Barratry, Champerty, and Maintenance

How old were you when you learned the meaning of the word “Mommy”? Where were you when you learned the meaning of the word “paradigm”? When we are young, our brains are like little sponges, absorbing all we see and hear. After that, we learn a bit more slowly, and we tend to remember the circumstances under which we learn something new. I don’t remember when I learned the meaning of the word “baseball” but I remember, to within a few months, when I learned the meanings of the words “barratry” and “champerty”.

Sam Ervin Jr. became a United States Senator from the state of North Carolina, my home state, when I was a bit more than a year and a half old, and retired during my senior year in college, some 20 years, five months, and 20 days after taking the oath of office. He was born in 1896, a mere 19 ½ years after the end of Reconstruction, an event that made Ervin and most of his generation of fellow North Carolinians Democrats. He was the product of his time. Like many orators of his age, he knew his King James Bible and his Shakespeare, but he also knew funny tales of his fellow man. He belonged to a political species that is now extinct: the conservative Democrat.

Most people my age who have heard of Senator Sam know him from the Watergate hearings, as he chaired the Select Committee on Presidential Campaign Activities (aka, the Senate Watergate Committee). Those of us who grew up with Sam Ervin Jr. as our senator had the opportunity to hear him speak, and to marvel at his elegance with words. Once, when giving a Confederate Memorial Day address, I even stole from Senator Sam, referring to our honored dead as having descended into “the tongueless silence of the dreamless dust”. I did not know at the time that he had stolen that line from Robert G. Ingersoll, but that does not matter. If I had not heard the Senator use that phrase, regardless of its origin, it would have been lost to me.

He could tell a funny story, as well. These tales are generally not knee-slippers, but were used to make a point. There is the story of George, a teen-aged youth, who was hired to remove the weeds and briars from the grave of a dead relative of his employer. George started his work, but then suddenly burst out laughing so hard that he could no longer finish his work. “What are you laughing about,” his employer asked. “Boss,” he said, “I’m laughing at them funny words on this gravestone.” “George, I don’t see any funny words on the gravestone.” “Look here, Boss,” replied George. “It says ‘not dead but sleeping’. He ain’t fooling anybody but himself.”

After serving on the Watergate Committee and achieving his moment of national fame, he retired to his home in Morgantown, NC, and wrote his memoirs. The problem is that he let a few too many years pass between his moment of fame (1974) and the publication of his memoirs (1984). With Watergate 10 years in the rear-view mirror, and with the Reagan Revolution in full swing, he seemed a quaint but not very interesting bit of the past. He had trouble finding a publisher. He ended up having the book published by The Michie Company, a publishing firm in Charlottesville Virginia, which handled the state of Virginia’s legal publishing (annotated state statutes, state agency publications, and, as Wikipedia puts it, “other reference publications used by the legal profession”). I can’t imagine that Michie had the budget to promote the book that, say, a Simon and Schuster would have had, but there you have it. Timing is everything in this business.

I bought the book in early 1985, and in a chapter entitled “Illustrative Judicial Aberrations” I found a reference to a 1963 Supreme Court ruling in the case of NAACP v. Button, in which the Supreme Court “held that the First Amendment rights of freedom of expression and association prohibited Virginia from prosecuting the NAACP and its attorneys for violating its laws against barratry, champerty, and maintenance”.

Barratry, champerty, and maintenance?

I didn’t have the internet in 1985, so I was limited to what my dictionary contained. The closest word I could find to “barratry” was “barracking,” a rough synonym for heckling or abusing. A friend, who is a patent attorney, later loaned me a copy of a legal dictionary, where I determined that “barratry” was “litigation for the purpose of harassment”, what I think we would call today the “frivolous lawsuit”.

Champerty is something else. Let’s take a hypothetical situation. Let’s say Tim Cook is President of the United States, and is no longer the big boss at Apple, but he still has shares of Apple, from which he can profit if Apple does well. Let’s say a foreign dignitary buys a MacBook Air. I decide that constitutes an emolument. Yes, I know, money was exchanged for a product or service, and not given as a gift, so it can’t be an emolument, but go along with me on this one. I decide I don’t like President Cook, so I file a lawsuit, claiming he violated the Emoluments Clause of the Constitution. I don’t expect the suit to go anywhere, as it clearly has no basis, but it will harass and generally incommode President Cook. I have engaged in barratry.

But let us stipulate further that I really don’t have the money to go through with the suit. I find a sugar daddy, another person who dislikes President Cook, and who will be happy to see him inconvenienced. Sugar Daddy pays for the suit, and we both enjoy the spoils. Sugar Daddy has engaged in maintenance, and if there is a monetary reward at the end of the case in which he shares, Sugar Daddy has also engaged in champerty.

So why did these archaic terms come to mind? Last night, at a bit after 9:00, I found myself in my pickup, in the metropolis of Rutledge, Georgia (population 820). I remembered it was debate night, so I flipped on the radio to listen to the debate during my 10 minutes ride home. After a few minutes the word “barratry” formed in my mind. I was not remembering the actual definition, but my early guess at the definition, back before I borrowed that legal dictionary: the act of abusing. Stereo barracking.

I arrived home, and turned on a humorous podcast (Kimmer Show podcast: check it out.) I hope this election ends soon.