Jeremy Bentham
A Protest against Law Taxes
[First published in 1795]
1
A PROTEST AGAINST LAW - TAXES, SHEWING THE PECULIAR
MISCHIEVOUSNESS OF ALL SUCH IMPOSITIONS AS ADD TO THE
EXPENSE OF APPEAL TO JUSTICE. By JEREMY BENTHAM OF
LINCOLN'S INN, ESQ.
A PROTEST AGAINST LAW - TAXES.
Taxes on law-proceedings constitute in many, and perhaps in all
nations, a part of the resources of the state. They do so in Great
Britain: they do so in Ireland. In Great Britain, an extension of them
is to be found among the latest productions of the budget: in
Ireland, a further extension of them is among the measures of the
day. It is this impending extension that calls forth the publication of
the present sheets, the substance of which has lain upon the shelf
these many years.
It is a well-known parliamentary saying, that he who reprobates a tax
ought to have a better in his hand.
1
A juster condition never was
imposed. I fulfil it at the first word. My better tax is--any other that
can be named.
The people, when considered with a view to the manner in which
they are affected by a tax of this description, may be distinguished
into two classes: those who in each instance of requisition have
wherewithal to pay, and those who have not: to the former, we shall
find it more grievous than any other kind of tax, to the latter a still
more cruel grievance.
Taxes on consumption cannot fall but where there is some fund to
pay them: of poll taxes, and taxes on unproductive property, the
great imperfection is, that they may chance to bear where such
ability may be wanting. Taxes upon law-proceedings fall upon a man
1 It confines itself of course to public men, or what comes to the same thing,
private men speaking in the character of public. As for individuals aggrieved,
they have performed their part when they have stated their own grievance.
2
just at the time when the likelihood of his wanting that ability is at
the utmost. When a man sees more or less of his property unjustly
withholden from him, then is the time taken to call upon him for an
extraordinary contribution. When the back of the innocent has been
worn raw by the yoke of the oppressor, then is the time which the
appointed guardians of innocence have thus pitched upon for
loading him with an extraordinary burthen.
2
Most taxes are, as all
taxes ought to be, taxes upon affluence: it is the characteristic
property of this to be a tax upon distress.
A tax on bread, though a tax on consumption, would hardly be
reckoned a good tax; bread being reckoned in most countries where
it is used, among the necessaries of life. A tax on bread, however,
would not be near so bad a tax as one on law-proceedings: A man
who pays to a tax on bread, may, indeed, by reason of such
payment, be unable to get so much bread as he wants, but he will
always get some bread, and in proportion as he pays more and more
to the tax, he will get more and more bread. Of a tax upon justice,
the effect may be, that after he has paid the tax, he may, without
getting justice by the payment, lose bread by it: bread, the whole
quantity on which he depended for the subsistence of himself and
his family for the season, may, as well as any thing else, be the very
thing for which he is obliged to apply to justice. Were a three-penny
stamp to be put upon every three-penny loaf, a man who had but
three-penny to spend in bread, could no longer indeed get a three-
penny loaf, but an obliging baker could cut him out the half of one.
A tax on justice admits of no such retrenchment. The most obliging
stationer could not cut a man out half a latitat nor half a declaration.
Half justice, where it is to be had, is better than no justice: but
without buying the whole weight of paper, there is no getting a
grain of justice.
2 Even in the instance of a defendant, or when the wrong is not pecuniary,
the hardship of a double yoke does not cease: for the natural expense of
litigation is a burthen which this artificial one finds pressing on him in any
case.
3
A tax on necessaries is a tax on this or that article, of the
commodities which happen to be numbered among necessaries: a
tax on justice is a tax on all necessaries put together. A tax on a
necessary of life can only lessen a man's share of that particular sort
of article: a tax on justice may deprive a man, and that in any
proportion, of all sorts of necessaries.
This is not yet the worst. It is not only a burthen that comes in the
train of distress, but a burthen against which no provision can be
made.
All other taxes may be either foreseen as to the time, or at any rate
provided for, where general ability is not wanting: in the instance of
this tax, it is impossible to foresee the moment of exaction, it is
equally impossible to provide a fund for it. A tax to be paid upon
the loss of a husband, or of a father on whose industry the family
depended, a tax upon those who have suffered by fire or inundation
would seem hard, and I know not that in fact any such modes of
taxation have ever been made choice of: but a tax on law-
proceedings is harder than any of these. Against all those
misfortunes, provision may be made; it is actually made in different
ways by insurance: and, were a tax added to them, pay so much
more, and you might insure yourself against the tax. Against the
misfortune of being called upon to institute or defend one's self
against a suit at law, there neither is nor can be, any office of insurance.
3
3 I say there never can be: in those other instances the event insured against is
always some very simple event, such as the death of a person, which in the
ordinary course of things is not open to dispute. Here the incident which calls
for contribution, is not only disputable, but by the supposition is actually in
dispute. Nothing less than litigation can ascertain legally, whether litigation has
been necessary. Have you engaged with a man for his paying you a sum of
money whenever it shall become necessary for you to institute or defend
yourself against a law-suit?--wait till the suit is at an end, and you will know
whether he ought to pay you. A society indeed, and a very laudable one, has
been established for purposes which come under this head: but the relief it
affords is confined not only to criminal cases, but to a certain description of
4
Such is the cruelty of this species of tax, to those who have
wherewithal to pay, and do pay to it accordingly. To those who do
not, it is much more cruel: it is neither more nor less than a denial of
justice.
