Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1917-08-15
NEW WRIT" LAW
UNCONSTITUTIONAL
FORMER CHIEF JUSTICE EMERY
so DECLARES.
BAYS ACT PROHIBITING THE ISSUING
OF wRrTs EXCEPT TO LAWYERS
VIOLATES COMMON RIGHT" OF

PEOPLE.
| Former Chief-Justice l.. A. Emery oil
Ellsworth comes to the defense OF the
common right" Of the people tor free &C.
cess to the courts as suitors for justice, in
letter declaring an act passed BY the last
| legislature, foroidding the issuing Of
writs except to lawyers, q violation OF
that right, without precedent or parallel,
| and unconstitutional. His letter TO the
Lewiston Journal follows:
To Editors Of the Leriston Journal:
In reading at the close OF its session the
Public Acts OF the legislature of 1917, 1
noted with surprise the following. viz:
cHxrrEa 81
An act relating to the issuing of blank
writs by clerks OF the supreme Judicial court
and superior courts, clerks and recorders OF
municipal and police courts and trial JUS
tices.
Clerks Of the supreme Judicial courts and
superior cos rts, clerks and recorders Of the
municipal and police courts and trial Jas
tices OF the State shall not sell or deliver any
blank writs or preeept< bearing the seal of
said courts and the signature of said clerks,
recorders and trial justices. 70 any person ex-
cept one who has been admitted rs an attor-
ney and counsel as Law, and solicitor and
counselor in ehsncery % accordance with the
laws OF this stase-tApproved March -. isi7.)
This legislation so seriously Affects the
due administration Of justice in this State
that II last after some reflection yield
to the conviction that protest ought to be
made against 1t.
l think the legislation is without
precedent or parallel, ct least in any com
mon-lsw state or country. It violates the
long esta olished common right" OF free
| access to the courts BY suitors for justice.
II also violates the constitutional right OF
the people Of Maine to have right and
justice administered freely and without
sale, completely and without denial"
After some research do not fnd il any
where stated or even intimated in statutes,
Except in the statute in question: ccuri
reports, or legal text books, that the
sutton must employ member Of the bar
! to begin or conduct his suit for him. On
the contrary, 1t seems TO have been as
sumed from Magma Chsrta down that .
sutton may personally begin and conduct
his own suit as OF common right" and
in this country IS OF constitutional right.
Thus Blackstone wrote e Bi. Com. z72j:
when n person hath received an injury
and thinks it worth his whiie to demand
. satisfaction for it, he Is to consider with
himself, or take advice, what redress the
Law has given for that injury and there
upon 10 to make application or suit to the
crown, the fountain Of all justice, for that
particular specific remedy which he is de-
termined, or advised, to pursue Black
stone further wrote Up. 274): "Even royal
writs are demandable OF common right"
In this country in Peck Y. Townsend
Il Peck IA, Tenn.l il was declared by the
court that ''original process must issue
without price ana without denial." In
May v. Williams II Ala. q, it was declared
by the court that . sutton cannot "be
compelled by law to employ counsel TO
conduct or defend his suit, but may him
self appear before any court and prosecute
or defend in propria persona" have
failed to find any Judicial intimation to
the contrary.
In this State the means provided for
instituting ordinary suits for the redress
Of injuries is the soriginai writ" bearing
the seal OF the proper court ana signed by
It's recording omcer. This writ that
officer is required to issue in term time or
vacation on payment OF the few cents
revenue tax { 4. s. Ch. 81, Sec. S, Oh. 50,
Sec. ~. Until the statute in question,
| such writs have always been issued a. his
right to any sutton demanding it, however
poor. Under the statute, however, the
application Of the sutton, II not himself q
member OF the bar, will be denied. He
will be told that he must apply to q MEM
| Der OF the bar for the desired writ. The
members OF the bar instead Of the State,
are thus made sstbe fountain Of justice"
Being thus given the monopoly, they can
grant or refuse ~rits to applicants at will.
They can impose such prices and other
conditions as they like. They are put un-
der no obligation to grant the writs to
any sutton. They thus have the power to
deprive some or all suitors OF all legal
remedy, and this in 4 State which
promised its people that they should have
right and justice administered ''freely and
without sale, completely and without de-
NAL"
II it be urged that there is no probs-
bility Of such oppressive action by mem
bers OF the bar, the answer Is that such
action 10 possible. Not what probably
will be done, but what can be done under
statute is the test OF its validity. To Be
coustit utiopsI statute should afford nc
means for the violation Of constitutional
right.
We find the members OF various county
bar associations agreeing upon scales o
minimum fees to be charged suitors en-
ploying them. This il perhaps moi
Objectionable, barring the ''Shermsr
Law" 90 long - suitors are not com
PEELED by Law to resort to them to Obtain
redress for their wrongs. 1t may, how
ever, be the means of . complete denia
OF justice to the poorer suitors, IL tn