Front Page Titles (by Subject) CHAPTER XX.: REMEDIES,—COMPENSATION. - The Works of Jeremy Bentham, vol. 2
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CHAPTER XX.: REMEDIES,—COMPENSATION. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 2 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 2.
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Degrees in the scale of affluence, how measured for the purposes of compensation and punishment.
Of a person’s place in the scale of affluence, the altitude will be as the amount of his money and his money’s worth, directly; or the amount of his pecuniary burthen, and quasi-pecuniary burthens, inversely.
Accordingly, no assessment ought to be grounded on the consideration of his means exclusively: none without taking into the account the amount of burthens as above.
In the account of means, or say assets, due regard will be paid to the difference between income derived otherwise than from capital, and income derived from capital.
In the account of burthens will be comprised the expense of maintenance, afforded by the party to such dependents as belong to him, deduction made of such earnings, if any, as they are in the habit of making. Of such dependents, examples are the following:—
1. In the case of a married man, his wife.
2. His children, such of them as are under age and unemancipated.
3. Any helpless grand-parent, or other progenitor or progenitors, male or female, with whose maintenance he is obligatorily or habitually charged.
In and for the purpose of assessment made of a mulct imposed, the judge will proceed on conjecture—or say, vexation-saving estimate. In so doing, after putting such questions as to him shall appear appropriate, concerning the station occupied by the party in the scale of affluence, stating his means of subsistence as derived from ordinary daylabour, handicraftship, art, profit-seeking profession, or property—stating it at so much per year, or so much per week,—he will chereupon state the amount of the mulct, declaring at the same time its ratio to the amount of his annual income.
Tables constructed for this purpose, to save time and labour in calculation, will be kept hung up in the judicatory, and form part and parcel of the furniture thereof.
The judge will declare, that from such data as have come to his observation, this is the nearest estimate which he is capable of making.
Antecedently to this declaration, he will have elicited from the examination the amount of the pecuniary burthen. In the ordinary case of a person unmarried, this amount being equal to 0, a word or two will be sufficient for the probation of it. In the case of a female, small is the number of words which in general will suffice.
If, upon hearing the amount of the mulcts (regarding the estimate as excessive,) the mulctee chooses rather to undergo examination for the proof of the correct amount of his means of payment, than pay it or stand bound to pay it, he will declare as much, and the judge will proceed to take his examination accordingly.
Divers circumstances will be apt to concur in preventing an estimate thus taken from being so correct as could be wished. But they are inherent in the nature of the case; and the inability to reach the highest point in the scale of exactness is no reason for omitting to make the nearest approach to it which is consistent with the avoidance of preponderant evil from the same cause.
1. In regard to means. A person who, being attached to this or that profession, derives not from it, as yet, any quantity of emolument which does not to any degree fall short of that which is ascribed to him by the vexation-saving estimate, submits to a mulct which is in truth excessive, to save that humiliation and prejudice to his professional reputation which would be the natural result of the disclosure.
2. In regard to burthens. What may happen is, that a burthen bearing any proportion to his means, may be produced by the obligation, legal or moral, of affording maintenance to the offspring of an unlawful intercourse, or to a person with whom such intercourse is or has been maintained.
Costs the grand instrument of mischief in English practice.
When, through the instrumentality of an English judicatory, depredation and oppression are committed, costs are in such cases the capital instrument. No complaint so frivolous, but that, with the help of this instrument, the ruin of any one of the vast majority of the actual population may to a certainty be accomplished; and to every one who will make this use of it, a perpetual, and that an ample reward, is continually held out.
By some trifling imputation cast on his reputation by Nokes, a correspondently trifling injury is sustained by Stiles. Under natural procedure, at the first and only interview of the parties before the judge, the matter would be settled between them: Nokes receiving under the hand of Stiles an acknowledgment of the misrepresentation, with expressions of regret for the having given utterance to it, and an ample compensation for the two days of Nokes’s time consumed in the application for redress; one, by the application made to the judicatory for the mandate requiring the attendance of Stiles, the other by attendance paid by Nokes in consequence: fees to judge or judge’s subordinates, none; fees to advocate or attorney, none: no such assistance being of the least use.
So much for natural procedure. How stands the matter with technical procedure? The suit carried on in the usual manner, at the usual expense; and the misrepresentation being proved, the frivolousness of it at the same time made manifest, the judge informs the jury that they are bound to find for the defendant, but that the damages are at their option, and that the sum appointed to be paid on that score may be as small as they please.
The damages they accordingly assess at a farthing. Defendant triumphs: but the triumph is a dear-bought one. Behind this farthing lies a sum of from £50 to £300 in the name of costs, sadly contrary to the expectation of the unhappy Pyrrhus by whom this triumph has been enjoyed. If he has no more than a moderate share of business, whatever his employment may be, another such triumph is not necessary to the accomplishment of his ruin: the single one is sufficient, when, to his own costs, those of his adversary’s are also added.
