216 lines
12 KiB
Markdown
216 lines
12 KiB
Markdown
CHAPTER VIII.
|
|
|
|
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.
|
|
|
|
[Footnote 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.]
|
|
|
|
[Footnote 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.]
|
|
|
|
[Footnote 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.]
|
|
|
|
[Footnote 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.]
|