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. 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 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. 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.
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.
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 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 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.
 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.
 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.
 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 criminal cases; nor could it be rendered any thing like co-extensive with the grievance.
 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.