trial-by-jury-book/edited/08.markdown

# THE FREE ADMINISTRATION OF JUSTICE


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.[^99] 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 attend the 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.[^100]

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.[^101])

_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 _exact_ justice
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 they 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.[^102]

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 lucrentur, 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
unprofitable 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.

[^99]: _2 Sullivan Lectures_, 234-5. _3 Blackstone_, 274-5, 376.
    Sullivan says that both plaintiffs 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.

[^100]: 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 doubtless the same in
    criminal cases.

[^101]: “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 ‘Præjuramentum,’ 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.

[^102]: 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.