214 lines
12 KiB
Markdown
214 lines
12 KiB
Markdown
# THE FREE ADMINISTRATION OF JUSTICE
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The free administration of justice was a principle of the common law;
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and it must necessarily be a part of every system of government which is
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not designed to be an engine in the hands of the rich for the oppression
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of the poor.
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In saying that the free administration of justice was a principle of the
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common law, I mean only that parties were subjected to no costs for
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jurors, witnesses, writs, or other necessaries for the trial,
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_preliminary to the trial itself_. Consequently, no one could lose the
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benefit of a trial, for the want of means to defray expenses. _But after
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the trial_, the plaintiff or defendant was liable to be amerced, (by the
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jury, of course,) for having troubled the court with the prosecution or
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defence of an unjust suit.[^99] But it is not likely that the losing
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party was subjected to an amercement as a matter of course, but only in
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those cases where the injustice of his cause was so evident as to make
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him inexcusable in bringing it before the courts.
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All the freeholders were required to attend the courts, that they might
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serve as jurors and witnesses, and do any other service that could
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legally be required of them; and their attendance was paid for by the
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state. In other words, their attendance and service at the courts were
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part of the rents which they paid the state for their lands.
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The freeholders, who were thus required always to attend the courts,
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were doubtless the only witnesses who were _usually_ required in _civil_
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causes. This was owing to the fact that, in those days, when the people
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at large could neither write nor read, few contracts were put in
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writing. The expedient adopted for proving contracts, was that of making
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them in the presence of witnesses, who could afterwards testify to the
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transactions. Most contracts in regard to lands were made at the courts,
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in the presence of the freeholders there assembled.[^100]
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In the king’s courts it was specially provided by Magna Carta that
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“justice and right” should not be “sold;” that is, that the king should
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take nothing from the parties for administering justice.
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The oath of a party to the justice of his cause was all that was
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necessary to entitle him to the benefit of the courts free of all
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expense; (except the risk of being amerced after the trial, in case the
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jury should think he deserved it.[^101])
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_This principle of the free administration of justice connects itself
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necessarily with the trial by jury, because a jury could not rightfully
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give judgment against any man, in either a civil or criminal case, if
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they had any reason to suppose he had been unable to procure his
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witnesses._
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The true trial by jury would also compel the free administration of
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justice from another necessity, viz., that of preventing private
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quarrels; because, unless the government enforced a man’s rights and
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redressed his wrongs, _free of expense to him_, a jury would be bound to
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protect him in taking the law into his own hands. A man has a natural
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right to enforce his own rights and redress his own wrongs. If one man
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owe another a debt, and refuse to pay it, the creditor has a natural
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right to seize sufficient property of the debtor, wherever he can find
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it, to satisfy the debt. If one man commit a trespass upon the person,
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property or character of another, the injured party has a natural right,
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either to chastise the aggressor, or to take compensation for the injury
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out of his property. But as the government is an impartial party as
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between these individuals, it is more likely to do _exact_ justice
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between them than the injured individual himself would do. The
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government, also, having more power at its command, is likely to right a
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man’s wrongs more peacefully than the injured party himself could do it.
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If, therefore, the government will do the work of enforcing a man’s
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rights, and redressing his wrongs, _promptly, and free of expense to
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him_, he is under a moral obligation to leave the work in the hands of
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the government; but not otherwise. When the government forbids him to
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enforce his own rights or redress his own wrongs, and deprives him of
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all means of obtaining justice, except on the condition of his employing
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the government to obtain it for him, _and of paying the government for
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doing it_, the government becomes itself the protector and accomplice of
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the wrong-doer. If the government will forbid a man to protect his own
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rights, it is bound to do it for him, _free of expense to him_. And so
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long as government refuses to do this, juries, if they knew their
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duties, would protect a man in defending his own rights.
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Under the prevailing system, probably one half of the community are
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virtually deprived of all protection for their rights, except what the
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criminal law affords them. Courts of justice, for all civil suits, are
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as effectually shut against them, as though it were done by bolts and
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bars. Being forbidden to maintain their own rights by force,—as, for
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instance, to compel the payment of debts,—and being unable to pay the
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expenses of civil suits, they have no alternative but submission to many
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acts of injustice, against which the government is bound either to
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protect them, _free of expense_, or allow them to protect themselves.
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There would be the same reason in compelling a party to pay the judge
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and jury for their services, that there is in compelling him to pay the
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witnesses, or any other _necessary_ charges.[^102]
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This compelling parties to pay the expenses of civil suits is one of the
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many cases in which government is false to the fundamental principles on
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which free government is based. What is the object of government, but to
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protect men’s rights? On what principle does a man pay his taxes to the
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government, except on that of contributing his proportion towards the
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necessary cost of protecting the rights of all? Yet, when his own rights
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are actually invaded, the government, which he contributes to support,
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instead of fulfilling its implied contract, becomes his enemy, and not
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only refuses to protect his rights, (except at his own cost,) but even
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forbids him to do it himself.
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All free government is founded on the theory of voluntary association;
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and on the theory that all the parties to it _voluntarily_ pay their
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taxes for its support, on the condition of receiving protection in
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return. But the idea that any _poor_ man would voluntarily pay taxes to
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build up a government, which will neither protect his rights, (except at
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a cost which he cannot meet,) nor suffer himself to protect them by such
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means as may be in his power, is absurd.
