Free Political Institutions

Their Nature, Essence, and Maintenance

An Abridgment and Rearrangement of Lysander Spooner's "Trial by jury"

EDITED BY

VICTOR YARROS

LONDON

C. W. DANIEL, LTD.

3, Amen Corner, E.C.

1912

CHAPTER 7: 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 defense of an unjust suit. 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 case was so evident as to make him inexcusable in bringing it before the courts.

The 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 necessitynamely, 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 redress his own wrongs and enforce his own rights. 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 reputation 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 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.

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 principles 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 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 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 they to bear the loss, to spend money in the defense. Under the prevailing system, in which the parties pay the expense 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 victims to little, if any, 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 of amercing a party for troubling the court with groundless suits should be adopted, 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.