Law: They Do Not Know It Is Wrong

“You can buy now and then a Senator or a Representative; but they do not know it is wrong, and so they are not ashamed of it.” So says a cynical newspaperman to an equally cynical speculator in The Gilded Age by Mark Twain and Charles Dudley Warner. The speculator, though, sees virtues in the corrupt system: “We would have to go without the services of some of our ablest men, sir, if the country were opposed to–to–bribery. It is a harsh term. I do not like to use it.” John T. Noonan Jr., 58, professor of law at the University of California, Berkeley, feels quite differently about the term. In a monumental new book bluntly titled Bribes (Macmillan; $29.95), he applies the word to figures as distinguished as Francis Bacon and Thomas a Becket, and to a whole array of U.S. Presidents: Monroe, Garfield, Johnson, Nixon. Noonan’s 5,000-year chronicle of scandals is deplorably entertaining, but what is still more interesting is his demonstration of how the whole concept of bribery has evolved.

Noonan inevitably begins by attempting a definition: “A bribe is an inducement improperly influencing the performance of a public function meant to be gratuitously exercised.” Fair enough, but what is an inducement? What is improper? At the very dawn of human society, Noonan argues, the offering of gifts for reciprocal services was a commonplace sign of good intentions. A roving tribesman might offer some bright stone to a stranger simply to show that he meant no violence. The most important strangers to be courted with such gifts were the divine forces that brought rain or wind, hence the tradition of sacrifices left hopefully on an altar. The results of such efforts could be vexing. The Lord accepted Abel’s offering of sheep but mysteriously rejected Cain’s fruit of the ground, and Cain, according to Genesis 4: 5, “was very wroth.”

The first judges who undertook to settle disputes were priestly figures credited with a semidivine authority, and they soon became accustomed to receiving gifts from litigants. The words for such offerings–shohadh in Hebrew or munus in Latin–were ambiguous; none of the classical languages had a specific term for a corrupting gift. Theoretically, even in Roman law a judge could accept contributions from both sides and still rule justly. Not until 1535 did Miles Coverdale use a Middle English term for stolen objects to translate a passage in Ecclesiastes as “all brybes and unrighteousness.”

King James I called on any citizen who knew of bribery of his judges to make a public accusation. One of the first to complain, John Wrenham, charged in 1617 that the learned Lord Chancellor Bacon had unfairly ruled against him. When Wrenham was unable to prove bribery, however, both his ears were cut off, after which he was “perpetually imprisoned.” Four years later, Bacon finally confessed to a whole array of bribes, and Parliament fined him (pounds)40,000 and sentenced him to the Tower. The King majestically commuted the penalties.

If a King’s minister could get off easily, a King himself was completely immune to bribery charges, but the American authors of the Constitution changed the rules. Article II specified that the President and “all civil officers” of the U.S. could be impeached for “treason, bribery or other high crimes and misdemeanors.” Not until 1853, however, was there a specific law against bribing a Congressman.

It was a law largely ignored. To get federal support for building the Union Pacific Railroad at vastly inflated costs, the Credit Mobilier conspirators handed out bargain-priced stocks to more than a score of Congressmen, including future President James Garfield and future Secretary of State James Blaine.

Despite the widespread acceptance of corruption, though, new laws kept gradually broadening the concept of bribery. In 1881 New York became the first state to make it a misdemeanor to bribe private citizens. During the next half century, 16 other states passed laws against bribing specific kinds of private employees: chauffeurs in Illinois, gardeners in Maryland.

Noonan credits a remarkable extension of bribery laws to a remark- able source: the Nixon Administration. Stretching precedents, Nixon-appointed prosecutors invoked the Hobbs Act of 1946, originally aimed at union racketeers, against the Democratic Kenny machine in Jersey City. When the convictions were upheld, federal prosecutors brought similar charges against local officials throughout the country, thus beginning what Noonan calls “an effective federalization of the law of bribery.”

The law had been slow to punish what it forbade. Not until the 1920s was the first Cabinet-level official convicted of bribery (former Interior Secretary Albert Fall in the Teapot Dome scandal). By the time of Watergate, the anticorruption ethic was so extensive that a number of Nixon officials ended up in jail after hush money was offered to the burglars. Noonan even suggests that the campaign against corruption may now conflict with other standards. Of the Foreign Corrupt Practices Act of 1977, which made it a crime for companies to bribe officials abroad, Noonan remarks that “no such law had ever been framed in this country or anywhere else.” And with the Abscam sting, he writes, the Justice Department simply went too far: “A moral government will not resort to foul means to enforce the ethic.”

One of the dangers in making ethical judgments is that the standards keep changing. Noonan suggests analogies to slavery, which was once considered acceptable in most of the world, and to usury, which was once considered morally reprehensible. He cites a series of arguments claiming that morality has little relevance to corruption, that many people take bribes and that all punishments are uneven and hypocritical. Having cited these arguments, Noonan rejects them all. Bribery, he concludes (a bit sententiously), is a betrayal of the public trust necessary for society’s survival. Beyond that, he sees a theological principle at work: “The imitation of God lies at the root of the bribery prohibition. God ‘does not take shohadh,’ the book of Deuteronomy proclaims.”