Justice is the security which the law provides us with, or professes to
provide us with, for every thing we value, or ought to value: for
property, for liberty, for honour, and for life. It is that possession
which is worth all others put together: for it includes all others. A
denial of justice is the very quintessence of injury, the sum and
substance of all sorts of injuries. It is not robbery only, enslavement
only, insult only, homicide only: it is robbery, enslavement, insult,
homicide, all in one.
The statesman who contributes to put justice out of reach, the
financier who comes into the house with a law-tax in his hand, is an
accessary after the fact to every crime: every villain may hail him
brother, every malefactor may boast of him as an accomplice. To
apply this to intentions would be calumny and extravagance. But as
far as consequences only are concerned, clear of criminal
consciousness and bad motives, it is incontrovertible and naked
truth.
Outlawry is the engine applied by the law, as an instrument of
compulsion to those who fly from civil justice. Outlawry is the
engine employed as an instrument of punishment, against the most
atrocious of malefactors. This self-same load of mischief, the
financier with perfect heedlessness, but with unerring certainty,
heaps on the head of unsuspected innocence. Besides outlawry,
which in the cases where the offender could not otherwise be
affected, comes in as subsidiary in lieu of other punishment, there
are certain offences for which a man is subjected, expressly and in
criminal cases; nor could it be rendered any thing like co-extensive with the
grievance.
5
the first instance, to a similar punishment, under the name of
forfeiture of the protection of the law. The same fate attends a man thus
at different periods, according to his merits. If guilty, it lays hold of
him after conviction, for a particular cause, and without excluding
the hope of pardon: if innocent, and poor, and injured--before
conviction, and without conviction, and for no cause at all, and as
long as he continues poor, that is, as long as he lives.
What a contrast! What inconsistency! The judge and the legislator,
deliberating with all gravity, each in his separate sphere, whether to
inflict or not this heavy punishment, on this or that guilty individual,
or narrow description of guilty individuals. The legislator on the
other hand, merely to get a little money which he could better get
from any other source whatever, heaping the same doom upon
thousands, not to say millions, of innocent and injured subjects,
without consideration or remorse.
Mark well, that of all sorts of men, it is the poor, and they the more
certainly in proportion to their poverty, that are despoiled in this
way of the protection of the law: the protection of the law, that
inestimable jewel, which in the language of that very law is defined
the citizen's universal and best birth-right: the poor and him that has
none to help him, these are they to whom the help of the law is thus
unfeelingly refused. The rich, were it from them that this great
safeguard were withholden, have shields of their own to ward off
the attacks of injury: the natural influence of wealth, the influence
of situation, the power of connexion, the advantages of education
and intelligence, which go hand in hand with wealth. The poor has
but one strong hold, the protection of the law: and out of this the
financier drives him without vouchsafing him a thought, in company
with the herd of malefactors.
The poor, on account of the ignorance and intellectual incapacity
inseparably attached to poverty, are debarred generally, as perhaps it
is necessary, were it only for their own sake, they should be
6
universally, from the sweets of political power: but are not so many
unavoidable inequalities enough, without being added to by
unnecessary injustice?
Such is the description of those from whom this sum total of all
rights is torn away with one hand, while tendered with the other:
what are their numbers in proportion to the sum total of subjects? I
fear to say--perhaps two thirds, perhaps four fifths, perhaps nine
tenths: but at the lowest computation a vast majority.
4
A third description of persons may yet be distinguished, whose
condition under the system of law taxes is still more deplorable than
that of either of the other two. I mean those, who having
wherewithal to pay the imposition at the commencement of the
suit, and during more or less of its progress, see their substance
swallowed up by the taxes before the termination of it. The two
preceding modifications of abuse, either of them bad enough, are
thus put together, and compounded into a third.
4 In England, the expense of carrying through a common action, cannot be
less than about 24l. at the lowest rate, on the plaintiff's side alone. [See
Schieffer on Costs, 1792.] The average expense of civil suits of all sorts,
taking equity causes into the account, can surely not be rated at less than
double that amount, on that one side. The average expenditure of an English
subject, infants and adults, rich as well as poor, taken together, has been
computed by Davenant (as quoted on this occasion somewhere by Adam
Smith) at 8l. a year. Six years' income then is what a man must have in
advance, before he can be admitted to take his chance for justice. Of many
estimates which Dr. Anderson had met with, 20l. was the highest, and he takes
but ten pounds. [Interest of Great Britain with regard to her colonies,
London, 1792.] No man then we may say at any rate, can have the benefit of
justice, in the ordinary way, either in making good a just claim, or saving
himself from an unjust one, who cannot find, for this purpose alone, a sum
equal to several years of a man's income. From this statement it needs not
much study to perceive, that for the bulk of the community, as far as ordinary
cases of the civil kind are concerned, justice is but an empty name.
