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APPENDIX. * —JUNCTIANA PROPOSAL. - 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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APPENDIX.* —JUNCTIANA PROPOSAL.
PROPOSALS FOR THE ON OF THE TWO SEAS,—THE ATLANTIC AND THE PACIFIC, BY MEANS OF A JOINT-STOCK COMPANY,
Grounds of expectation respecting the practicability of the proposed junction.
The most recent, as well as most determinate grounds, rest, it is believed, on the authority of the work, intituled, “Memoirs of the Mexican Revolution,” &c. by William Davis Robinson, in two volumes 8vo, London, 1820: the author, a citizen of the United States, a gentleman of good character, well known to the legation of his own state here in London. In Volume II. Chapter XIII. p. 263 is devoted to this subject.
It speaks (II. 269.) of the measure in question as being known to have been a favourite measure of the last of the two Pitts. It certainly was in the contemplation of General Miranda, whose enterprise was undertaken under the protection of that minister. It was from Miranda that the Edinburgh Review derived the principal part of the information contained in its article on the subject, anno 1810.
Being so long posterior to Humboldt’s great work, this of Mr. Robinson speaks of course (p. 265.) of the nine several supposed lines of junction, mentioned in that universally known work: but by Humboldt, in making the number of them so considerable, physical possibility is alone taken into consideration: length of voyage in respect of time, and consequently prospect of net profit, not being taken into the account: to which latter purpose, if the reports given by Mr. Robinson are to be depended upon, the nine will be found reduced to one.
Nothing can be more encouraging than the expectations held out by this account of his. Three spots, it is true, are mentioned. But of the three, taking the matter upon the face of his account of it, the one from Porto Bello on the Atlantic to Panamá on the Pacific, is decidedly impracticable: another, namely from the port formed by the river Guasacualco in the Atlantic, to Tehuantepec in the Pacific, not worth a thought in comparison with the third: a chain of mountains running between the two seas, (p. 287,) and the only chance depending on the existence of some ravine, deep enough to afford a practicable passage for a cut.
In this third proposed course through the lake of Nicaragua, no mountains are in the way. From the river San Juan (in English St. John,) running from the lake into the Atlantic, it passes on to the Pacific, either through the lake of Leon, which by a river communicates with the lake of Nicaragua, or by a direct cut at a less distance.
The information he speaks of as being derived from a number of persons of different descriptions (names not mentioned,) by whom the tract of country in question had been visited. The sum of it is as follows:—
I. Elevation of the land.
Between both lakes and the Pacific, the ground “a dead level.”
II. Depth of water on the side of the Atlantic.
III. Length of a strait cut at different parts of the above dead level.
Length of a river by which Lake Leon communicates already with the sea, “Leagues 8,” say miles 24.
Neither in Humboldt’s Work, nor in any other as yet published, is any considerable part of the above information (it is believed) to be found.
Under these circumstances, the Nicaragua track seems to be the one, the only one, to which, in the present state of our knowledge here in Europe, the attention of capitalists can be directed, with a view to the formation of any such company as is here proposed.
Outline of the proposed agreement for the accomplishment of it.
I. Situation and dimensions of the proposed spot.
Taking the conception of the spot from the view given of it in the maps to Pinkerton’s Atlas, the greatest tract of territory that would be requisite to be allotted to the purpose would be, that which occupies, in length, somewhat less than four degrees of longitude, geographical miles say 220, namely, from the mouth of St. John’s river in the Pacific; and in breadth, upon an average, a little more than a degree of latitude, geographical miles say a little more than 60. Upon the face of the map, the natural boundaries are, to the north, a chain of lofty mountains; to the south, another such chain, with the exception of the “dead level” above spoken of; to the east, the Atlantic; to the west,—in part the chain of mountains, having on the other side of it the territory of Costa Rica,—on other part, the Pacific.
In this tract of country may be seen the maximum of what it can be necessary should be ceded to the proposed company; whether, from this quantity, consistently with the accomplishment and perpetual maintenance of the junction for mutual and universal benefit, any and what defalcation can be made, will scarcely be ascertainable, until the necessary surveys have been made and reported.
Whatever may be the site and amount of it, call it for the present Junctiana.
II. Proposed source of benefit to the proposed company in a pecuniary shape.
1. The price of transit, whatsoever shape or shapes may be given to it: this price being to be received from the masters of all vessels making use of the communication.
2. The absolute property in the land (land covered with water included,) of all this territory, or of what lesser portion of it shall, on report of surveyors, as above, be deemed necessary and sufficient: thence, the right of selling it in parcels, and letting it out upon leases, for building and other purposes.
III. Proposed obligations of the company.
1. To pay to the local authorities a sum in the name of purchase money for the powers of government.
2. To pay the expense of the indemnification due to all such individuals, original inhabitants styled Indians included, as possess any interest in whatsoever land comes to be purchased: the value, so paid for, to be the present value only, not any such additional value as may be expected to be derived from the accomplishment of the measure. In case of disagreement, the prices to be referred to arbitration in manner hereinafter to be mentioned.
