The free administration of justice was a principle of the common
law; and it must necessarily be a part of every system of
government which is not designed to be an engine in the hands of
the rich for the oppression of the poor.
In saying that the free administration of justice was a principle
of the common law, I mean only that parties were subjected to no
costs for jurors, witnesses, writs, or other necessaries for the
trial, preliminary to the trial itself. Consequently, no one
could lose the benefit of a trial, for the want of means to
defray expenses. But after the trial, the plaintiff or defendant
was liable to be amerced, (by the jury, of course,) for having
troubled the court with the prosecution or defence of an unjust
suit.
[1] But it is not likely that the losing party was subjected to
an amercement as a matter of course, but only in those cases
where the injustice of his cause was so evident as to make him
inexcusable in bringing it before the courts.
All the freeholders were required to attend the courts, that they
might serve as jurors and witnesses, and do any other service
that could legally be required of them; and their attendance was
paid for by the state. In other words, their attendance and
service at the courts were part of the rents which they paid the
state for their lands.
The freeholders, who were thus required always to attendthe
courts, were doubtless the only witnesses who were usually
required in civil causes. This was owing to the fact that, in
those days, when the people at large could neither write nor
read, few contracts were put in writing. The expedient adopted
for proving contracts, was that of making them in the presence of
witnesses, who could afterwards testify to the transactions. Most
contracts in regard to lands were made at the courts, in the
presence of the freeholders there assembled. [2]
In the king's courts it was specially provided by Magna Carta
that "justice and right" should not be "sold;" that is, that the
king should take nothing from the parties for administering
justice.
The oath of a party to the justice of his cause was all that was
necessary to entitle him to the benefit of the courts free of all
expense; (except the risk of being amerced after the trial, in
case the jury should think he deserved it. [3])
This principle of the free administration of justice connects
itself necessarily with the trial by jury, because a jury could
not rightfully give judgment against any man, in either a civil
or criminal case, if they had any reason to suppose he had been
unable to procure his witnesses.
The true trial by jury would also compel the free administration
of justice from another necessity, viz., that of preventing
private quarrels; because, unless the government enforced a man's
rights and redressed his wrongs, free of expense to him, a jury
would be bound to protect him in taking the law into his own
hands. A man has a natural right to enforce his own rights and
redress his own wrongs. If one man owe another a debt, and refuse
to pay it, the creditor has a natural right to seize sufficient
property of the debtor, wherever he can find it, to satisfy the
debt. If one man commit a trespass upon the person, property or
character of another, the injured party has a natural right,
either to chastise the aggressor, or to take compensation for the
injury out of his property. But as the government is an impartial
party as between these individuals, it is more likely to do
exactjustice between them than the injured individual himself would
do. The government, also, having more power at its command, is
likely to right a man's wrongs more peacefully than the injured
party himself could do it. If, therefore, the government will do
the work of enforcing a man's rights, and redressing his wrongs,
promptly, and free of expense to him, he is under a moral
obligation to leave the work in the hands of the government; but
not otherwise. When the government forbids him to enforce his
own rights or redress his own wrongs, and deprives him of all means
of obtaining justice, except on the condition of his employing
the government to obtain it for him, and of paying the government
for doing it, the government becomes itself the protector and
accomplice of the wrong-doer. If the government will forbid a man
to protect his own rights, it is bound, to do it for him, free of
expense to him. And so long as government refuses to do this,
juries, if hey knew their duties, would protect a man in
defending his own rights.
Under the prevailing system, probably one half of the community
are virtually deprived of all protection for their rights, except
what the criminal law affords them. Courts of justice, for all
civil suits, are as effectually shut against them, as though it
were done by bolts and bars. Being forbidden to maintain their
own rights by force, as, for instance, to compel the payment of
debts, and being unable to pay the expenses of civil suits,
they have no alternative but submission to many acts of
injustice, against which the government is bound either to
protect them, free of expense, or allow them to protect
themselves.
There would be the same reason in compelling a party to pay the
judge and jury for their services, that there is in compelling
him to pay the witnesses, or any other necessary charges. [4]
This compelling parties to pay the expenses of civil suits is one
of the many cases in which government is false to the fundamental
principles on which free government is based. What is the object
of government, but to protect men's rights? On what principle
does a man pay his taxes to the government, except on that of
contributing his proportion towards the necessary cost of
protecting the rights of all? Yet, when his own rights are
actually invaded, the government, which he contributes to
support, instead of fulfilling its implied contract, becomes his
enemy, and not only refuses to protect his rights, (except at his
own cost,) but even forbids him to do it himself.
All free government is founded on the theory of voluntary
association; and on the theory that all the parties to it
voluntarily pay their taxes for its support, on the condition of
receiving protection in return. But the idea that any poor man
would voluntarily pay taxes to build up a government, which will
neither protect his rights, (except at a cost which he cannot
meet,) nor suffer himself to protect them by such means as may be
in his power, is absurd.