7
Considered with a view to the treatment given to persons of this
description, a court of justice is converted into exactly the same sort
of place, as the shop of a baker would be, who having ranged his
loaves along his window in goodly shew to invite customers, should,
instead of selling them the bread they asked for, first rob them of
their money, and then turn them out of doors. To an unprejudiced
imagination, the alliance between justice and finance, presents on
this occasion a picture almost too near the truth to be termed an
apologue. At the door of a house more predatory than any of those
that are called houses of ill fame, the Judge in his robes presenting to
unsuspecting passengers a belt to prick in; the Lord High Treasurer in
the back ground with his staff, lying in wait, ready as soon as the
victims are fairly housed, and the money on the table, to knock
them down and run away with it. The difference is, that any man
may choose whether he will prick in the belt of the unlicensed
sharper, nor are any but the rawest louts to be so deluded: whereas
the wisest men may be inveigled in, as well as the stoutest dragged
in, by the exalted and commissioned plunderers--so much surer is
their game.--For were the list of law taxes ever so familiar, and ever
so easy to be understood, it is impossible for a man to know before
hand, whether he has wherewithal to pay the bill, because it is
impossible for him to know what incidents may intervene to
lengthen it. Were a man even to sit down, and form a resolution to
submit to every injury which he could not afford to prosecute for,
and to plead guilty to every accusation which he could not afford to
defend himself against, even at this price he could not save himself
from the hardship of paying for justice, aggravated by the still
greater hardship of not getting it.
If in all cases the practice is wicked, in some it is more particularly
preposterous. In civil causes, and other causes where the injury to
individuals affords a natural interest to prosecute, artificial expenses
are cruelty and breach of faith: in a large class of penal causes, in
which for want of such natural interest, prosecutors must be
engaged by factitious inducements, or the law be a dead letter, the
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cruelty and treachery are crowned by blunder and inconsistency.
Beckoned into court with one hand, men are driven away with the
other. But, costly as the attractive power frequently is, the repulsive
force is apt to be much stronger. Reward is subsequent, distant,
uncertain, and dependent upon success. Trouble, expense, and
odium, are certain and precedent.
5
In favour of this species of imposition, I have seen two arguments
produced.
One is, that in this case as in others, the burthen of an
establishment ought to lie on those by whom the benefit is reaped.
The principle is incontrovertible: the matter of fact supposed by the
application of it is not true.
5 This species of tax would stand absolutely alone in point of depravity, were
it not for the tax on drugs, as far it extends to those used in medicine. This, as
being also a tax upon distress, is so far in specie the same, but is nothing to it
in degree. To recover a shilling in the way of justice, it will cost you at least
24l., of which a good part in taxes: but to be admitted to buy a shilling's
worth of medicine for a shilling, it does not cost you threepence. Hospitals
for the sick are not uncommon: there are none for harassed and impoverished
suitors. There are Lady Bountifuls that relieve the sick from the tax on
medicines, and the price of them into the bargain: but a Lady Bountiful must be
bountiful indeed, to take the place of attorney and counsel, as well as of
physician and apothecary, and supply a poor man with as many pounds worth
of latitats and pleas, as he must have to recover a shilling. A man cannot, as we
have seen, insure himself against law suits: but a man may insure himself and
many thousands actually do insure themselves, against sickness. But these
reliefs are neither certain nor general: and after all, a tax on him who has had a
leg or an arm broken, a tax on him who has had a fit of the ague, gout,
rheumatism, or stone, will be the worst possible species of tax, next to a tax
on justice.
N.B. The tax on quack medicines, that is, on unknown and unapproved
medicines, leaving all known and approved ones untouched, falls in a less
degree, if at all, under this censure.
9
The argument, were it just, would not extend beyond so much of
the produce of the tax as is requisite for defraying the charge of this
part of the national establishment. Whether it be confined or no
within these bounds, was perhaps never thought worth inquiring
into, in any country where this tax was imposed. It certainly extends
much beyond them in England; and it seems to be resorted to from
time to time, with as little scruple, as an extension of the customs or
excise. But let this pass.
As to the notion of a connexity in this case betwixt the benefit and
the burthen, it has been countenanced by an authority too
respectable, not to deserve the most serious notice:
6
but come it
from whom it will, it is a mere illusion. The persons on whom the
whole of the burthen is cast, are precisely those, who have the least
enjoyment of the benefit: the security which other people enjoy for
nothing, without interruption, and every moment of their lives, they
who are so unfortunate as to be obliged to go to law for it, are
forced to purchase at an expense of time and trouble, in addition to
what pecuniary expense may be naturally unavoidable. Mean time,
which is of most value? which most worth paying for?--a
possession thus cruelly disturbed, or the same possession free from
all disturbance?--So far then from being made thus wantonly to pay
an extra price, a man who stands in this unfortunate predicament,
ought rather to receive an indemnification at the public expense, for
his time and trouble: and the danger of insidious or collusive
contests, in the view of obtaining such an indemnity, is the only
objection I can see, though perhaps a conclusive one, against the
granting it.
Litigation may in this point of view be compared to war in sober
sadness, as war has been to litigation in the way of pleasantry. The
suitor is the forlorn hope in this forensic warfare. To throw upon
the suitor the expense of administering justice, in addition to the
6 Dr. Adam Smith, Wealth of Nations.
10
trouble and the risk of suing for it, is as if, in case of an invasion,
you were to take the inhabitants of the frontier and force them, not
only to serve for nothing, but to defray of themselves the whole
expenditure of the war.
