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[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.
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| 173 |
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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]
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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.
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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])
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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.
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[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.
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[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.
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| 174 |
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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.
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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.
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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]
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[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.
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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.
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| 175 |
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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.
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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.
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| 176, 177 |
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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.
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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.
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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 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, 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.
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