Under the prevailing system, a large portion of the lawsuits
determined in courts, are mere contests of purses rather than of
rights. And a jury, sworn to decide causes "according to the
evidence" produced, are quite likely, for aught they themselves
can know, to be deciding merely the comparative length of the
parties' purses, rather than the intrinsic strength of their
respective rights. Jurors ought to refuse to decide a cause at
all, except upon the assurance that all the evidence, necessary
to a full knowledge of the cause, is produced. This assurance
they can seldom have, unless the government itself produces all
the witnesses the parties desire.
In criminal cases, the atrocity of accusing a man of crime, and
then condemning him unless he prove his innocence at his own
charges, is so evident that a jury could rarely, if ever, be
justified in convicting a man under such circumstances.
But the free administration of justice is not only indispensable
to the maintenance of right between man and man; it would also
promote simplicity and stability in the laws. The mania for
legislation would be, in an important degree, restrained, if the
government were compelled to pay the expenses of all the suits
that grew out of it.
The free administration of justice would diminish and nearly
extinguish another great evil, that of malicious civil suits It
is an old saying, that "multi litigant in foro, non ut aliquid
lucentur, sed ut vexant alios." (Many litigate in court, not that
they may gain anything, but that they may harass others.) Many
men, from motives of revenge and oppression, are willing to spend
their own money in prosecuting a groundless suit, if they can
thereby compel their victims, who are less able than themselves
to bear the loss, to spend money in the defence. Under the
prevailing system, in which the parties pay the expenses of their
suits, nothing but money is necessary to enable any malicious man
to commence and prosecute a groundless suit, to the terror,
injury, and perhaps ruin, of another man. In this way, a court of
justice, into which none but a conscientious plaintiff certainly
should ever be allowed to enter, becomes an arena into which any
rich and revengeful oppressor may drag any man poorer than
himself, and harass, terrify, and impoverish him, to almost any
extent. It is a scandal and an outrage, that government should
suffer itself to be made an instrument, in this way, for the
gratification of private malice. We might nearly as well have no
courts of justice, as to throw them open, as we do, for such
flagitious uses. Yet the evil probably admits of no remedy except
a free administration of justice. Under a free system, plaintiffs
could rarely be influenced by motives of this kind; because they
could put their victim to little or no expense, neither pending
the suit, (which it is the object of the oppressor to do,) nor at
its termination. Besides, if the ancient common law practice
should be adopted, of amercing a party for troubling the courts
with groundless suits, the prosecutor himself would, in the end,
be likely to be amerced by the jury, in such a manner as to make
courts of justice a very unproitable place for a man to go to
seek revenge.
In estimating the evils of this kind, resulting from the present
system, we are to consider that they are not, by any means,
confined to the actual suits in which this kind of oppression is
practised; but we are to include all those cases in which the
fear of such oppression is used as a weapon to compel men into a
surrender of their rights.
[1] 2 Sullivan Lectures, 234-5. 3 Blackstone, 274-5, 376. Sullivan
says that both plaintiff's and defendants were liable to
amercement. Blackstone speaks of plaintiffs being liable, without
saying whether defendants were so or not. What the rule really
was I do not know. There would seem to be some reason in
allowing defendants to defend themselves, at their own charges,
without exposing themselves to amercement in case of failure.
[2] When any other witnesses than freeholders were required in a
civil suit, I am not aware of the manner in which their
attendance was procured; but it was doubtless done at the expense
either of the state or of the witnesses themselves. And it was
doubt less the same in criminal cases.
[3] "All claims were established in the first stage by the oath
of the plaintiff, except when otherwise specially directed by the
law. The oath, by which any claim was supported, was called the
fore-oath, or ' Praejuramentum,' and it was the foundation of his
suit. One of the cases which did not require this initiatory
confirmation, was when cattle could be tracked into another man's
land, and then the foot-mark stood for the fore-oath." 2
Palgrave's Rise and Progress, &c;., 114.
[4] Among the necessary expenses of suits, should be reckoned
reasonable compensation to counsel, for they are nearly or quite
as important to the administration of justice, as are judges,
jurors, or witnesses; and the universal practice of employing
them, both on the part of governments and of private persons,
shows that their importance is generally understood. As a mere
matter of economy, too, it would be wise for the government to
pay them, rather than they should not be employed; because they
collect and arrange the testimony and the law beforehand, so as
to be able to present the whole case to the court and jury
intelligibly, and in a short space of time. Whereas, if they were
not employed, the court and jury would be under the necessity
either of spending much more time than now in the investigation
of causes, or of despatching them in haste, and with little
regard to justice. They would be very likely to do the latter,
thus defeating the whole object of the people in establishing
courts.
To prevent the abuse of this right, it should perhaps be left
discretionary with the jury in each case to determine whether the
counsel should receive any pay and, if any, how much from the
government.