What in our times is become inveterate practice, is stigmatized as a
species of iniquity without a precedent, by Saint Paul. "Who is there,"
demands the Apostle, "who is there that ever goes to war at his own charge?"
-- "Alas!" cries the poor suitor, "I do."
The other argument in favour of a set of taxes of this kind, is, that
they are a check to litigation.
Litigation is a term not altogether free from ambiguity. It is used
sometimes in a neutral sense, to denote the prosecuting or defending
a suit, though perhaps more frequently in a bad one. In its neutral
sense, it expresses the irreproachable exercise of an essential right:
in a bad sense a species of misconduct practised under the notion
of exercising such a right.
In the first sense, taxes can never have been recommended by any
man as a check to litigation: in this sense, an avowed desire of
checking litigation, would be neither more nor less than an avowed
desire of denying justice.
In a bad sense again, the word is used on two different occasions:
where the suit, whatever be the importance of the matter in dispute,
is on the part of the person spoken of as maintaining it, a groundless
one: and where the suit, however well-grounded on his part in point
of title, is on account of the supposed unimportance of the matter
in dispute, deemed a frivolous, a trifling, a trivial one: and in either case,
it is of course applicable to the situation of either plaintiff or
defendant; though it is apt to fix in the first instance and most
readily upon the situation of the plaintiff, as being the party, who by
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taking the first step on the commencement of the suit, exhibits
himself as the author of it.
On either side, litigation, when groundless, may be accompanied or
not, with what the lawyers call in genere malitia, meaning consciousness
of misdoing, and in this particular case mala fides, consciousness of the
groundlessness of the action or defence, consciousness of the want
of merits.
Where merits are wanting, but there exists no consciousness of the
want, taxes on law-proceedings do, it must be confessed, operate as
a check to litigation; and that as well on the side where it is
groundless as on that where it is well grounded, and in the same
degree. Indeed as both of two contending parties cannot in point of
law be actually in the right, though either or both may think
themselves so, the impediment cannot operate to the denial of
justice, but it must operate to the prevention of groundless litigation
at the same time. Prevent him who is in the right from instituting a
suit, you prevent him who is in the wrong from defending one. But
neither is litigation prevented, any further than as justice is denied.
So far then as this case extends, it is still but the other side of the
same effect, the denial of justice.
Have they then any peculiar tendency to operate as a check to
litigation, when it is not only groundless, but accompanied with a
consciousness of its being so?--to malitious, or as it might with more
propriety be termed, anti-conscientious litigation? On the contrary,
their direct tendency and sure effect is to promote it.
They produce it on the part of the plaintiff.--Were proceedings at
law attended with no expense nor other inconvenience, till the suit
were heard and at an end, a plaintiff who had no merits, could do a
defendant man no harm by suing him: he could give him no motive
for submitting to an unfounded claim: malice would have no
weapons: oppression would have no instrument. When proceedings
12
are attended with expense, the heavier that expense, the greater of
course is the mischief which a man who has no merits is enabled to
do: the sharper the weapon thus put into the hand of malice, the
more coercive the instrument put into the hand of the oppressor.
They produce it on the part of the defendant. Were proceedings at
law attended with no expense, a defendant who knew he had no
merits, a defendant who was conscious that the demand upon him
was a just one, would be deprived of what is in some cases his best
chance for eluding justice, in others the absolute certainty of so
doing: he would lose the strongest incentive he has to make the
attempt. A defendant who means not to do justice unless compelled,
and who knows that the plaintiff cannot compel him without having
advanced a certain sum; such a defendant, if he thinks his adversary
cannot raise that sum, will persevere in refusal till a suit is
commenced, and in litigation afterwards.
Whether they make the litigation, or whether they find it ready
made, they shew most favour to the side on which anti-
conscientious litigation is most likely to be found. By attaching on
the commencement of the suit, they bear hardest upon the plaintiff,
or him who, if they would have suffered him, would have become
plaintiff. In so doing they favour in the same degree the defendant,
or him who, if the party conceiving himself injured, could have got
a hearing, would have been called upon to defend himself. But it is
on the defendant's side that anti-conscientious practice is most likely
to be found. Setting expense out of the question, an evil of which
these laws are thus far the sole cause, setting out of the question the
imperfections of the judicial system, and the hope of seeing
evidence perish, or the guilty view of fabricating it, a man will find
no motive for instituting a suit for an ordinary pecuniary demand,
without believing himself to be in the right: for if he is in the
wrong, disappointment, waste of time, fruitless trouble, and so
much expense as is naturally unavoidable, are by the supposition
what he knows must be his fate. Whereas, on the other hand, a man
13
upon whom a demand of that kind is made, may, although he
knows himself to be in the wrong, find inducement enough to stand
a suit from a thousand other considerations: from the hope of a
deficiency in point of evidence on the part of the plaintiff, not to
mention, as before, the rare and criminal enterprise of fabricating
evidence on his own part: from the hope of tiring the plaintiff out,
or taking advantage of casual incidents, such as the death of
witnesses or parties: from the temporary difficulty or inconvenience
of satisfying the demand, or (to conclude with the case which the
weakness of human nature renders by far the most frequent) from
the mere unwillingness to satisfy it.
