To make it safe and proper for persons to perform judicial duties, subject to their personal responsibility for any errors of either ignorance or design, two things would seem to be important, if not indispensable, viz.:
1. That, as far as is reasonably practicable, all judicial proceedings should be in writing; that is, that all testimony, and all judicial opinions, even to quite minute details, should be in writing, and be preserved; so that judges may always have it in their power to show fully what their acts, and their reasons for their acts, have been; and also that anybody, and everybody, interested, may forever after have the means of knowing fully the reasons on which everything has been done; and that any errors, ever afterwards discovered, may be corrected.
2. That all judicial tribunals should consist of so many judges—within any reasonable number—as either party may desire; or as may be necessary to prevent any wrong doing, by any one or more of the judges, either through ignorance or design.
Such tribunals, consisting of judges, numerous enough, and perfectly competent to settle justly probably ninety-nine one-hundredths of all the controversies that arise among men, could be obtained in every village. They could give their immediate attention to every case; and thus avoid most of the delay, and most of the expense, now attendant on judicial proceedings.
To make these tribunals satisfactory to all reasonable and honest persons, it is important, and probably indispensable, that all judicial proceedings should be had, in the first instance, at the expense of the association, or associations, to which the parties to the suit belong.
An association for the maintenance of justice should be a purely voluntary one; and should be formed upon the same principle as a mutual fire or marine insurance company; that is, each member should pay his just proportion of the expense necessary for protecting all.
A single individual could not reasonably be expected to delay, or forego, the exercise of his natural right to enforce his own rights, and redress his own wrongs, except upon the condition that there is an association that will do it promptly, and without expense to him. But having paid his proper proportion of the expense necessary for the protection of all, he has then a right to demand prompt and complete protection for himself.
Inasmuch as it cannot be known which party is in the wrong, until the trial has been had, the expense of both parties must, in the first instance, be paid by the association, or associations, to which they belong. But after the trial has been had, and it has been ascertained which party was in the wrong, and (if such should be the case) so clearly in the wrong as to have had no justification for putting the association to the expense of a trial, he then may properly be compelled to pay the cost of all the proceedings.
If the parties to a suit should belong to different associations, it would be right that the judges should be taken from both associations; or from a third association, with which neither party was connected.
If, with all these safeguards against injustice and expense, a party, accused of a wrong, should refuse to appear for trial, he might rightfully be proceeded against, in his absence, if the evidence produced against him should be sufficient to justify it.
It is probably not necessary to go into any further details here, to show how easy and natural a thing it would be, to form as many voluntary and mutually protective judicial associations, as might be either necessary or convenient, in order to bring justice home to every man’s door; and to give to every honest and dishonest man, all reasonable assurance that he should have justice, and nothing else, done for him, or to him.
Section XXVII.
Of course we can have no courts of justice, under such systems of lawmaking, and supreme court decisions, as now prevail.
We have a population of fifty to sixty millions; and not a single court of justice, State or national!
But we have everywhere courts of injustice—open and avowed injustice—claiming sole jurisdiction of all cases affecting men’s rights of both person and property; and having at their beck brute force enough to compel absolute submission to their decrees, whether just or unjust.
Can a more decisive or infallible condemnation of our governments be conceived of, than the absence of all courts of justice, and the absolute power of their courts of injustice?
Yes, they lie under still another condemnation, to wit, that their courts are not only courts of injustice, but they are also secret tribunals; adjudicating all causes according to the secret instructions of their masters, the lawmakers, and their authorized interpreters, their supreme courts.
I say secret tribunals, and secret instructions, because, to the great body of the people, whose rights are at stake, they are secret to all practical intents and purposes. They are secret, because their reasons for their decrees are to be found only in great volumes of statutes and supreme court reports, which the mass of the people have neither money to buy, nor time to read; and would not understand, if they were to read them.
These statutes and reports are so far out of reach of the people at large, that the only knowledge a man can ordinarily get of them, when he is summoned before one of the tribunals appointed to execute them, is to be obtained by employing an expert—or so-called lawyer—to enlighten him.
This expert in injustice is one who buys these great volumes of statutes and reports, and spends his life in studying them, and trying to keep himself informed of their contents. But even he can give a client very little information in regard to them; for the statutes and decisions are so voluminous, and are so constantly being made and unmade, and are so destitute of all conformity to those natural principles of justice which men readily and intuitively comprehend; and are moreover capable of so many different interpretations, that he is usually in as great doubt—perhaps in even greater doubt—than his client, as to what will be the result of a suit.
The most he can usually say to his client, is this:
Every civil suit must finally be given to one of two persons, the plaintiff or defendant. Whether, therefore, your cause is a just, or an unjust, one, you have at least one chance in two, of gaining it. But no matter how just your cause may be, you need have no hope that the tribunal that tries it, will be governed by any such consideration, if the statute book, or the past decisions of the supreme court, are against you. So, also, no matter how unjust your cause may be, you may nevertheless expect to gain it, if the statutes and past decisions are in your favor. If, therefore, you have money to spend in such a lottery as this, I will do my best to gain your cause for you, whether it be a just, or an unjust, one.
If the charge is a criminal one, this expert says to his client:
You must either be found guilty, or acquitted. Whether, therefore, you are really innocent or guilty, you have at least one chance in two, of an acquittal. But no matter how innocent you may be of any real crime, you need have no hope of an acquittal, if the statute book, or the past decisions of the supreme court, are against you. If, on the other hand, you have committed a real wrong to another, there may be many laws on the statute book, many precedents, and technicalities, and whimsicalities, through which you may hope to escape. But your reputation, your liberty, or perhaps your life, is at stake. To save these you can afford to risk your money, even though the result is so uncertain. Therefore you had best give me your money, and I will do my best to save you, whether you are innocent or guilty.
But for the great body of the people,—those who have no money that they can afford to risk in a lawsuit,—no matter what may be their rights in either a civil or criminal suit,—their cases are hopeless. They may have been taxed, directly and indirectly, to their last dollars, for the