3. To defray the whole expense of effecting and keeping up the communication: including, as well necessary fortifications towards the two seas, as necessary means of communication of all sorts, such as canals, locks, bridges, tunnels, &c.: and necessary receptacles of all sorts for vessels, such as docks, jetties, &c.
4. In respect of the price of transit, as above, the company to admit vessels of all states, at the outset and forever, on exactly the same footing,—the state or states with which the agreement is made, not excepted: no favour, direct or indirect, to be given to any one at the expense of any other state, or of all states.
5. So in respect of purchase and renting of land, as above.
6. Proposition to be made to the Anglo-American United States, to take the Junctiana Territory under their protection, by admitting it into their union: terms, except so far as shall be excepted, the same in principle with those upon which the recently admitted states have been admitted: admitted namely for a time, and while in a state of probation, under the administration of the President of the United States, and as soon as ripe, admitted on the same footing as those other states, and with the same sort of government. Considering the benefit which, in so many shapes, these United States would reap from the accomplishment of the junction, and the honour conferred on their nation by the proposed spontaneous choice, their concurrence seems hardly to be doubted of. As to this point, see § 8.
7. No slavery, in any shape, to be allowed: should any vessel, with any slave on board, obtain admittance into the territory, every such slave, upon his entrance within the territory, to he free.
N.B.—It seems essential that, considering the magnitude of the advances which the company would have to make before any returns could be expected, every security which the nature of the case admits of, should be afforded to it: and in particular against any changes to which in their origin, states so lately emancipated from so bad a form of government, cannot but appear to stand exposed; society and manners, on the part of so large a proportion of the population, being as yet on so unfavourable a footing. As to this point, see § 7.
For the preservation of its rights and powers from injury, the company might stipulate for its having the appointment of a governor of the state so constituted, with a negative upon all laws. But quere as to the need of this? See § 7.
8. The entire price of transit, at the rate of so much per ton, to be made known and always kept known to all persons concerned: no enhancement by particular and undeclared collateral charges.
9. The maximum of it to be determined by the agreement between the contracting parties: no enhancement except by mutual consent, in consequence of casual expenses and consequent net loss: expenses, the nature of which will be to be specified in the ultimate agreement.
Mexico—sacrifices eventually requisite—inducements to compliance.
For the accomplishment of the measure upon the plan here submitted, the following are among the conditions necessary:—
1. That the expense be defrayed—not by the government to which the territory belongs, but by a joint-stock company.
2. That, for their security, the dominion, of the territory through which the communication is made, be ceded to the company.
3. That the dominion so ceded have—not on both sides of it a territory belonging to one and the same government; but, on one side, a territory belonging to one government, namely Mexico,—on the other side of it, a territory belonging to another government, namely Columbia.
4. That, for security to the capitalists, members of the joint-stock company, as well as for the benefit and satisfaction of all other nations interested, the territory in question be taken under the protection of the Anglo-American United States: of all other nations interested,—which is as much as to say, of all the other nations of the earth.
On this plan, at the hands of Mexico, certain sacrifices will, on certain suppositions, be requisite.
1. In Mexico, has any such idea yet been entertained, as that of executing the enterprise within her own dominions, and with capital to no greater amount than could be either raised by taxes, or obtained in some way or other from proprietors, subjects of her own government? In Columbia, there seems some ground for supposing that a conception to the like effect may perhaps have been entertained in relation to herself; forasmuch as, many months ago, a competent person was sent out from Europe by Columbia to make surveys in this view; and, on any such occasion, its own internal resources are the ways and means which a government would naturally look to, before it thought of extraneous ones.
In Mexico, should a persuasion to this effect have already obtained possession of men’s minds, a proposal such as the present seems to have no great prospect of finding acceptance.
The probability, however, seems to be on the negative side.
1. The first point on which this part of the question will turn, is—what is the quantity of capital that will be requisite? As to this point, everything is, it must be confessed, in utter darkness. Estimate being as yet altogether out of the question, what remains is loose conjecture, and without anything but the general nature of the enterprise for its ground. On this ground, no professional man would, it is believed, set the expense at less than several millions of pounds sterling—between four and five times as many dollars.
Whatsoever be the amount, thus much is however certain, that the expenditure would require to be kept running on—running on for a length of time, probably for several years, before any the least return for the money could be received.
That any such sum should be raised by taxes—raised by government in its infant, and as yet unsettled state—by taxes over and above all that will be requisite for carrying on the ordinary business of government, is an expectation of a result, which, upon the face of it, does not seem probable.
As to a capital to be raised without taxes—a capital to be furnished by a joint-stock company, having for its members, to an exclusive or principal amount, individuals belonging to the State of Mexico:—the formation of any such company depends upon two conditions:—
1. Upon the existence of capital, to such an amount, at the disposal of individuals.
2. Upon the inability of finding other applications for it, and those of an ordinary nature, that would be still more advantageous: applications, in the instance of which the employment given to it would be under the eye of the proprietor—at the choice of the proprietor—determined on each occasion by the will of the proprietor; and would not, as in this case, have to wait during an indefinite time, for every the smallest return.
