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 ope- rate to the prevention of groundless li- tigation at the same time. Prevent him who is in the right from institut- ing 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 but an Encouragement. 29 Have they then any peculiar ten- dency to operate as a check to litiga- tion, 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 produce 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 proceed- ings are attended with expense, the heavier that expense, the greater of course 30 No Check to Litigiousness, 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 defen- dant who was conscious that the de- mand 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 do- ing: he would lose the strongest in- centive he has to make the attempt. A defendant who means not to do justice unless compelled, and who knows that the plaintiff cannot com- pel him without having advanced a Certain sum j such a defendant, if he thinks thinks but an Encouragement. 31 thinks his adversary cannot raise that sum, will persevere in refusal till a suit is commenced, and in litigation after- wards.
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 at- taching on the commencement of the suit, they bear hardest upon the plain- tiff, or him who, if they would have suf- fered 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 32 No Check to Litigiousness, these laws are thus far the sole cause, setting out of the question the imper- fections 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 institu- ting 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 ex- pense as is naturally unavoidable, are by the supposition what he knows must be his fate. Whereas, on the other hand, a man upon whom a de- mand 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 but an Encouragement. 33 as before, the rare and criminal enter- prise 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 tempo- rary difficulty or inconvenience of sa- tisfying 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 ad- vantage to conscious guilt, on which- ever side it is found: and that advan- tage 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 cri- minals should escape, than one inno- cent 34 No Check to Litigiousness, cent 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 ex- pedient of procedure, the effect of which were to cause ten innocent per- sons 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 frivo- lous one. No wrong that I know of can be a trivial one, which to him to whom it is done appears a se- rious one, serious to such a degree, as to make it worth his while to de- mand but an Encouragement. 35 mand redress at the hand 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 contradic- tion 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 encourage- ment to repetition, and its effects in the way of example. I know of no wrong so slight, that by multiplica- tion 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, M farthing 36 No Check to Litigiousness, 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 sus- ceptible of abuse.
In pecuniary cases, the smaller the sum in dispute, the less reserve is used in branding the conduct of the par- ties with the charge of litigation, of which in such cases the reproach is apt to fall principally, if not exclu- sively, 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 60,0001. a year. 151. a year is as much but an Encouragement. 37 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 dis- pute to his own feelings, that is, its ratio to its 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 par- ties, 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 import- ance: an object of which a tenth or a twentieth part, or less, might be of im- portance sufficient to justify from the charge of litigation, the maintenance of a suit. A shilling would be almost sure to appear to him an object altoge- ther trifling; an object by no means M2 of 38 No Check to Litigiousncss.
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 Bed- ford, than a single shilling (viz. than a four thousandth part of 501.) to many a man, in truth to probably the ma- jority of men in the kingdom. It is therefore more unjust, more tyranni- cal, 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 Marlboreugh or Bedford, to the amount of 501. The legislator, who on the plea of checking litiga- tion, 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 but an Encouragement. 39 and completely, as it is possible to re- fuse it.
That all men should have equal rights, not only would be politically pernicious, but is naturally impossi- ble: but I hope this will not be said of equal justice.
Trivial causes require no such facti- tious checks: to such causes were all expenses struck off that can be struck off, there are natural checks in abund- ance, 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 ren- der the act of commencing the litiga- tion 40 No Check to Litigiousness, tion blamable, the blame is never so great on the side of the party most fa- voured by the tax, as on the side of the party most oppressed by it. The party most oppressed is the complain- ant: the party who having suffered the injury, such as it is, claims or would claim satisfaction for it at the hands of justice. But, so as there does but exist the smallest particle of an injury, the party who claims satisfac- tion 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 par- ty, without rewarding the still greater misconduct of the other. If the tax applies a check where there is blame, it but an Encouragement. 41 it affords protection and encourage- ment 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 re- medy against litigation is the instru- ment. 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 consump- tion of his time.
The rich man, the man who has time and money at command, he sure- ly, if any, is the man to consume it litigiously and frivolously. No won- der however, if to a superficial glance, the poor should appear mure litigious than he. There are more of the poor than 42 No Check to Litigiousness, than of the rich: and to the eye of unreflecting opulence, the causes of the poor are all trivial ones.
"VVe think of the poor in the way of charity, for to deal out charity gra- tifies 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, how- ever, 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 pecuniary, its mi- nuteness is more conspicuous and de- fined. But to what is this expensive- ness but an Encouragement. 43 ness 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 sta- tute of King William (5. W. C. 91. § 3.) forty shillings more by another, no more than five years afterwards. (9 and 10. W. c. 25. § 3, 50.) To- gether, 41.: — half a year's income of a British subject, according to Dave- nant's computation above quoted. What is called mercy, let it \>e remem- bered, is in many cases, no more than justice: in all cases where the ground of pardon is the persuasion of inno- cence, entertained efther notwithstand- M:) ing 44 No Check to Litigious?iess1 ing the verdict, or in consequence of evidence brought to light after the verdict.* All punishments are accord- ingly 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 irremis- sible.f Taxes on law-proceedings, so far then from being a check to liti- gation, are an encouragement to it: an encouragement to it in eve- ry sense in which it is mischievous * For instance, the case of Mr. Atkinson.
f 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 Lord's 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.