In a word, they give a partial advantage to conscious guilt, on
whichever side it is found: and that advantage is most partial to the
defendant's side, on which side consciousness of guilt, as we see, is
most likely to be found.
Better, says a law maxim subscribed to by every body, better that ten
criminals should escape, than one innocent person should suffer:
and this in case even of the deepest guilt. For ten, some read a
hundred, some a thousand. Whichever reading be the best, an
expedient of procedure, the effect of which were to cause ten
innocent persons to suffer for every ten guilty ones, would be
acknowledged to be no very eligible ingredient in the system. What
shall we say of an institution, which for one culpable person whom
it causes to suffer, involves in equal suffering perhaps ten blameless
ones.
Thus much for groundless suits: there remains the plea of its tendency
to check what are deemed trivial suits.
I know what a groundless suit means--I know of no such thing as a
frivolous one. No wrong that I know of can be a trivial one, which to
him to whom it is done appears a serious one, serious to such a
degree, as to make it worth his while to demand redress at the hand
14
of justice.--Conduct is the test of feeling. I know of no right I have
to set up any feelings of my own as the standard of those of my
neighbour, in contradiction to a declaration of his, the truth of
which is evidenced by his own conduct. What to one man again is
trivial, to another man may be of high importance. In the account
of wrong too must be included, not only the individual wrong taken
by itself, but its effects in the way of encouragement to repetition,
and its effects in the way of example. I know of no wrong so slight,
that by multiplication may not become intolerable. Give me but a
licence to do to any person at pleasure the minutest wrong
conceivable -- I need no more, that person is my slave. Allow me to
rob him, though it be but of a farthing, farthing by farthing, I will
find the bottom of his purse. Allow me but to let fall a drop of
water upon his head--gutta cavat lapidem, the power of striking his
head off would be less susceptible of abuse.
In pecuniary cases, the smaller the sum in dispute, the less reserve is
used in branding the conduct of the parties with the charge of
litigation, of which, in such cases the reproach is apt to fall
principally, if not exclusively, to the plaintiff's share. But the
importance of the sum is altogether governed by the circumstances
of the parties: the amount of it in pounds, shillings, and pence,
shows nothing. One man's income may be a hundred, a thousand,
four thousand times as great as that of another. In England there
are men whose income exceeds 60,000l. a year. 15l. a year is as much
as falls to the lot of perhaps the greater number of the whole body
of the people. Without a particular caution, a legislator or a judge
will naturally enough, like any other man, take the relation of the
sum in dispute to his own feelings, that is, its ratio to his own
circumstances, for the measure of importance: but by this standard
he will be sure to be deceived, as often as the circumstances of the
parties, or either of them, are materially different from his own.
Fifty pound, for example, will be apt to appear in his eyes an object
of considerable importance: an object of which a tenth or a
twentieth part, or less, might be of importance sufficient to justify
15
from the charge of litigation, the maintenance of a suit. A shilling
would be almost sure to appear to him an object altogether trifling;
an object by no means of magnitude enough to warrant the
maintenance of a suit. Fifty pound is however a sum of less
importance to a Duke of Marlborough or Bedford, than a single
shilling (viz. than a four thousandth part of 50l.) to many a man, in
truth to probably the majority of men in the kingdom. It is
therefore more unjust, more tyrannical, to refuse to hear the
demand of an ordinary working man to the amount of a shilling,
than it would be to refuse to hear the demand of a Duke of
Marlborough or Bedford, to the amount of 50l. The legislator, who
on the plea of checking litigation, or on any other plea, exacts of a
working man as a preliminary to his obtaining justice, what that
working man is unable to pay, does refuse to him a hearing, does in
a word refuse him justice, and that as effectually and completely, as
it is possible to refuse it.
That all men should have equal rights, not only would be politically
pernicious, but is naturally impossible: but I hope this will not be
said of equal justice.
Trivial causes require no such factitious checks: to such causes were
all expenses struck off that can be struck off, there are natural
checks in abundance, that are unavoidable. There is the pain of
disappointment: there is expense, of which a certain measure will
every now and then be absolutely unavoidable: there is consumption
of time, which to the working classes, that is, to the great majority
of the people, is expense.
But even let the cause be trivial, and that to such a degree as to
render the act of commencing the litigation blamable, the blame is
never so great on the side of the party most favoured by the tax, as
on the side of the party most oppressed by it. The party most
oppressed is the complainant: the party who having suffered the
injury, such as it is, claims or would claim satisfaction for it at the
16
hands of justice. But, so as there does but exist the smallest particle
of an injury, the party who claims satisfaction for it can never be so
much in the wrong for doing so, but that he who refuses satisfaction
must be still more so. If the demand be just, why did not he comply
with it? If just, but trifling, why does he contest it? In this case then
you cannot punish in this way the misconduct of one party, without
rewarding the still greater misconduct of the other. If the tax
applies a check where there is blame, it affords protection and
encouragement where there is still greater blame.
Another injustice.--The poorer a man is, the more exposed he is to
the oppression of which this supposed remedy against litigation is
the instrument. But the poorer a man is, the less likely he is to be
litigious. The less time a man has to spare, and the less a man can
afford to expend his time (not to speak of money) without being
paid for it, the less likely is he to expose himself to such a
consumption of his time.