Who set the plaintiff to work? The attorney: for out of these two or three hundred pounds the attorney pockets no inconsiderable share. Thereupon comes the usual outcry against attorneys—“O, what sad wicked men are these attorneys!”
But who set the attorneys to work? The judges and the House-of-Commons lawyers. By whom else was the system of depredation created and preserved? By the judges was it not created?—by the lawyers in both Houses, their descendants and others linked together by the ties of the same sinister interest, preserved: preserved in a negative way, by care taken never to introduce any measure that can operate as a remedy, completely obvious as is the remedy: positively preserved by standing up, and being known to be in constant readiness to stand up, to oppose with all the zeal that interest and interest-begotten prejudice can inspire, whatsoever proposed remedy shall bear on the face of it any promise of being productive of that effect.
Is not a reward—a real reward, thus perpetually held out by them to everybody who will be instrumental in the production of the evil abovementioned? Where is the villany in the profit of which they do not look to be sharers?—where is the villany—so long as, instead of punishment, it is reward that they reap from it—they are not at all times ready to do their utmost to render triumphant?
Yet while these men reap the greater part of the profit, and by their tongues contribute might and main to the success of it, the attorneys, who are but the machines for conveying the mischievous matter to their lair—the attorneys, whose share in the production of the mischief is in comparison as nothing—on the attorneys do the people, the silly and unreflecting people, cast all the blame. Thus comes an ex-chancellor, Lord Redesdale (by whose incapacity the unhappy people of Ireland were so long afflicted,) and, as if his own practice had not taught him so completely the contrary, observes the popular delusion, takes advantage of it, and by his false certificates assists in casting on that comparatively innocent branch of the profession all the blame.
By whom was this system of depredation and oppression invented and organized? Was it by the attorney, any part of it? No, but by the judges—the whole of it—the judges, with their partners and accomplices in both Houses for their protection and support.
Burthen of costs minimized.
Fundamental rule:—Antecedently to the decision as to the question whether any party is in the wrong, and if yes, who, and in what way, and to what extent in the wrong,—to the government, at the charge of the people, for the benefit of the people, in their eventual capacity of suitors, it belongs to take upon itself the burthen of costs, even though from its so doing the aggregate amount should in some degree receive increase. But this will not be found to be the case.
After minimizing the burthen, in so far as it cannot but rest on the parties, one or more of them, the endeavour of the legislator will be to fix it upon each party, in amount bearing a proportion to the degree in which he is in the wrong (or say, to blame, or blameworthy,) regard being had to the distinction between blamelessness, rashness, and evil consciousness.
By the burthen, is here meant the painful sensation, not the pecuniary amount of the loss by which that sensation was produced. For in so far as the location of the burthen has for its object, effect, and tendency, the prevention of future similar wrongs, it is by this sensation, and not by the quantum of the matter of wealth, that the effect produced will be proportioned.
When as between a party on one side and a party on the other side, pecuniary circumstances are to a considerable degree unequal, it follows, that to render the pressure of the burthen equal, it is necessary that the pecuniary burthen should be assessed in a larger proportion on the richer, than on the less rich: that proportion being directly in the ratio of the quantum of the matter of wealth possessed by them respectively.
Here, then, is a case in which, on an account different from that of blame, the pecuniary burthen of costs may be, and ought to be, assessed upon a party, namely, the magnitude, absolute and relative of the net quantity of wealth in his possession, or at his command.
In this mode of assessment there is nothing anomalous with relation to the other part of the system of government. The object—the declared object at least, of those who have the management of the public expenditure, is to maximize the equality, to minimize the inequality, of the pressure produced by the correspondent taxes: no reason can be assigned why the repartition of the sensible burthen should in this case be determined by principles different from those by which it is determined in those other cases.
Efficient and justificative causes of subjection to indemnificational obligation, in respect of costs of litigation, are the following:—
1. On the part of the obligee, criminality by evil consciousness.
2. On the part of the obligee, culpability by rashness or heedlessness.
3. On the part of the obligee, superiority in the scale of opulence, relation had to the position of the adverse party in that same scale.
Parties with relation to one another are—1. Adversaries; 2. Associated allies.
Considered with a view to eventual reimbursement at the charge of an adverse party, costs, say litigational costs, require to be distinguished into—1. Ante-contestational, or say, pro-contestational; and 2. Contestational.
By ante-contestational, understand such as have been incurred by a party, whether on the pursuer’s side or on the defendant’s side: on the pursuer’s side, before he has been constituted such; on the defendant’s side, before he has been constituted such.
