Popular prejudice has got the length of giving bad names in both cases, p. 87 Blackstone's reasoning concerning the money- trade applied to the horse-trade,.. p. 88 Proposal for fixing by law the same price for all horses, p. 93 The values of horses differ not more than the value of money on different occasions,. ibid.
LETT. X. Grounds of the Prejudices against Usury.
Causes of the discountenance shewn to the lender of money at interest: 1. The prevalence of the ascetic principle among Christians, p. 96 2. The horror of every thing Jewish.. p. 98 3. Aristotle's aphorism about the natural bar- renness of money, •. < 4...p. 99 4. The motives, selfish as well as social, which concur in rendering the profuse character more amiable than the saving,...p. 103 A proof CONTENTS. 201 A proof of this, the unfavourable light in which money-lenders, and other men of thrift, are always represented on the stage,.. p. 106 Hence, even from legislators, the lender's inte- rest has met with less attention and favour than the borrower's, p. 107 Yet by this partiality the parties meant to be favoured, have been the greatest suf- ferers, p. 109 LETT. XI. Compound Interest.
Compound interest, how far discountenanced by No argument against it, but the notion of usury, or that of hardship, p. Ill Inconsistency and mischief of such discounte- nance, ibid.
The casual inability of the borrower is a reason, not for such discountenance, but for a respite, which the law never gives,...p. 1 14 Effects of such false tenderness in breeding maid LETT.
202 Letters in Defence of Usury.
LETT. XII. Maintenance and Cham- perty.
Inexpediency of restraining men in their bar- gains for money, in the instance where the money is wanted for purchasing the as- sistance of the laws,; p. 117 Such bargains forbidden, by the laws against maintenance and champerty,...p. 118 Case of a gentleman who lost 30001. a year by those laws, p. 119 Absurdity of continuing laws made to ob- viate a mischief of which no traces re- The above case may serve also to evince and il- lustrate the mischief of the laws restraining the rate of interest,...p. 124 LETT. XIII. To Dr. Smith, on Pro- jects in Arts, 8fc.
Occasion of this address,...p. 131 The object of it, the defence of projectors, Passage, CONTENTS. 203 Passage, in which Dr. Smith approve* of the law fixing the rate of interest, on account of its tendency to repress them,...p. 133 Prejudice under which they labour,.. p. 134 Tin law, and therefore the censure past on them by the approbation given to that law, admits of no discrimination in favour of the innocent and meritorious, p. 136 The projector cannot hope for money at the highest rate of interest at present legal, be- cause that may always be had with more safety from old-established trades,...p. 140 The censure on projectors necessarily involves the authors of all the arts to which the world owes its prosperity, p. 144 And the laws, the approbation of which is con- nected with that censure, must, as far as their influence has extended, have operated as ob- stacles to that prosperity, p. 145 Another passage, in which the censure passed on projectors is plainly extended to all im- provers p. 147 The censure passed on projectors is inconsist- ent with some fundamental ideas of Dr.
Smith, p. 148 Concerning 204 Letters in Defence of Usury.
Concerning the natural prevalence of prudence over imprudence — even that which manifests itself in prodigality — and the progress of improvement which has been the conse- Grounds for not attributing that prosperity to the operation of the laws in restraining projectors, p. 153 Great advances in prosperity had been made prior to the earliest of those laws,.. p. 154 That their tendency can only have been to lessen the total number of projectors, with- out lessening the proportion of bad to The greatest mischief that could have been done by projecting, if totally unrestrained, could not, according to Dr. Smith, warrant the in- terposition of the law, because, according to him, that done by prodigals does not warrant that interposition, p. 156 But prodigality is at any rate much more cer- tainly ruinous, and much more common, than projecting, p. 159 In controling prodigality, the law controls pas- sion by reason: in controling projects, it controls knowledge by ignorance,.. p. 163 Dr.
CONTENTS. 205 Dr. Smith condemns this latter interference also* in the censure he passes on the faws which attempt to direct individuals in their private concerns, p. 165 The argument repeated — that the censure on pro- jects involves all past improvements,. p. 167 But future projects, as such, must be less danger- ous than the past ones were,...p. 168 The only case, in which the rettrainte applied by these laws to projects, attaches upon them, is that in which they are best guarded against hazard, viz. by the necessity of their being discussed before a judge whose prepossession is rather on the other side, p. 1 7 1 The ruin of every projector, without exception, would not be sufficient to disprove the utility of projects, p. 175 Of two towns instanced by Dr. Smith, that which is most of a projecting town is most Approbation bestowed by Dr. Smith himself on projects, under another name, as also on other laws that favour them, a warn- ing to guard against the delusion of sounds, P-190 Censure 206 Letters in Defence of Usury.
