Bribery

Roots. Like many American legal concepts, the notion of bribery has its roots in the ancient Near East. As in most archaic societies, peaceful relations with strangers were here established in two ways, by gift and by contract. The gods or God were similarly made approachable by offerings or covenants. Against the norm of reciprocal relations ran two concepts. First, the ruler was the protector of the powerless, of "the widow and the orphan," as texts from Lagash (2400 B.C.), Babylon (1700 B.C.), and Israel (600 B.C.) expressed it. Second, man was judged by the gods impartially, as shown by the sales in the judgment scene of the Egyptian Book of the Dead (2500 B.C.). A ruler who aids the powerless is not responsive to gifts, nor is one who judges in the place of the gods. These religious insights crystallized in an image of a judge who does not take gifts for his judgment, an ideal apparent in Egyptian texts by 1500 B.C. The ideal received an expression of great influence on Western culture in Deuteronomy (seventh century B.C.), where it was stated that God in judging "does not take reward" (Deut. 10:17) and man in judging should not "take reward" (Deut. 16:19). The total biblical message on reciprocity was mixed but provides the main religious outlook from which the bribery prohibition of the West developed.

Biblical hostility to bribery was reinforced by a political tradition that appeared in the Greek city-states and had a strong impact on the ideals of the Roman Republic. The classic expression was provided by Cicero in his prosecution of Verres (whose name in Latin means "hog"), among the worst of whose offenses was "taking money for judgment," a crime described as "the foulest" (Against Verres, pp. 2, 3, 78). The essential sanction was supernatural, and climactically Cicero called on various gods to punish Hog.

The antibribery ethic, reflecting the biblical and classical sources, was conveyed by Christian moralists like Augustine and reinforced by the special aversion developed against a subspecies of bribery, the sin of simony, or sale of spiritual offices or goods. Denounced as a heresy, simony was the periodic object of reformers from Gregory I (A.D. 600) to Gregory VII (A.D. 1073). The notion of a spiritual domain that should not be sold complemented that of nonvendible justice. Papal pronouncements such as Innocent III's Qualiter et quando of 1205 (Gregory IX, "Decretales") insisted that judges must put aside "favor and fear" and "have God alone before their eyes."

Secular law followed suit. The antibribery ethic was firmly set out in Henry de Bracton's great mid-thirteenth-century treatise on English law (pp. 302–303), where the taking of bribery was condemned by biblical and Roman law and the judge who takes was said to be "corrupted by filth." Two notions, central to the idea of a judge in English law, were embodied in the antibribery ethic: trust should not be betrayed, acts of judgment cannot be sold. All subsequent development flows from these two ideas.

Literature and linguistics. The strongest teacher of the prohibition of bribery was literary. At the center of the European tradition stood Dantes Divine Comedy, in which bribery and simony constituted sins of fraud, more reprehensible than sins of violence because they involved misuse of man's intellect; those who sold secular justice were punished even more severely than the ecclesiastics, by immersion in a boiling, sticky pitch. Lucca, where "No becomes Yes for money," is eternally stigmatized as a symbol of civic corruption (Inferno, canto 21). Shakespeare fixed the English literary-moral tradition, especially with passages on bribes and corruption in Julius Caesar (act 4, scene 3) and with an entire play, Measure for Measure, which contrasts Christian spiritual reciprocities with foul redemption by a bribe. From Shakespeare to Henry Adams (Democracy) and Robert Penn Warren (All the King's Men), the moral offensiveness of criminal bribery has been a significant theme in English and American literature.

The classical languages had a single word—shohadh in Hebrew, doron in Greek, and munus in Latin—meaning gift, reward, bribe. The ambiguity reflected moral and legal ambivalences. By the sixteenth century, English used bribe unambiguously in its present moral and legal sense. By the same period to bribe, bribery, and briber were in use, as well as the colloquial expression to grease, meaning to bribe. Bribee, graft, and grafter are nineteenth-century terms, the latter two American. Slush fund, a source from which bribes are paid, and payoff are twentieth-century Americanisms. The association of bribes with dirt, dirty hands, and grease goes back to classical times. Euphemisms for bribe are gift, gratuity, reward, contribution, and kickback. Conflict of interest is sometimes used for a good-faith dilemma, sometimes as a euphemism for a situation produced by bribery.

Paradigms. In the Anglo-American tradition there have been several cases in which the defendant was so prominent that his prosecution was exemplary. (1) The paradigmatic trial of a bribe-taking judge was that of Francis Bacon, chancellor of England, convicted by the House of Lords in 1621. (2) The classic trial of a corrupt administrator was that of Governor-General Warren Hastings of Bengal, impeached by the House of Commons in 1787. Although ultimately acquitted, Hastings was irretrievably damaged in reputation, and his prosecution by Edmund Burke, modeled on Cicero's of Hog, set the standards for the nineteenth-century British civil service. (3) The trial of Oakes Ames, a Massachusetts congressman and a central figure in the Union Pacific–Credit Mobilier scandal, served as a double paradigm for bribers and legislators. Ames was censured by the House of Representatives in 1873 for bribing members of Congress. Legislative investigation created each paradigm. In each, multiple acts of bribery were established. The essential sanction in each was public shame.