If, for example, the information that has been received is correct, fifteen per cent. and more, and with an immediate return, may always be made of capital in Mexico; while, by an English capitalist, less than ten per cent., if placed upon a footing regarded by him as an assured one, would be caught at; and for this, or something not more than this, if possessed of sufficient means of living from other sources, he would even be content to wait. On the establishment of the London Docks for example, ten per cent. was the maximum looked to; and this was long before the commencement of that state of things, by which the profit capable of being expected from capital, has been of late years so much reduced.
This point being determined upon, if the determination be that a joint-stock company, formed by capitalists of all nations, foreigners as well as natives shall be resorted to; then comes the question about the portion of territory, and the cession to be made of it.
If the only portion that required to be ceded, were the portion to be purchased by the company for the purpose of the communication, that is to say, the portion through which the work would have to be carried on, thus far no great difficulty presents itself: thus far, by the supposition, Mexico would have her equivalent: the sacrifice would be such as she would be prepared to make: the equivalent, one with which, by the supposition, she would be satisfied.
But the difficulty, if there be any in the case, lies here. It is essential to the plan, that Columbia be not excluded from a share in that benefit which consists in contiguity—immediate contiguity—to the spot through which the communication is made. For this purpose it is necessary that, while on one side Mexico has the territory immediately contiguous to the territory through which the communication passes, Columbia should have the territory immediately contiguous to it on the other side. But, according to the latest account that has been made public, viz. Mr. Robinson’s, as published in London, anno 1821, there is but one spot that affords any tolerably fair promise of any such junction on profitable terms; and that is a spot in which Lake Nicaragua is included; and if the information received be correct, not only the contiguous land on the side of Mexico is regarded as appertaining to Mexico, but also the contiguous land on the side of Columbia.
If this be not the case, if the claims or expectations of Mexico do not embrace both sides, here ends this difficulty: but if they do embrace both sides, then it is that the difficulty will have place; for then it is that by Mexico, according to the plan here proposed, a sacrifice to a certain amount will have to be made.
For its direct object, this plan has the securing the establishment of the communication for the benefit of all nations without exception; and more particularly for the benefit of Mexico, Columbia, and the Anglo-American States; these being the three nations to which local proximity will render it in a peculiar degree advantageous. But moreover, for its collateral objects it has the prevention of all that ill-will, as between Mexico and Columbia, of which the possession of so great an advantage to Mexico, to the ex lusion of Columbia, could scarcely, the nature of man considered, fail of being productive betwixt Mexico and Columbia. With more propriety might it have been said, between Mexico on the one part, and on the other part Columbia, backed by all the other nations of the earth.
This heart-burning, this source of war and disappointment—this it is that presents itself to view as the great natural stumbling-block to the undertaking: this stumbling-block it is the principal object of this proposal to remove.
Suppose even that, by her own resources and within her own dominions, it were completely in the power of Mexico to establish the communication, still this stumbing-block would remain unremoved; a nation which for a long time, at sea at least, could not but remain a weak one: this weak nation, embarked in a project, presenting a face of injury to all the powers upon earth!
For the sake of peace in general, and for the peace and safety to Mexico in particular, this proposal has therefore for its main object, the preventing a possession thus important to all nations, from being endeavoured to be taken for a subject of exclusive property by any nation—to preserve it from becoming a bone of contention to all nations—to preserve it from this fate, by placing it in the conjunct hands of three nations, in the character of trustees for themselves and for all others without exception.
On the supposition, that Mexico has placed herself, and is known to have placed herself, in so dangerous a situation, and that the aid of capital from without is at the same time regarded by her as necessary, would any such capital to any such amount be found?
By capitalists, the danger against which, in this case, adequate security would be looked for, is not merely want of inclination to secure to them the stipulated benefits, but want of ability. But as to this point in the case supposed, the company would behold itself in a state of dependence, not only on Mexico herself, but on every other power, with which, either on the account here in question, or on any other, Mexico might, at any point of time, however distant, find herself in a state of hostility. Should any such hostility at any time have place (and can it rationally be supposed that it will not at any time have place?) the most prominent object would of course be this matchless jewel,—this matchless key to commercial advantage: the first endeavour would be either to take possession of it, or (as England did by the Washington capital) to destroy it; and in either case, what would be the condition of the company?
Hereupon comes the question—the security here proposed, will it be sufficient? O yes: that it will: this position requires a separate consideration; and the truth of it will be rendered (it is hoped) sufficiently manifest in another place. See § 8.
Upon the plan of universal benefit here proposed, all nations would behold in Mexico a friend. Upon the plan of exclusive benefit to Mexico, this plan of universal benefit being supposed rejected, and known to be rejected, all nations would behold in her an enemy. Upon the plan of universal benefit, all other nations, in their competition with these two nations and one another, are secured against every disadvantage, except that which has been established by the hand of nature; that is to say, local distance. Upon the plan of exclusive benefit, they would behold themselves exposed at all times to extortion—to extortion blind and boundless: they would look to the Vistula, to the Elbe, to the Rhine: in a word, to all those water communications which in Europe run through different states. All this they would look to; and, in the scene of self-pernicious selfishness, so universally and constantly exhibited in the old world, behold evidence but too conclusive of the like mixture of improbity and folly in the new.