and but an Encouragement. 45 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 preventing misconduct in any line, they annex punishment to miscon- duct 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 mis- conduct only, leaving innocence unop- pressed. Keep back punishment, till guilt is ascertained. Keep back costs, as much as possible, till the last stage of 46 No Check to Litigiousness, of procedure; keep off from both par- ties every thing of expense that is not absolutely unavoidable, where litiga- tion 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 in- stance 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 but an Encouragement. 4?
by the law ought to be governed, and governed uniformly and proportion- ally, 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 be- yond costs. — No mitigation, or en- hancement, in consideration of pecu- niary circumstances. No shades of punishment in this way correspondent to shades of blame: — in most cases no difference so much as between consci- ousness of injustice and simple teme- rity, nor so much as betwixt either and innocence. The power of adjudging as between costs and no costs, seldom discretionary: — that of apportioning, never: — nor that of fining beyond the amount of costs:— consequently nor that 48 No Check to Litigiousness, that of punishing both parties where both have been to blame. Were a power to be given by statute to im- pose, on a litigious suitor convicted of litigation, a fine to an amount not ex- ceeding 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.* Justice Justice * The distinction between temerity and con- sciousness of blame, a distinction pervading hu- man 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 Ro- man law. Malice, the term by which English Lawyers seem in some instances to have had in view the expressing consciousness of blame, pre- sents a wrong idea, since in common language it implies hatred, an affection which in many in- stances of conscious guilt, may be altogether wanting: — but an Encouragement. 49 Justice shall be denied to no many jus* tice shall be sold to no man, says the first of 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 six- pence, 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, 1 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 hare 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 pos- sible.
50 No Check to Litigiousness, of statutes, Magna Charta. How is it under these later ones? — Denied, as we have seen, to nine-tenths of the peo- ple, sold to the other tenth at an un- conscionable 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 acknowledg- ed, to be in some degree unfortusible. He had accordingly a project for check- ing litigation by raising the fees. I don't know whether it succeeded, nate, but an Encouragement. 51 nate, as well as altogether singu- lar, that, of an instrument deemed the foundation of all liberty, and magni- fied 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 un- der foot, without remorse or reclama- tion.* * Let us not for the purpose of any argument, give rise or countenance to injurious imputa- tions. 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 cer- tainly no comparison: but in point of political effect, it may not be altogether easy in every part 59 Why resorted to, 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.
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: litiga- tion, which where it stands for mis- chief, is the very mischief which the part of the parallel, to say which mode of abuse is most extensively pernicious.
species and acquiesced under. 53 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 incu- rious 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 abi- 54 Why resorted to, 54 Why resorted to, lity, 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-du- ties.— Thinking men look to conse- quences; they look to the feelings of the individuals affected: acting men look to the stamp: taxes on justice, taxes on property, taxes on consump- tion, are accordingly one and the same object to the optics of finance. Stamp- duties too have another most conve- nient property, they execute them- selves, and law taxes beyond all others: in short they exclude all smuggling.* * Law paper might be forged: but the diffi- culty would be to issue it.
They and acquiesced under. 55 They heap distress indeed upon dis- tress: but the distress is not worth minding, as there is no escaping it.
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 inconsider- able 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 •56 Why resorted to, 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 whe- ther, when it does fall, it will press up- on him most, or upon his adversary. He knows not what it will amount to: he has no data from which to calcu- late 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 ob- ject on which investigation would be thrown away, as comprehension is im- possible. 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 com- plaint r Before the thunder-bolt is fallen and acquiesced under. 37 fallen, it would be too soon: when fallen, it is too late. Shopkeepers, to- bacconists, glovers, are compact bo- dies: they can arm counsel: they come in force to the House of Com- mons. Suitors for justice have no common cause, and scarce a common name: they are every body and no- body: their business being every body's is nobody's. Who are suit- ors? 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 repugnant interests: to crush the injured, is to befriend the in- jurer.
May not ignorance with regard to the quantum and the source of the grievance, have contributed some- thing to patience? — Unable to pierce the veil of darkness, that guards from vulgar 58 Why resorted to, vulgar eyes the avenues of justice, men know not how much of the diffi- culty 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 na- tural, it may be all inevitable and in- curable, and at any rate it may be no more the fault of lawyers or law ma- kers, than gout and stone are of phy- sicians.— Happy ignorance! — if blind- ness 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 and acquiesced wider. 59 which activity has heaped up, or negli- gence suffered to accumulate, are the prices which, according to Montes- quieu, we must be content to pay for liberty and justice. A penny is the price men pay for a penny loaf: there- fore 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 con- tributed something, if not to the im- position, at least to the acquiescence? It is the wealthy alone, that either by fortune, situation, education, intelli- gence, 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 indemni- fication for the wealth they take from N him: 60 Why resorted to, 60 Why resorted to, 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 gene- rous pride of abstaining from the wrong which it is in our power to do; advan- tages such as these, are too precious not to be grasped at with avidity by human weakness: and, as in a country of politi- cal liberty, and under a system of justice in other respects impartial, they can only be obtained by a blind and indi- rect route such as this, the inconveni- ence of travelling in it, finds on the part of those who are well equip- ped for it, the more patient an acqui- escence.
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 and acquiesced under. 61