The rich man, the man who has time and money at command, he
surely, if any, is the man to consume it litigiously and frivolously. No
wonder however, if to a superficial glance, the poor should appear
more litigious than he. There are more of the poor than of the rich:
and to the eye of unreflecting opulence, the causes of the poor are
all trivial ones.
We think of the poor in the way of charity, for to deal out charity
gratifies not only benevolence, but pride. We think much of them in
the way of charity, but we think little of them in the way of justice.
Justice, however, ranks before charity: and they would need less
charity, if they had more justice.
What contributes more than any thing to the indignation excited by
suits that are deemed trivial and, on account of the triviality
vexatious, is the excessive ratio of the expense of the suit to the value
of the matter in dispute: especially when, the matter in dispute being
17
pecuniary, its minuteness is more conspicuous and defined. But to
what is this expensiveness owing?--As far at least as these taxes are
in question, to the legislator himself. -- Mark then the iniquity. He is
himself the author of the wrong, and he punishes for it the
innocent and the injured.
To exclude the poor from justice was not enough:--they must be
excluded also from mercy. Forty shillings is the tax imposed on
pardons, by a statute of King William (5. W. c. 21. § 3.) forty
shillings more by another, no more than five years afterwards. (9 and
10. W. c. 25. § 3, 50.) Together, 4l.:--half a year's income of a
British subject, according to Davenant's computation above quoted.
What is called mercy, let it be remembered, is in many cases, no more
than justice: in all cases where the ground of pardon is the persuasion
of innocence, entertained either notwithstanding the verdict, or in
consequence of evidence brought to light after the verdict.
7
All
punishments are accordingly irremissible, to him who has not to the
amount of half a year's income in store or credit: all fines to that
amount or under, absolutely irremissible.
8
Taxes on law proceedings, so far then from being a check to
litigation, are an encouragement to it: an encouragement to it in
every sense in which it is mischievous and blamable. Would you
really check litigation, and check it on both sides?--the simple
course would be a sure one. When men are in earnest about
7 For instance the case of Mr. Atkinson.
8 It would be curious enough to know what profit the treasury may have
drawn from that time to the present, from so extraordinary a fund: certainly,
not enough to pay the salary of one of the Lords Commissioners: probably
not enough to pay that of his valet de chambre.
These are busy statutes. By the prohibition and sale of justice, they run
counter to Magna Charta:--by the prohibition of Mercy, they break the
Coronation Oath.
18
preventing misconduct in any line, they annex punishment to
misconduct in that line, and to that only: a species of misconduct
which cannot be practised but as it were under the eye of the court,
is of all others the easiest to cope with in the way of law. Deal with
misconduct that displays itself under the eye of the court as you
deal by delinquency at large, and you may be sure of succeeding to a
still superior degree. Discriminate misconduct then from innocence:
lay the burthen on misconduct and misconduct only, leaving
innocence unoppressed. Keep back punishment, till guilt is
ascertained. Keep back costs, as much as possible, till the last stage
of procedure; keep off from both parties every thing of expense
that is not absolutely unavoidable, where litigation is on both sides
without blame: at that last stage if there be found blame, throw
whatever expense of which you allow the necessity to subsist
beyond what is absolutely unavoidable, throw it on that side, and on
that side only, where there has been blame. If on both, then if
circumstances require, punish it on both sides, by fine for instance
to the profit of the public.
Litigation, though eventually it prove groundless, litigation, like any
other course of conduct of which mischief is the result, is not
therefore blamable: and where it is blamable, there is a wide
difference whether it is accompanied with temerity only, or with
consciousness of its own injustice. The countenance shewn to the
parties by the law ought to be governed, and governed uniformly
and proportionally, by these important differences.--So much in
point of utility:--how stands establishment?--Taxes heaped on in
all stages from the first to the last without distinction: -- all costs
given or no costs, no medium:--costs scarce ever complete, and
nothing beyond costs.--No mitigation, or enhancement, in
consideration of pecuniary circumstances. No shades of
punishment in this way correspondent to shades of blame:--in
most cases no difference so much as between consciousness of
injustice and simple temerity, nor so much as betwixt either and
innocence. The power of adjudging as between costs and no costs,
19
seldom discretionary:--that of apportioning, never:--nor that of
fining beyond the amount of costs:--consequently nor that of
punishing both parties where both have been to blame. Were a
power to be given by statute to impose on a litigious suitor
convicted of litigation, a fine to an amount not exceeding what the
losing party pays now, whether he be blamable or blameless, it
would be cried out against perhaps as a great power, too great to be
given to judges without juries.
9
Justice shall be denied to no man, justice shall be sold to no man, says the first
of statutes, Magna Charta. How is it under these later ones?--
9 The distinction between temerity and consciousness of blame, a distinction
pervading human nature, and applicable to every species of misbehaviour, is
scarce so much as known to the English law. There are scarce words for it in
the language. Temerity is taken from the Roman law. Malice, the term by which
English Lawyers seem in some instances to have had in view the expressing
consciousness of blame, presents a wrong idea, since in common language it
implies hatred, an affection which in many instances of conscious guilt, may be
altogether wanting:--instance offences of mere rapacity, such as theft,
robbery, and homicide for lucre.
The legislator?--he talk of vexation?--He does every thing to create the evil,
he does nothing to remove it.
