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 defense 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 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.[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 owes another a debt, and refuses 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 commits 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 wrongdoer. 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.[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 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 defense.
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 practiced, 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.