To Columbia, such virtual hostility could scarce fail to be, in a peculiar degree, galling and irritative. To Mexico, to the exclusion of Columbia, the junction would, on this supposition, give the prodigious advantage of a water communication between her own ports in the Atlantic, and her own ports in the Pacific. Meantime, for this same advantage, in the case of Columbia, the demand is equally urgent.
Suppose her next neighbour in possession of it, and herself for ever either destitute of it, or dependent for it on the ever precarious good-will of a foreign state,—the very idea of such a state of things,—could it, consistently with the nature of man, fail to have irritation for its accompaniment? While they themselves are confined to the supremely tedious sea communication round Cape Horn, or to the not much less tedious internal communication up the rapid current of the river Magdalena, with a tedious land-carriage at the end of it—the mercantile men of that already-established republic, with their rulers at their back—is it in the nature of man they should look with other than an evil eye on their rivals in the Mexican state, if in the exclusive possession of so irresistible an instrument for throwing them out of the market?
The Columbians, it is well known to Mexicans, have, for a considerable time past, been regarding this jewel with a proprietary eye. After many unexpected delays, so late as February 1822, a civil engineer went from Europe to make surveys in this view. Exclusion from it would produce in their breasts the sensation of a loss. In the breast of Mexicans, the non-acquisition of it would not produce any such sensation as that of loss. By the acquisition of it, in equal shares, on the here-proposed partnership footing, the sensation of gain would be produced alike on both sides.
In this state of things, supposing the partnership plan rejected, if it were not really the interest, it would at any rate appear to be the interest, of all classes in the republic of Columbia, to act in a manner more or less declaredly hostile to Mexico—to obstruct the settlement of the government—to foment divisions—to keep the country in such a state of poverty, as should oppose an insuperable bar to her putting herself in possession of so exclusive and invidious an advantage.
All this while, what should never be out of mind is, that for all these surmises, unpleasant as they are, not any of the parties concerned, but the penner of this proposal, and he alone is answerable. All individuals, on whom any thing depends, being on both sides alike unknown to him, the propensities so universal in human nature constitute the only source whence these indications of probable hostility have been derived.
A much more pleasing object of contemplation to him is the state of amity—cordial and durable amity—which the sort of partnership here proposed could not fail to number among its natural fruits. The infant state would behold in them its common parents. In the Anglo-American union, of whose kindness the Columbian republic has had such recent experience, and at whose hands the Mexican state has so sure an anticipation of the like kindness, they would behold a common friend, and a friend, in case of misunderstanding, whether on these or any other points; a common referee—a referee, such as for impartiality, probity, and sound sense, has assuredly never as yet been matched in the history of nations.
One advantage, however, it must be confessed there is, of which, in this plan, Mexico would put herself exclusively in possession: an advantage in which neither any other nation, nor even Columbia herself, could claim, any the least share. This is the glory of so extraordinary, not to say unexampled, a manifestation of the union of those two virtues, to which all other virtues are reducible—effective benevolence and self-regarding prudence. In fact, it would be nothing more than a sacrifice of personal interest ill understood, to personal interest well understood: still, so difficult to human weakness is every such sacrifice, so imperfectly understood as yet is the connexion between social and personal interest, that the characters of generosity would not the less assuredly stamp themselves, upon the face of the sacrifice, in the most conspicuous and unfading colours.
So much as between Mexico and Columbia. Now, as between Mexico and all other nations.
As, by refusal of this cession, Mexico would stand forth in the eyes of all other nations in the light of an enemy of their common welfare, so by consent to it, she would establish herself in the character—the conspicuous, the indisputable, the indelible character—not simply of a common friend, but of a benefactress—a common, universal, and unexampled benefactress. To her they would behold themselves indebted—not merely for a benefit, but for such a benefit as, unless it were without design or expectation on the part of the benefactor, the nations of the earth, taken in the aggregate, never yet received at the hands of any one. Gratitude is therefore an affection, of which, in so far as in minds so situated, any such social affection can have place, she will be an object in all eyes—in the eyes of the present generation, and of all future ones. By Spain, and Spain alone, can any exception to this observation be afforded. But no longer than the present delirium lasts, can this exception last: nations are not, like individuals, exposed to any such lamentable disease, as insanity coeval with existence—insanity beyond the reach of cure.
Howsoever liable to become faint, the colours of national gratitude may be, such is not the case with the impression made by respect. Respect is a tribute, which, where really due, not even the bitterest enemy can altogether refuse: and as to time, tribute in this shape, so far from being diminished, is even increased by it.