I happened once to fall into conversation with a man, who, from an Attorney
had been made Judge of one of the provinces in America. Justice, I
understood from him, was on a very bad footing there: it might be had almost
for nothing: the people were very litigious: he found them very troublesome.
A summons cost--I forget whether it was three and sixpence, or half a
crown. Whom the half crown went to I do not know: one may be pretty
certain not to the Judge.--Seeing no prospect of our agreeing, I did not push
the conversation far. The half crown seemed to him too little: to me it seemed
all too much. The pleasant thing would have been to have enjoyed the salary
in peace and quietness, without being plagued with a parcel of low people.
Justice would then have been upon the best footing possible. He had
accordingly a project for checking litigation by raising the fees. I don't know
whether it succeeded.
20
Denied, as we have seen, to nine-tenths of the people, sold to the
other tenth at an unconscionable price. It was a conceit among the
old lawyers, reported if not adopted by Lord Coke, that a statute
made contrary to Magna Charta, though made in all the forms, would
be a void law. God forbid, that by all the lawyers in the world, or for
the purpose of any argument, I should ever suffer myself to be
betrayed into any such extravagance: in a subject it would be
sedition, in a judge it would be usurpation, in any body it would be
nonsense. But after all it must be acknowledged, to be in some
degree unfortunate, as well as altogether singular, that, of an
instrument deemed the foundation of all liberty, and magnified as
such even still, to a degree of fanaticism, a passage by far the most
important, and almost the only one that has any application now a
days, should be thus habitually trodden under foot, without remorse
or reclamation.
10
A tax so impolitic and so grievous, a tax thus demonstrated to be
the worst of taxes, how comes it ever to have been made choice of,
and when made choice of, acquiesced in?--These are not questions
of mere curiosity: for acquiescence under a tax, and that so general,
forms at first glance no inconsiderable presumption in its favour. A
presumption it does form: but when demonstration has shewn itself,
presumptions are at an end.
10 Let us not for the purpose of any argument, give rise or countenance to
injurious imputations. Though justice is partly denied, and partly sold, the
difference is certainly immense, betwixt selling it for the personal benefit of
the king or of a judge, and selling it for the benefit of the public:--betwixt
selling it by auction, and selling it at a fixed price:--betwixt denying it for the
sake of forcing the sale of it, or denying it to a few obnoxious individuals, and
denying it indiscriminately to the great majority of the people. In point of
moral guilt, there is certainly no comparison: but in point of political effect, it
may not be altogether easy in every part of the parallel, to say which mode of
abuse is most extensively pernicious.
21
How comes the tax to have been made choice of?--One cause we
have seen already in another shape; the unscrutinized notion of its
supposed tendency to check litigation: litigation, which where it
stands for mischief, is the very mischief which the species of tax in
question contributes with all its power to promote.
Another cause may possibly be, the tendency which this sort of tax
has to be confounded in the eye of an incurious observer, with
other sorts, which are either the best of all, or next to the best. The
best of all are taxes on consumption, because not only do they fall
no where without finding some ability to pay them; but where
necessaries are out of the question, they fall on nobody who has not
the option of not paying them if he does not choose it. Taxes on
property, and those on transfer of property, such as those on
contracts relative to property, are the next best: because though they
are not optional like the former, they may be so selected as never to
call for money but where there is ability, nay even ample ability, to
pay them. Now of these two most supportable classes of taxes, the
second are all of them levied by means of stamps: taxes on
consumption too, in many instances, such as those on cards, dice,
gloves, and perfumery, show to the eye as stamp-duties. But all these
are very good taxes. Stamp-duties therefore are good taxes: and
taxes on justice are all stamp-duties.--Thinking men look to
consequences; they look to the feelings of the individuals affected:
acting men look to the stamp: taxes on justice, taxes on property,
taxes on consumption, are accordingly one and the same object to
the optics of finance. Stamp-duties too have another most
convenient property, they execute themselves, and law-taxes beyond
all others: in short they exclude all smuggling.
11
They heap distress
indeed upon distress: but the distress is not worth minding, as there
is no escaping it.
11 Law paper might be forged: but the difficulty would be to issue it.
22
But the great cause of all is the prospect of acquiescence: a prospect
first presented by hope, since realized over and over again by
experience. It is too much to expect of a man of finance, that he
should anticipate the feelings of unknown individuals: it is a great
deal if he will listen to their cries. Taxes on consumption fall on
bodies of men: the most inconsiderable one when touched will
make the whole country ring again. The oppressed and ruined
objects of the taxes on justice, weep in holes and corners, as rats
die: no one voice finds any other to join with it.
A tax on shops, a tax on tobacco, falls upon a man, if at all,
immediately, and presses on him constantly: every man knows
whether he keeps or means to keep a shop, whether he means to sell
or to use tobacco. A tax on justice falls upon a man only
occasionally: it is like a thunder-stroke, which a man never looks for
till he is destroyed by it. He does not know when it will fall on him,
or whether it ever will: nor even whether, when it does fall, it will
press upon him most, or upon his adversary. He knows not what it
will amount to: he has no data from which to calculate it: it comes
lumped to him in the general mass of law charges: a heap of items
among which no vulgar eye can ever hope to discriminate: an object
on which investigation would be thrown away, as comprehension is
impossible. Calamities that are not to be averted by thought, are
little thought of, and it is best not to think of them. When is the
time for complaint? Before the thunder-bolt is fallen it would be too
soon: when fallen, it is too late. Shopkeepers, tobacconists, glovers,
are compact bodies: they can arm counsel: they come in force to the
House of Commons. Suitors for justice have no common cause, and
scarce a common name: they are every body and nobody: their
business being every body's is nobody's. Who are suitors? where are
they? what does a Chancellor of the Exchequer care for them? what
can they do to help him? what can they do to hurt him? So far from
having a common interest, they have a repugnant interest: to crush
the injured, is to befriend the injurer.
