legal fiction is a fact that is assumed or created by courts in order to apply a legal rule. Most often a feature of common law systems, perhaps the best-known (and one of the most controversial) such fictions in the U.S. is the concept of corporate personhood. A long-standing rule was that only persons could sue or be sued; with the growth of corporations after the Industrial Revolution a legal fiction was created that corporations were also persons, thereby allowing corporations to be held liable for their debts. For another example, see my blog post on adultery law.

Lawyer Raises Prospect of ‘Trial by Combat’ in Lawsuit

In 2011 I wrote a blog about the archaic form of legal action known as trial by combat. In it, I mused about whether the right to trial by combat (also commonly called ‘wager of battle’ or ‘trial by battle’) to settle litigation might have survived as a legal right in the United States, given that the common law was deemed to have been ‘received’ into the U.S. following independence, and as this question has never been addressed by a U.S. court. While this was meant as a merely theoretical question, I did explore some more recent history in the U.K. where this issue had come up, as well as the history of the action and its repeal by Parliament in the early nineteenth-century. But just when you think such musings merely exist in the realm of fantasy and the esoteric, occupying the thought processes of legal historians with too much time on their hands, comes this legal gem: last week a Staten Island attorney has raised the prospect of demanding trial by combat in his defense to a lawsuit.

This is one thing I love about legal history: every so often a vestige of the past, mainly gone and forgotten, pops up its ghostly head again (for another example, see my blog about breach of promise to marry lawsuits in North Carolina). As chronicled in the Washington Post online, Richard A. Luthmann has raised this prospect in his response to a suit brought against him before the Supreme Court of N.Y., Richmond county. In his reply (best described as “colorful”; you can view the Lutthmann filing here) is this surprising statement: “Defendant invokes the common law writ of right and demands his common law right to Trial By Combat as against Plaintiffs and their counsel, whom plaintiff wishes to implead into the Trial By Combat by writ of right.” He then goes on the explain at some length the history of trial by combat, and grounds his argument in the 9th Amendment (which preserves rights of the people not specifically enumerated in the Constitution).

Lest you think that Attorney Luthmann’s admitted enthusiasm for the HBO series “Game of Thrones” ( which graphically depicts trial by combat, among its other distractions) has blinded him to the possible consequences of judicial dueling, he admits in his pleading that “[o]ne of the inconveniences of this procedure is, that the party who institutes it must be willing, if required, to stake his life in support of his accusation”.

As I said before, this would give new meaning to the expression “fighting it out in court.”

 

 

 

 

Ian’s Legal Fact of the Week 5/4/15: Composition of the Supreme Court

The Supreme Court is provided for in Article 3, Section 1 of the Constitution, but only the Chief Justice is specifically mentioned (in Article 1, Section 3). The number of other “Judges of the Supreme Court”  (Article 2, Section 2) is not specified. Originally it was set at six justices in 1790, and has consisted of as many as ten. In 1869 it was set at nine justices which has remained the standard since that time.

Ian’s Legal Fact of the Week 4/20/2015: “Of the People”

While it is commonly thought that the phrase “of the people, by the people, for the people” is a description of our government that is found in the Constitution, the language actually comes from Lincoln’s 1863 Gettysburg Address.

Ian’s Legal Fact of the Week 4/13/15: Taxation Without Representation

Since 2000, license plates for the District of Columbia display the slogan “Taxation Without Representation”, to reflect the fact that D.C. has no voting representatives in Congress. It does, however, send a non-voting delegate to the House of Representatives, and has 3 electoral votes by virtue of the 23rd Amendment. The phrase has its origins in the political slogan “no taxation without representation” which emerged in the 1750s onwards in the American colonies and Ireland to protest English taxation policies.

Ian’s Legal Fact of the Week 4/6/2015: The Fugitive Slave Clause

The Fugitive Slave Clause is found in Article 4, Clause 3 of the Constitution, which states that “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” While never repealed (an attempt to do so in 1864 failed), the passage of the Thirteenth Amendment abolishing slavery effectively invalidated this provision.

 

Ian’s Legal Fact of the Week: 3/30/2015: A Republican Form of Government

Article 4, Section 4, Clause 1 of the Constitution states that the United States “shall guarantee to every State in this Union a Republican Form of Government….” Sometimes referred to as the Guarantee Clause, the definition of “republican” government is not set out in the Constitution. While the meaning was litigated in the case of Luther v. Borden, 48 U.S. 1 (1849), the Court declared that this was a political question to be resolved by Congress. The Guarantee Clause is one of the least-litigated and explored clauses of the Constitution.

Ian’s Legal Fact of the Week 3/23/15: The Number of Laws in the U.S.

Want to guess the number of federal laws in the U.S.? Good luck– even the Library of Congress doesn’t know. While this is one of the most popular questions asked of the Library’s reference librarians, they point out that simply tallying the number of entries in the 125+ volumes of the Statutes at Large compendium would not suffice. Some laws repeal or amend previous laws, and the Statutes also do not include regulatory provisions or case law that has the force of law. On the state level, it is estimated that approximately 40,000 new state laws take effect every year. Unsurprisingly, there is also no reliable estimate as to the number of state laws in the U.S.

Online Legal Education

Feb15NJ

I was pleased to have the opportunity to share some thoughts about distance learning in legal education in the National Jurist a few weeks ago. As the article just came out–you can read it here (Education Anywhere February 2015) — I wanted to add a few more thoughts about online learning.

Recently a colleague asked me whether there was a ‘learning curve’ for our students with respect to using technology, more specifically distance learning technology. The question seemed particularly germane for our program, he added, given that many of the ELLM students have 20 years or more of work experience and might not be expected to be very tech savvy. My response to this was that our students are essentially using many of the tools they already utilize in their everyday professional and personal lives. Legal and business practitioners routinely use Outlook, Skype/Adobe Connect, social media, Google Docs, text messaging and related programs and technology every day. The specific functionality used in a specific program or course may be different, but typically that is quickly learned since it is technology with which most of us are already familiar.

Distance learning has, in many ways, ‘democratized’ education as it transcends borders and time zones and, depending on the model, is delivered without traditional economic barriers to entry (a typical MOOC comes to mind in this regard). It certainly affords students a degree of flexibility that is not present in a typical residential-based model of learning. Incidentally, you can also read BU’s short ELLM blog on the topic as well

Legal education is in some ways a bit of a paradox. We replaced the traditional, centuries-old ‘apprentice’ model of legal education–where law students learned from practicing lawyers and attended lectures on the side, typically at night– with a model that was based on a three-year program of study of classroom lectures and the so-called ‘Socratic method’ and case studies….a model, incidentally, where one could take a year-long course on Contracts and never actually see a contract, let alone try to draft one, and be taught by an instructor who may never have drafted one him/herself. In recent decades we began to add clinics and other experiential learning, because it seemed we graduated lawyers who knew little or nothing about actual legal practice. Law schools, the ABA and professional legal associations continue to reevaluate the traditional model and there is a sense of urgency about graduating students who are (a) saddled with less debt and (b) have more marketable and practical skills. Will we abandon the three year model? Will we essentially revert back to what legal education used to be, where there was an emphasis on working knowledge coupled with the academic? I don’t necessarily feel qualified to prognosticate about what additional changes are in store, but we are clearly in the midst of a sea change in the manner in which legal education is structured and conveyed. A greater combination of the theoretical and practical study of law, over a shorter period of time than the traditional three years, seems to me to not be a very daring prediction.