The cession—shall it be gratuitous?—shall it be for a price?—if for a price, by whom paid?—by Columbia in the whole—by the proposed company in the whole?—by Columbia and the proposed company in shares?—and if so, in what shares? Questions, these which of necessity must, in the present stage of the business, be left unanswered.
Thus much, however, may even here be mentioned; namely, that if by Mexico a price is looked for, self-regarding prudence may remain or not remain,—there at any rate ends benevolence,—effective benevolence, with whatever glory encircles a virtue of such matchless rarity among nations. There ends that glory to Mexico, and there commences embarrassment and obstruction. On a possession such as that in question, who shall fix a value? On what grounds can it be fixed? With an amount fixed upon without grounds, who will be satisfied? Be it what it may, who will be content to pay it? Meantime, thus much may be answered in the negative, and thence what follows from it in the affirmative. No preference must there be, in respect of the price of transit. By any such preference, the simplicity of the plan would be destroyed: the merit of it as towards all other nations would be destroyed: in this shape, an advantage could not be given to Mexico by Columbia against herself, without its being given as against all other nations. This shape being set aside, money seems therefore to be the only shape in which, if in any, advantage could on any such score be granted.
Columbia—her particular inducements to concurrence.
After what has been said on the subject of those inducements which apply to the case of Mexico, next to nothing remains to be said of those which apply to the case of Columbia. On the proposed plan, none present themselves, but those in which she will be a sharer with Mexico: of these in the next section.
With regard to Columbia, thus much only remains to be said, namely, that if the glory of the cession is assumed by Mexico, as above, whatsoever net profit, in any more substantial shape, comes to be afforded by it, will fall of course to the share of Columbia.
Inducements common to Mexico and Columbia.
For the next section is reserved the consideration of the more striking benefit, in which, upon the proposed plan, these two new states will see the old established Republic of the Anglo-American United States sharing with them, and yet without detriment to them, or either of them, in any shape. What remains for the present section will not require many words.
The spot ceded to the company for the formation and security of the communication, will naturally be a seat of new created opulence and population: elements of prosperity, rapidly increasing from the first, and till the spot shall have been incapable of holding any more, for ever on the increase.
A communication in any shape effected, commercial functionaries and agents would immediately repair to it from all nations, and with them or after them, men of all occupations from all nations on both sides of the American continent, the Asiatic, as well as the European. Junctiana, with its two principal towns, one on the Atlantic, the other on the Pacific, would present to every eye the civilized world in miniature.
The hands, of so many various descriptions, of whom in such multitudes the labour would be necessary—the functionaries of the superintending classes, whose presence would be necessary for the giving direction to all that labour—the members of the establishment, civil and military, which, upon a scale of even such perfect frugality, would still be necessary—all these multitudes put together, would form a sensible addition to the active population and circulating wealth of the territory, even from the very commencement of the work.
The narrower the spot thus allotted to the company, the more speedily of course will all this mass of wealth and population begin to run over, and spread itself over the two great states on each side of it. But be that as it may, the frontier on each side can scarce fail to be marked by a flowing tide of the matter of national prosperity in both shapes. Of this influx, so much as is formed by emigrants from other states will, with reference at least to the two states in question, be so much created, as it were out of nothing, and in this advantage no other nation will possess any the least share.
For anything like a clear or correct conception of the advantage derivable to any tract of country, from the accession of settlers in its immediate vicinity, recourse should be had to the state of things in this respect, in the Anglo-American United States, as depictured in the various printed accounts, that have from time to time been given of it, by statistical writers and travellers.
Felicity, in these shapes, has the advantage of presenting determinate conceptions, by being expressed in figures. Benefits, not susceptible of any such precise expression, but of still superior, because of anterior importance—anterior, as being the efficient causes of them—are those which will be derived, in the shape of mental improvement in every line, intellectual and moral together. In the little Republic of Junctiana, her two great neighbours, parents as they are to her, would enjoy the benefit of a common school, established under the eyes of both of them: an all-comprehensive school, of everything that is useful in art and science, but more particularly of those things that are most useful,—good legislation, good judicature, good government in every line. This, indeed, supposes and assumes, that the territory of Junctiana will be a member of the Anglo-American United States, and thereby, that the government will be in the only form to which that school can give admittance (see § 7.) for if it be in any other, nothing that is good can be answered for, on any tenable ground.
Inducements common to Mexico, Columbia, and the Anglo-American United States,—water communication between their ports on the one ocean, and their ports on the other.
Of this benefit little need here be said, after the bare mention of it. Of the matters of fact on which the magnitude of it depends, nothing, in addition to that which the maps indicate, can here be said. To the inhabitants of the several territories, and in particular to those by whom they have been contemplated, with either a political or a commercial eye: to them, and to them almost alone, must the cognizance of this part of the field of consideration be referred.
For the present, and, doubtless, for a long time to come, by Mexico and Columbia will this benefit be possessed in by far the greatest magnitude. With its settlement in the Columbian River that empties itself into the Pacific, the confederation of which Washington is the capital,—Washingtonia, if for this purpose it may for the moment be called,—will, at the first, be in the state of the hen with one chick. But out of so fertile a womb, say who can, how many more such chicks may not be destined to be poured forth. At any rate, if it be worth while to keep her fed by a frequently interrupted water-carriage, and at the end of it a land-carriage, over a chain of mountains of 200 miles in length, much more so must it be through a level and unbroken channel, of which dry land forms no part.