Exceptions excepted, for reimbursement of contestational costs, indemnificational obligation will not be imposed in any case, without antecedent allowance and authorization of the expenditure, by a mandate of the judge. To a mandate to this effect, give the denomination of a litigational-disbursement-authorization mandate.
As a ground for the issuing of a litigational disbursement-authorization mandate, the judge confronts with one another, the two quantities, to wit—
1. The quantity of suffering in the shape of pecuniary loss, and other shapes, likely to cause to the party in question, for want of the disbursement, on the supposition of its not receiving authorization, and thus resting on the shoulders of the disbursing party.
2. The quantity of suffering likely to be produced in the breast of the party on the opposite side, in the event of the burthen being removed to his shoulders, from those of the party or parties on the other side.
In respect of contestational costs, indemnificational obligation will not be imposed, unless pre-authorization for the disbursement has been given by the judge; for if it were, the power of taxation, at the charge of one party, would thereby be given to the other. That to any party, whether in the right or not in the right, no power should be given exercisable at the charge of a party not in the wrong, is manifest.
Nor yet without modification should it be given at the charge of a party who is in the wrong. For in this case, excess to an unlimited amount might thus be given to the burthen so imposed; and beyond what is proper, on the joint consideration of satisfaction and subsequent punishment, whatsoever quantity of money is thus exacted, will be wrongfully exacted: the act is an act of oppression.
In proportion to a man’s altitude in the scale of opulence, will be the danger of his falling into transgression in this shape: for in that same proportion is his ability to make the sacrifice necessary.
Of all these transferences, remains the most important, which is the transference of so large a portion of the at present customary mass of judicial operations, from professional hands paid by the party, to the official hands paid by the public; all danger of abuse, from quantum and increase of private profit, being obviated as above.
Immediately or unimmediately—without or with the intervention of other minds one or more—in the judge’s mind must have been presented all the objects, by the contemplation of which his decrees have been determined. Behold now the effects, in so far as an intervention of this sort has place. Good in no shape; evil in a variety of shapes: evil even when the assistant employed is of the gratuitous class; evil incomparably greater when he is of the mercenary class.
In the first place, take the case where the evidence on which the fate of the suit depends, is all of it of the nature of personal and orally-delivered evidence: after that, the case in which ready-written or real evidence is substituted or added.
First, suppose the substitute a gratuitous assistant. Note, then, on this occasion, the principal is that one of the two to whom the facts of the case are exclusively or mostly known: this being the ordinary case. In so far as it is to the substitute that they are best known, these evils will have no place:—
Evil 1. Augmentation, doubling at least the quantity of time consumed: instead of the party stating the case at once to the judge, the party has to state it to his substitute, and then the substitute to the judge. Be its amount what it may, this evil is a certain one, being inseparable from the nature of the case.
Evil 2. Misrepresentation applicable to every part of the whole quantity of matter of fact, which the claim on the pursuer’s side has for its ground: misrepresentation by the substitute, with correspondent danger of deception and misdecision on the part of the judge.
How infinite the diversity is, which this evil admits of, is sufficiently obvious: endless would be the task of an endeavour to delineate it.
Evil 3. On the part of the substitute, incapacity of securing attendance and narration of such evidence as the supposed percipient witness has it in his power to afford: under no obligation is this witness to afford information to any person other than the judge.
Evil 4. Probable incompleteness and undue partiality of the mass of evidence.
In this state of things, evidence not being obtainable from any witness who is not willing to furnish it—to furnish it in the first place to the applicant, and thence eventually and probably in the judicatory to the judge, at the price of the vexation inseparable from the operation,—an exclusion is thus put upon the evidence of all witnesses who are not more or less partial witnesses.
True it is, that the party himself has no more power than his gratuitous substitute to discover or secure the delivery of reluctant evidence. But for the obtaining it from the authority of the judge, such evidence as the nature of the case happens to afford, he has a much better chance, when stating the case to the judge immediately, than he can have when the judge receives it no otherwise than at second-hand, subject to the danger of omission or misrepresentation, however unintentional on the part of the substitute as above.
Now suppose the substitute a mercenary assistant.
Infinite is the augmentation which the evil receives in this case.
Engaged by sympathy, the gratuitous substitute has no interest different from that of the principal, for whom he is content to subject himself to the mass of vexation inseparable from such business.
Opposite to that of his client (for such, in this case, is the name given to the principal) opposite in every point, is the interest of the mercenary assistant.
Opposite in respect of the collateral ends of justice: for out of, and proportioned to, the delay, vexation, and expense to which the suit gives birth, are his profits.
Opposite even in respect of the main end of justice, rectitude of decision,—avoidance of misdecision, with execution and effect accordant. For out of misdecision in the suit in question, may arise an appeal, or a new and independent suit.