23
May not ignorance with regard to the quantum and the source of
the grievance, have contributed something to patience?--Unable to
pierce the veil of darkness, that guards from vulgar eyes the avenues
of justice, men know not how much of the difficulty of the
approach is to be ascribed to art, and how much to nature. As the
consumers of tobacco confound the tax on that commodity with
the price, so those who borrow or would have wished to borrow the
hand of justice, confound the artificial with the natural expense of
hiring it. But if the whole of the grievance be natural, it may be all
inevitable and incurable, and at any rate it may be no more the fault
of lawyers or law makers, than gout and stone are of physicians.--
Happy ignorance!--if blindness to the cause of a malady could
blunt the pain of it!
There want not apologists-general and talkers in the air, to prove to
us that this as well as every thing else, is as it should be. The
expense, the delay, and all the other grievances, which activity has
heaped up, or negligence suffered to accumulate, are the prices
which, according to Montesquieu, we must be content to pay for
liberty and justice. A penny is the price men pay for a penny loaf:
therefore why not two-pence? and, if three-pence, there would be
no harm done, since the loaf would be worth so much the more.
May not a sort of instinctive fellow-feeling among the wealthy have
contributed something, if not to the imposition, at least to the
acquiescence? It is the wealthy alone, that either by fortune,
situation, education, intelligence, or influence, are qualified to take
the lead in legislation: and the characteristic property of this tax, is
to be favourable to the wealthy, and that in proportion to their
wealth. Other taxes afford a man no indemnification for the wealth
they take from him: this gives him power in exchange. The power of
keeping down those who are to be kept down, the power of doing
wrong, and the more generous pride of abstaining from the wrong
which it is in our power to do; advantages such as these, are too
precious not to be grasped at with avidity by human weakness: and,
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as in a country of political liberty, and under a system of justice in
other respects impartial, they can only be obtained by a blind and
indirect route such as this, the inconvenience of travelling in it, finds
on the part of those who are well equipped for it, the more patient
an acquiescence.
Will it be said that abolishing the taxes on justice would not answer
the purpose, for that supposing them all abolished, justice would
still remain inaccessible to the body of the people?--This would be
to justify one abuse by another. The other obstacles by which the
avenues to justice have been blocked up, constitute a separate head
of abuse, from which I gladly turn aside, as being foreign to the
present purpose. Take off law taxes all together, the number of
those to whom justice will still remain inaccessible, would still, it
must be confessed, be but too great. It would however not be so
great, as it is at present under the pressure of those taxes. Though
you could not tell exactly to how many you would open the doors
of justice, you might be sure you opened them to some. Though
you would still leave the burthen but too heavy, you would at any
rate make it proportionably more supportable.
If by taking off these taxes, you reduced the expense of a common
action from 25l. to 20l., you might open the door, suppose, to one in
five of those against whom it is shut at present. Even this would be
something: at any rate whatever were the remaining quantum of
abuse, which you still suffered to subsist, you would have the
consolation at least of not being actively instrumental in producing
it. To reform in toto a system of procedure is a work of time and
difficulty, and would require a rare union of legal knowledge with
genius:--repealing a tax may require discernment, candour,
philanthropy, and fortitude; but is a work of no difficulty, requires
no extraordinary measure of science, nor even so much time as the
imposing of one.
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But by whatever plea the continuance of the subsisting taxes of this
kind may be apologized for, nothing can be said in favour of any
new addition to the burthen. The subsisting ones, it may be said,
have been acquiesced in, and men are used to them: in this respect
at least they have the advantage of any new ones which could be
substituted in the room of them. But even this immoral plea, which
puts bad and good upon a level, effacing all distinction but that
between established and not established, even this faint plea is mute
against any augmentation of this worst of evils.
To conclude--Either I am much mistaken, or it has been proved--
that a law tax is the worst of all taxes, actual or possible:--that for
the most part it is a denial of justice, that at the best, it is a tax upon
distress:--that it lays the burthen, not where there is most, but
where there is least, benefit: -- that it co-operates with every injury,
and with every crime:--that the persons on whom it bears hardest,
are those on whom a burthen of any kind lies heaviest, and that
they compose the great majority of the people:--that so far from
being a check, it is an encouragement to litigation: and that it
operates in direct breach of Magna Charta, that venerable
monument, commonly regarded as the foundation of English
liberty.
The statesman who cares not what mischief he does, so he does it
without disturbance, may lay on law taxes without end: he who
makes a conscience to abstain from mischief will abstain from
adding to them: he whose ambition it is to extirpate mischief, will
repeal them.
General error makes law, says a maxim in use among lawyers. It makes
at any rate an apology for law: but when the error is pointed out, the
apology is gone.
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