Censure passed on projectors hostile to the object of the Society of Arts, p. 183 Probable grounds of this censure: 1. Popular opinion, as expressed by the bad sense contracted by the word " Projector/' 2. Too hasty generalization, p. 186 Hopes of his turning against the current of popu- lar prejudice, in this instance, grounded on the others in which he has done so,...p. 187 Expedients proposed for taking away the re- straint of the anti-usurious laws from projectors only: 1. Bonds and affidavits to secure the applying the money obtained at extra-interest to this 2. Boards to grant licences for that purpose; ex. gr. the Committees of the Society of Arts, ibid.
This a bad and unnecessary expedient,. ibid.
FINIS.
A PROTEST AGAINST LAW TAXES, SHEWING THE PECULIAR MISCHIEVOUSNESS OP ALL SUCH IMPOSITIONS AS ADD TO THE EXPENSE OP APPEAL TO JUSTICE.
By JEREMY BENTH4M, OF LINCOLN'S INN, ESQ.
1 AXES on law-proceedings consti- tute in man)', and perhaps in all na- tions, a part of the resources of the state. They do so in Great Britain: they do so in Ireland. In Great Bri- tain, 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 mea- sures of the day. It is this impending extension that calls forth the publica- tion of the present sheets, the substance of 4 To Contributors, 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.* A juster condition never was imposed. I fulfil it at the first word. My bet- ter 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 requi- sition have wherewithal to pay, and those who have not: to the former, we shall find it more grievous than * 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 in- dividuals aggrieved, they have performed their part when they have stated their own grievance.
any A Tax upon Distress. 5 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 im- perfection is, that they may chance to bear where such ability may be want- ing. Taxes upon law-proceedings fall upon a man just at the time when the likelihood of his wanting that abi- lity 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 ex- traordinary contribution. When the back of the innocent has been worn raw by the yoke of the oppressor, then is the time which the appointed guar- dians of innocence have thus pitched upon for loading him with an extra- ordinary 6 To Contributors, ordinary burthen.* Most taxes are, as all taxes ought to be, taxes upon affluence: it is the characteristic pro- perty of this to be a tax upon distress.
A tax on bread, though a tax on consumption, would hardly be reckon- ed a good tax; bread being reckon- ed 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 pay- ment, 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 » 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.
will A Tax upon Distress. 7 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 pay- ment, 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 jus- tice. Were a three-penny stamp to be put upon every three-penny loaf, a man who had but three-pence 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 oblig- ing 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 $ To Contributors, buying the whole weight of paper, there is no getting a grain of justice.
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 pro- portion, 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 fore- seen as to the time, or at any rate pro- vided 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 Tax upon Distress. 9 provide a fund for it. A tax to be paid upon the loss of a husband, or of a father on whose industry the faiiiily 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 madej it is actually made in different ways by insurance: and, were a tax added to them, pay so much more, and you might ensure yourself against the tax. Against the misfortune of being called upon to in- stitute or defend one's self against a suit at law, there neither is, nor can be, any office of insurance.* * I say there never can be: in those other in- stances the event insured against is always some very simple event, such as the death of a person, which 10 To Non- Contributors, 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 or less than a denial of justice.
Justice is the security which the law 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 in- stitute 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 criminal cases; nor could it be rendered any thing like co-extensive with the grievance.
provides A Denial of Justice. \\ provides us with, or professes to provide us with, for every thing we value, or ought to value: for property, for li- berty, 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 quin- tessence of injury, the sum and sub- stance of all sorts of injuries. It is not robbery only, enslavement only, insult only, homicide only: it is rob- bery, 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 malefac- tor may boast of him as an accom- plice. To apply this to intentions would be calumny and extravagance. L But But as far as consequences only are concerned, clear of criminal consci- ousness and bad motives, it is incon- trovertible and naked truth.
Outlawry is the engine applied by the law, as an instrument of compul- sion 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 other- wise be affected, comes in as subsi- diary in lieu of other punishment, there are certain offences for which a man is subjected, expressly and in the first instance, to a similar punishment, under the name of forfeiture of the pro- tection A Denial of Justice. 1$ tection of (he law. The same fate at- tends 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 ex- cluding the hope of pardon: if inno- cent, and poor, and injured — before conviction, and without conviction, and for no <,cuse at all, and as long as he continues poor, that is, as long as he lives.
What a contrast! What inconsist- ency! 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 L 2 doom 14 To Non- Contributors, doom upon thousands, not to say mil- lions, 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 cer- tainly 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 safe- guard 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 edu- cation and intelligence, which go hand hand in hand with wealth. The poor has but one strong hold, the protec- tion of the law: and out of this the financier drives him without vouch- safing him a thought, in company with the herd of malefactors.