Obvious indeed is the check opposed to this sinister interest, by regard to reputation; upon which another obvious supposition is, that quantity of business will depend. But the more closely the nature of the case is looked into, the more feeble and inadequate will this check be seen to be. Of this inadequacy the view will be the clearer, when the force of the sinister interest is taken into consideration.
Parties wronged preserved from ridicule.
An effectual security for appropriate aptitude on the part of the judge, as well as all other public functionaries, is the light of publicity kept directed upon all judicial operations, in all cases except the comparatively small number in which, by reason of this or that special cause, an adequate demand for temporary privacy, or say secresy, has place.
Of this publicity, one effectual mean is liberty to all persons without exception to take notes of everything that passes in the justice-chamber; and to the report founded thereon, to give whatsoever mode and degree of publicity the person in question is able and willing to give to it.
Of the instruction thus derived, the utility will depend upon and be in proportion to the clearness, correctness, and comprehensiveness, as also the exact relevancy, of the matter to which publicity is so given. The end and purpose of it will be counteracted by every lot of surplusage, that is to say, of irrelevant matter, however in other respects innoxious.
But it will be counteracted in a universal degree, and evil opposite to the ends of justice produced, if in the account so published, mention be made of any matter, the effect or tendency of which is to bring down ridicule upon an injured individual, by whom, at the hands of the judge, relief from the burthen of the wrong is sought, insomuch that the injured suitor obtains in the chamber of justice, along with relief from wrong, an addition to, and aggravation of it.
For the prevention of evil in this shape, every judge will, in his judicatory, keep an attentive eye on whatever reports happen to be given of the proceedings in his judicatory, by the public prints.
At the instance of the party wronged, or even of his own motion, he will place to the account of defamation, and consider as a species of the offence so designated, any published discourse, any part of which has for its object the producing mirth at the expense of a person wronged, on the occasion of the application made by him for redress at the hands of the judge: calling forth mirth at his expense, and thereby inflicting on him the species of mental vexation, the production of which is among the results of ridicule.
Female delicacy, how preserved from injury.
In a certain class of cases, by the course of the discussion, unless the arrangements necessary for prevention be established, the sensibilities peculiar to the female sex will be liable to be wounded, and the suffering produced by wrong will thereby, instead of remedy, be liable to receive aggravation. To put exclusion upon evil in this shape, will be among the objects of the judge’s care.
To give, on any occasion, in comparison with the great majority of the people, any preference to those classes which are nursed in the lap of prosperity, would be inconsistent with the greatest happiness principle, and thereby with the spirit and endeavour of the present code. More congenial to that principle—more conducive to equality—would be the opposite course.
But by the culture given by superior education to the human mind, sensibility is on various occasions increased: insomuch, that although from exhibitions and discourses by which, in the mind of a person in a situation in life, occupying a low degree in the scale of education, no suffering would be produced: yet suffering in a considerable degree acute might be produced in the mind of a person occupying a high elevation in that same scale.
Vexation by cheapness of appeal obviated.
Of appeal, correspondent delay is an indispensable concomitant. Delay has the effect of injustice while it lasts. To all persons whose condition is in any way deteriorated by delay, it has vexation for its concomitant. Evil in this, as in all other shapes, it will be the business of the law to minimize. To throw needless difficulties in the way of appeal, and in particular, to load this remedy with factitious expense, or to omit any means of disburthening it of this obstacle without preponderant evil, would in this stage operate as a denial of justice, as in the immediate stage. On the other hand, as by cheapness in the initiative stage of juridical proceedings, evils would be produced if not accompanied with measures of repression for the restriction of groundless or injurious ones, so will it of necessity be in the terminative stage. To the prevention of evil in this shape, the following arrangements are directed:—
In a penal suit, if in the opinion of the judge appellate, the appeal was groundless, and to such a degree groundless, that in the mind of the appellant it cannot reasonably be supposed to have been otherwise, power to the judge appellate to add to any punishment susceptible of gradation, which constitutes the whole or a part of the allotted punishment (burthen of compensation included,) any portion not exceeding (one tenth) or (one fifth) of the punishment appointed by the judge immediate.
On the appellant, if the original decree be not reversed or modified, will fall, of course, the burthen of compensation as to all costs imposed by the appeal upon the party or parties on the other side, as well as those imposed upon such party or parties on the same side, if any, as did not join in it.
Power to the judge, in consideration of the pecuniary circumstances of the parties on both or all sides, to reduce this same burthen of compensation in such manner as to him shall seem meet, stating, at the same time, the consideration on which such reduction has been grounded.
To this head belong the arrangements by which, in the sort of case above mentioned, the appeal-warranting function is given to the quasi-jury.
Power to the government advocate, in case of a groundless demand by either party for a recapitulatory trial before a quasi-jury, to demand the imposition of a mulct, on the ground of the damage to the public by the useless consumption of the time of the judicatory.