In the instance of all three states, this benefit, whatever may be the amount of it, has two mutually contrasted, yet intimately connected, advantages. To these states it belongs exclusively, as compared with all other states. At the same time, neither in the eyes of any one of those other states, can it be a ground of complaint, or an object of jealousy. If the act, of which it is the result, were the act of man—of man, with his selfish and anti-social arrangements—yes. But no; it is the act, not of partial and hostile man, but of impartial and bounteous Nature. Upon the here-proposed plan, the only acts in which man has any concern, will be so many manifestations of beneficence, universal and indisputable beneficence.
In the eyes of capitalists, the proposed protection at the hands of the Anglo-American United States, necessary and satisfactory.
The party here considered, as that to which such protection would naturally be looked upon as necessary, is the proposed company; the body of men by whom, antecedently to all commencement of profit, so vast a capital will be to be expended.
1. First as to necessity.
Without such a security, it seems difficult to say in what quarter, for such a purpose, a prudent set of capitalists could behold a sufficient ground for confidence.
On the part of the state or states, out of whose territory the requisite spot of ground would be to be carved, two points (it has already been observed) would require to be established: the constancy of their disposition to perform their part of the engagement, and the permanency of their power so to do.
But in respect of both these points, not only now, but for an indefinite time to come, persons in the situation of those from whom the capital would have to come, cannot but be in a great degree in the dark.
Take in the first place Columbia, the first-born and best known of the two infant states.
1. At the time at which this line is writing, neither is Porto Cabello, the last port remaining to Spain in the Atlantic, known as yet to be in possession of Columbia, nor is the result of the expedition towards the Pacific as yet known. In any complete state, the Republic, therefore, is not as yet so much as formed.
2. Of the effect of its constitution, and of its deportment in a state of peace, no experience whatever can have as yet been had.
3. Of the founder of this state, the Liberator Bolivar, the character forms no doubt already a very considerable ground for the requisite sort of confidence. Not only does it stand high at present, but it has for a long time done so in the estimation of those countries from which the capital will have to come. But the life of a single person, and that still exposed to the chances of war, is but a slender prop to lean upon. Nor, for some time, owing to the state of her military occupations, can matters of a civil nature be so much as submitted to his cognizance.
One circumstance, indeed, there is, which it may not be improper to mention in this view, and which, to English and United States’ capitalists, cannot but be of an encouraging nature. The five men in whose hands the executive power is at present; namely, General Santander, vice-president of the Republic, Mr. Gual, minister of Foreign affairs, Mr. Restropo, minister of the Interior, Mr. Castillo, minister of Finance, Mr. Briceno, minister of the War and Marine Department, are all of them, it seems, well acquainted with the English language; and to men of English lineage, acquaintance with the English language, will naturally serve as a sort of circumstantial evidence of English ideas and affections. Still, however, this, though it is no trifle, is all which, at the vast distance of Bogota, the present capital, from the place of inquiry, there has as yet been time for the public in England, or in the Anglo-American United States, to learn, even in relation to the executive government; and as to the executive government, it is but the organ of the legislative. In London, the constitution has, indeed, though only within these few days, been made public. But the constitution of a state is one thing, the conduct of the government and the people under the constitution, another thing; and of this there cannot as yet have been any the smallest portion of time for observation and experience to have applied themselves to.
True it is, that before the earliest time at which any agreement, grounded on this or any other basis, can have been entered into, light in a considerable degree may naturally be expected to have been cast upon all this darkness. A small number of years, however, how tranquilly and prosperously soever they may have passed on, can in such a case afford but a slight foundation for the appropriate confidence; and, in the mean time, if the present opportunity be not embraced,—when minds are on the alert, generous affections not yet cooled, and what is more determinately material, capital, which as yet is in an overflowing state, not yet settled, in channels from which it cannot be diverted,—this or that unfavourable turn, taken by the political machine, may have opposed a final bar to the accomplishment of this matchless work of universal beneficence.
Thus much even as to Columbia. As to Mexico, to the eye of an English capitalist, everything in that quarter is as yet in utter darkness.
The result seems to be—that, without adequate extraneous security—security on both the above points; namely, permanency of inclination, and permanency of power—without additional security, such as nothing but the guarantee of a fully established government can give, capital to a sufficient amount would have but small likelihood of finding a sufficient ground for confidence.
To what government, then, for any such purpose, can expectation turn itself? Assuredly to one alone: and that is, the government which has here already been so continually presented to notice—the government of the Anglo-American United States.
In that government, prudence is too consummate and too constant, to admit of its entering into any such engagement, without an assurance of adequate benefit to the great community entrusted to its care. The grounds for such assurance will be touched upon under the next head. Under the present, their sufficiency must be provisionally assumed.
