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 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. & 6 W. & M. c. 21. § 3.) forty shillings more by another, no more than five years afterwards. (9 and 10. W. c. 25. § 3, 50.) Together, £4:—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.[1] 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.[2]
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 blameable. 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 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, 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 blameable or blameless, it would be cried out against perhaps as a great power, too great to be given to judges without juries.[3]
- ↑ For instance the case of Mr. Atkinson.
- ↑ 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. [Bt 58 Geo. III. c. 29m (23d May 1818), the expenses connected with pardons are no longer to be paid by the persons pardoned, but by the Treasury.—Ed.]
- ↑ The distinction between temerity and consciousness of blame, a distinction pervading human nature, and applicable to every species of