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Under the prevailing system, a large portion of the lawsuits determined
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in courts, are mere contests of purses rather than of rights. And a
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jury, sworn to decide causes “according to the evidence” produced, are
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quite likely, _for aught they themselves can know_, to be deciding
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merely the comparative length of the parties’ purses, rather than the
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intrinsic strength of their respective rights. Jurors ought to refuse to
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decide a cause at all, except upon the assurance that all the evidence,
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necessary to a full knowledge of the cause, is produced. This assurance
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they can seldom have, unless the government itself produces all the
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witnesses the parties desire.
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In criminal cases, the atrocity of accusing a man of crime, and then
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condemning him unless he prove his innocence at his own charges, is so
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evident that a jury could rarely, if ever, be justified in convicting a
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man under such circumstances.
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But the free administration of justice is not only indispensable to the
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maintenance of right between man and man; it would also promote
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simplicity and stability in the laws. The mania for legislation would
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be, in an important degree, restrained, if the government were compelled
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to pay the expenses of all the suits that grew out of it.
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The free administration of justice would diminish and nearly extinguish
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another great evil,—that of malicious _civil_ suits. It is an old
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saying, that “_multi litigant in foro, non ut aliquid lucrentur, sed ut
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vexant alios_.” (Many litigate in court, not that they may gain
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anything, but that they may harass others.) Many men, from motives of
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revenge and oppression, are willing to spend their own money in
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prosecuting a groundless suit, if they can thereby compel their victims,
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who are less able than themselves to bear the loss, to spend money in
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the defence. Under the prevailing system, in which the parties pay the
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expenses of their suits, nothing but money is necessary to enable any
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malicious man to commence and prosecute a groundless suit, to the
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terror, injury, and perhaps ruin, of another man. In this way, a court
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of justice, into which none but a conscientious _plaintiff_ certainly
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should ever be allowed to enter, becomes an arena into which any rich
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and revengeful oppressor may drag any man poorer than himself, and
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harass, terrify, and impoverish him, to almost any extent. It is a
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scandal and an outrage, that government should suffer itself to be made
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an instrument, in this way, for the gratification of private malice. We
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might nearly as well have no courts of justice, as to throw them open,
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as we do, for such flagitious uses. Yet the evil probably admits of no
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remedy except a free administration of justice. Under a free system,
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plaintiffs could rarely be influenced by motives of this kind; because
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they could put their victim to little or no expense, _neither pending
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the suit_, (which it is the object of the oppressor to do,) nor at its
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termination. Besides, if the ancient common law practice should be
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adopted, of amercing a party for troubling the courts with groundless
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suits, the prosecutor himself would, in the end, be likely to be amerced
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by the jury, in such a manner as to make courts of justice a very
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unprofitable place for a man to go to seek revenge.
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In estimating the evils of this kind, resulting from the present system,
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we are to consider that they are not, by any means, confined to the
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actual suits in which this kind of oppression is practised; but we are
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to include all those cases in which the fear of such oppression is used
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as a weapon to compel men into a surrender of their rights.
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[^99]: _2 Sullivan Lectures_, 234-5. _3 Blackstone_, 274-5, 376.
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Sullivan says that both plaintiffs and defendants were liable to
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amercement. Blackstone speaks of plaintiffs being liable, without saying
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whether defendants were so or not. What the rule really was I do not
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know. There would seem to be some reason in allowing defendants to
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defend themselves, _at their own charges_, without exposing themselves
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to amercement in case of failure.
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[^100]: When any other witnesses than freeholders were required
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in a civil suit, I am not aware of the manner in which their attendance
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was procured; but it was doubtless done at the expense either of the
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state or of the witnesses themselves. And it was doubtless the same in
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criminal cases.
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[^101]: “All claims were established in the first stage by the
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oath of the plaintiff, except when otherwise specially directed by the
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law. The oath, by which any claim was supported, was called the
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fore-oath, or ‘Præjuramentum,’ and it was the foundation of his suit.
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One of the cases which did not require this initiatory confirmation, was
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when cattle could be tracked into another man’s land, and then the
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foot-mark stood for the fore-oath.”—_2 Palgrave’s Rise and Progress_,
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&c., 114.
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[^102]: Among the necessary expenses of suits, should be reckoned
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reasonable compensation to counsel, for they are nearly or quite as
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important to the administration of justice, as are judges, jurors, or
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witnesses; and the universal practice of employing them, both on the
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part of governments and of private persons, shows that their importance
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is generally understood. As a mere matter of economy, too, it would be
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wise for the government to pay them, rather than they should not be
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employed; because they collect and arrange the testimony and the law
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beforehand, so as to be able to present the whole case to the court and
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jury intelligibly, and in a short space of time. Whereas, if they were
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not employed, the court and jury would be under the necessity either of
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spending much more time than now in the investigation of causes, or of
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despatching them in haste, and with little regard to justice. They would
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be very likely to do the latter, thus defeating the whole object of the
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people in establishing courts.
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To prevent the abuse of this right, it should perhaps be left
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discretionary with the jury in each case to determine whether the
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counsel should receive any pay—and, if any, how much—from the
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government.
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