The company will require sufficient assurance of its being permitted, at all times to come, to exact the price of transit, and the rents and profits of its lands. Meantime, for the exercise of the powers of government on a sufficiently frugal plan, and in particular for the appointment of fit functionaries, it stands irremediably incapacitated—incapacitated, partly by local distance, partly by its own unchangeable constitution—an aristocratical government, the shares in which will be continually shifting hands, objects of purchase and sale, no one of all these rulers knowing anything about his subjects, nor caring anything more about them than he knows.
Were the details of government in hands so circumstanced, a necessary consequence is, that in the minds of the leading men, in this instance as in every other, the prime object would be patronage. To render this source of profit the more productive, useless and needless offices would gradually be multiplied, the emolument attached to them swollen to the utmost possible amount, pensions of retreat added, and the richest of the offices improved into sinecures. The proprietors at large, not finding, any of them, adequate inducements to expend their time upon the details of the government or the management—no individual among them beholding any recompense for his labour, unless it were in the being let into a partnership of the sinister profit, in the repression of which the only service he could render would consist—these proprietors, the great majority of them, would at all times, with the necessarily accustomed blindness and negligence trust everything to those same leaders.
Thus, by the ever-beaten track—thus, a sure as man is man—would a government so constituted go on from worse to worse: the permanent prosperity, not only of its distant subjects, but of the company itself, that is to say, of the great majority of its members, offered up as a constant sacrifice to the particular and sinister interest, real or imagined, of a small junta of the leaders.
In a word, in neither of the two only shapes in question, could the profit be rendered permanent, by any other means than the establishment of a form of government, which had really for its object the greatest happiness of the greatest number of the people. But this it could not have, any further than in proportion to the share which the people themselves had in it. In such a situation as that in question, the people, it may be said, are not as yet of sufficient age to go alone. Such would assuredly not be the language in Columbia: such, it is hoped, would not be the language in Mexico. But such would but too naturally be the language in England. Well, then, in Washington may be seen an institution, which has long been in the habit of taking in infant states to nurse; witness Indiana, Illinois, Alabama, Missouri: and how excellent the system of nursing is—how admirable a dry nurse the President has always been—experience has abundantly testified. No sooner were the infants of an age to go alone, than the alacrity with which the leading strings would be taken off, has also been abundantly testified. Nor in all this is there anything to which any such imputation as that of vague theory can attach itself: it rests throughout on practice—long-continued and universally-notorious practice.
The circumlocution of “the Anglo-American United States,”—a circumlocution as yet indispensable—for these are not at present the only American United States,—this circumlocution, howsoever where precision is an object, indispensable, is, to any other purpose, intolerable. Well, then—Washingtonia would, by the supposition, ease the company of the cares of government: she would do for the company, and continue to do, as she has always done, well, and to perfection, that which, for the company to do for itself, in any tolerable manner, and for any length of time, would be morally impossible.
The company being at the expense of the fortifications, these same fortifications would on both sides,—and in particular on that which is most material, the Atlantic side,—be in the hands of the company: here, so long as the fortifications remained untouched, would be even against the inhabitants themselves—the inhabitants of the Junctiana territory—a security, a substantial security for the main source of profit, the price of transit. Together with the fortifications, to the company would belong the function and expense of garrisoning them. This it might do without considerable danger to itself—without considerable danger from infrugality and peculation: out of two small garrisons, the number of official situations being determinate, no great pickings could be made.
But, in case of aggression from any distant power, how would the fortifications be to be defended? By land, indeed, under a government such as here proposed, the assistance of the inhabitants of the territory might be trusted to as a sufficient defence. But by sea, a source of defence suited to the nature of that element would be necessary: and, for this defence, not only the navy of Washingtonia on the spot, but the mere name of it, would be sufficient. Under the assurance that making war upon Junctiana, would be making war upon Washingtonia, of no such war does there seem any the smallest danger at the hands of any other states. To destroy the communication, would be to put an end to their own use of it: to injure it, would be to injure themselves, were it in any other view than the putting themselves in possession of it. By putting themselves in possession of it, they could do themselves no service, any further than they could keep it. Keep it they might, if a navy alone would suffice to keep it. But this they could not do: no such thing could any one of them do without an army likewise: an army, and that sufficient to maintain itself against the three powers perpetually confederated in the defence of the object of a conquest so obviously untenable.
Anglo-American United States,—their inducements for granting the protection requisite.
I. As to the guarantee looked for at their hands.
The purpose for which the concurrence of the long-established American Republic is regarded as necessary, has been already stated,—the affording to capitalists a sufficient assurance that the source of their profit will not be dried up—dried up, either by hostility from without, or by misconduct in any shape within.
The shapes in which eventual assistance is looked for at her hands, have also been already brought to view:—
1. First of the two mischiefs against which the guarantee is looked for: Hostility on the part of any maritime power—hostility directed to the purpose of destroying, injuring, or seizing and keeping, the line of communication: eventual assistance looked for, that of her naval force.