The poor, on account of the igno- rance and intellectual incapacity inse- parably attached to poverty, are de*- barred generally, as perhaps it is ne- cessary, were it only for their own sake, they should be 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 ten- dered with the other: what are their numbers in proportion to the sum to- tal of subjects? I fear to say — perhaps two.
two thirds, perhaps four fifths, per- haps nine tenths: but at the lowest computation a vast majority.* A third * In England, the expense of carrying through a common action, cannot be less than about 241. 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 81. 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, 201. 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 un- just A Denial of Justice. 17 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 impo- sition at the commencemeut of the suit, and during more or less of its progress, see their substance swallowed up by the taxes before the tcrmi nation of it. The two preceding modifica- tions of abuse, either of them bad enough, are thus put together, and compounded into a third.
Considered with a view to the treat- ment given to persons of this descripjust one, who cannot find, for this purpose alone, a sum equal to several yean of a man's income. From this statement it needs nut much study to perceive, that for the bulk of the community, as far as ordinary casei of the civil kind are con- cerned, jcuftce is but an empty name.
tion, 18 They even deny Justice, tion, a court of justice is converted in- to 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 cus- tomers, 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 unpreju- diced imagination, the alliance be- tween 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 preda- tory than any of those that are called houses of ill fame, the Judge in his robes presenting to unsuspecting pas- sengers 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 where they have taxed Distress. 19 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 invei- gled in, as well as the stoutest drag- ged in, by the exalted and commis- sioned 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, whe- ther 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 sub- mit 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 L 3 againsti, 20 They even deny Justice, 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 prepos- terous. 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 pe- nal causes, in which for want of such natural interest, prosecutors must be engaged by factitious inducements, or the law be a dead letter, the 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 re- pulsive force is apt to be much stronger. Reward is subsequent, distant, uncer- tain, and dependent upon success.
Trouble where they have taxed Distress. 31 Trouble, expense, and odium, are cer- tain and precedent.* In favour of this species of imposi- * This species of tax would stand absolutely alone in point of depravity, were il not for the tax on drugs, as far as it extends to those used in medicine. This, as being also a tax upon dis- tress, 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 041. of which a good part in taxes: but to be admitted to buy a shilling's worth of medicine for a shil- ling, it dues not cost you threepence. Hospi- tals for the sick are not uncommon: there are none for harassed and impoverished suitors. There are Lady Bountiful* 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 apothe- cary, and supply a poor man with as many pounds worth of latitats and pleat, as he must have to recover a shilling. A man cannot, a* we have seen, insure himself against law suits: but a man may insure himself, and many thou- sands actually do insure themselves, against sick- ness. But these reliefs are neither certain nor general: 22 They throw the Burthen, tion, I have seen two arguments pro- duced.
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 incontrover- tible: the matter of fact supposed by the application of it is not true.
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 en- general: and after all, a lax 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, leav- ing all known and approved ones untouched, falls in a less degree, if at all, under this censure.
quiring where there is least Benefit. 23 quiring into, in any country where this tax was imposed. It certainly ex- tends 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:* 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 en- joyment of the benefit: the security which other people enjoy for nothing, without interruption, and every mo- ment of their lives, they who are so unfortunate as to be obliged to go to * Dr. Adam Smith, Wealth of Nations.
law 214 They throw the Burthen, law for it, are forced to purchase at an expense of time and trouble, in addi- tion 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 posses- sion free from all disturbance? — So far then from being made thus wan- tonly to pay an extra price, a man who stands in this unfortunate pre- dicament, ought rather to receive an indemnification at the public expense, for his time and trouble: and the dan- ger of insidious or collusive contests, in the view of obtaining such an in- demnity, 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 sad-' ness, as war has been to litigation in the where there is least Benefit. 25 the way of pleasantry. The suitor is the forlorn hope in this forensic war- fare. To throw upon the suitor the expense of administering justice, in addition to the trouble and the risk of suing for it, is as if, in case of an invasion, you were to take the inhabi- tants of the frontier, and force them, not only to serve for nothing, but to defray of themselves the whole expen- diture of the war.
What in our times is become inve- terate practice, is stigmatized as a species of iniquity without a prece- dent, 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, " / 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 £6 No Check to Litigiousness, free from ambiguity. It is used some* times 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 ex- presses 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 litiga- tion, would be neither more nor less than an avowed desire of denying jus- tice.
In a bad sense again, the word is used on two different occasions: where the suit, whatever be the import- ance of the matter in dispute, is on the part of the person spoken of as maintaining it, a groundless one: and where but an Encouragement. 27 where the suit, however well grounded on his part in point of title, is on ac- count of the supposed unimportance of the matter in dispute, deemed & fri- volous, 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 up- on the situation of the plaintiff, as be- ing the party, who by 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 matitia, meaning consciousness of misdoing, and in this particular case mala fides, consciousness of the ground- lessness of the action or defence, con- sciousness of the want of merits.
Where merits are wanting, but there 28 No Check to Litigiousness,