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

8

---

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

11

---

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,

24

---

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.

25

---

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.

26

---