If, of the engagement for such eventual assistance, any actual addition to expense were a necessary consequence, here would be a burthen—a burthen to set in account against the accompanying benefit. But for any such expense, no probable need, it is believed, can be pointed out. For general purposes, a naval force, to a certain amount, she keeps up already, and will at all times keep up. The sight of this force, ready at all times to be called for and brought into action, should the conjuncture in question—the casus fæderis, as it is called by publicists—ever come into existence, will, in all human probability, be at all times sufficient for the purpose: to prevent its ever being called for, its universally known readiness to come whenever called for, will suffice.
2. Second of the two mischiefs against which the guarantee is looked for: Misconduct on the part of the population of Junctiana; misconduct, whether in the general shapes of misrule or anarchy, or in the particular shape of injustice towards the company, depriving them of the possessions stipulated for by them, in return for the expense to which this same population will, the greatest part of it, have been indebted for its existence.
The Junctiana territory being, by the supposition, a member of the United States; namely, in the first instance, upon the footing of their other dependent territories, and, as soon as ripe, upon the equal footing of an independent confederate; the following are rights, for the enjoyment of which the expectation of a guarantee on the part of the union will scarcely present itself as unreasonable: understand a guarantee, not only against all other nations, but against the Mexican and Columbian nations themselves, their consent to it being included in the agreement:—
1. Right of exacting the price of transit—so it be for ever without enhancement, unless it be in certain stipulated cases; 2. Right of receiving the rents and profits of whatever lands the company is proprietor of, as in the case of any other proprietors. Under these two heads is comprised everything that seems necessary.
II. As to their inducements for the affording this same guarantee.
To the entering into the engagement thus defined, refusal, or even reluctance, on the part of the United States in question, does not seem much to be apprehended.
By the supposition, the infant state would from the first be a member of their confederacy: in the first instance, and so long as in their judgment should be necessary, in a state of pupillage and probation—on the footing of what they call a territory—a territory nursed in the manner in which they are so well accustomed, and with such conspicuous success, to nurse infant states. Now, then, comes the question of their own skill in this most useful, most noble of all arts. In this instance any more than in any former one, can any distrust on their part reasonably be expected to have existence?—distrust of their own skill, and after so many conclusive evidences of it as have been afforded by experience?
If indeed to such guarantee as that in question, any considerable danger were attached of their being engaged in war, here would be a contingent evil, to be set in the balance against the certain good. But, of any such war, the utter improbability has (it is hoped) been rendered sufficiently manifest. See the last preceding Section.
Without adequate prospect of benefit to their principals, duty and interest would concur in preventing these constantly and necessarily faithful trustees from taking any such part in the affairs of others. But of such benefit can there be any deficiency?
1. In the first place, on the supposition that, from the communication in question, benefit to any amount will be derived, of all the nations of the earth, will not they reap the greatest share of it? Already their commercial navy is not greatly inferior to that of England—to that of every other country it is decidedly superior. Erelong, in the natural course of things, it cannot fail of being superior even to that of England: and, whatever be the number of her vessels that will find a convenience in availing themselves of the communication, the convenience to each such American vessel will, in proportion to its greater vicinity to the spot, be rendered greater than it can be to any European one.
2. As to the particular benefit, from the so much speedier communication with the settlement or settlements, present, future, and contingent, in the Pacific,—on this subject enough has been already said.
True it is, that for the representatives of Junctiana, when they come to sit in congress, distance from the nearest part of the present territory of the United States will give an additional sea voyage of some days. But, upon the whole, would the length of time occupied by the conveyance be in any considerable degree greater than that which is at present occupied by the state most distant from the seat of government? And, whatever it be, what, if any, will be the amount of the practical inconvenience? At the utmost, it may operate as a slight deduction from the value of the benefit, but cannot assuredly ever operate as a bar to it.
Another acquisition, which, though not of quite so substantial a nature as either of the preceding ones, does not seem much in danger of finding the nation in question altogether insensible to its value, is that political gem called glory: glory—not of that bloody hue which, it is hoped, is growing more and more out of fashion, and will one day be as little in repute as spangles and embroidery upon a coat at present, but glory of the very purest water—the glory radiating from the uncontrovertible proof that will thus be given, of its having been looked up to as the nation which, in the opinion of two other free nations, stands highest in the composite scale of national probity, wisdom, and benevolence. Stands highest? or should it not rather have been said, is the only nation, in the government of which, any such union of virtues could, in the nature of things, have ever yet found place?
All other Nations,—their inducements to acquiescence.
From the proposed communication, formed upon the proposed plan, all other nations have more or less to gain, nothing to lose. Whatever may be the gain, it will, in the instance of each such nation, be at the risk of others, without risk in any shape to itself.
That which they will gain by this means, they could not, any of them, gain by any other means.
A PROTEST AGAINST LAW-TAXES,
(printed in 1793, and first published in 1795.)
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 anything 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-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 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 everything 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 birthright: 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.*
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 imposition at the commencement of the suit, and during more or less of its progress, see their substance swallowed up by the taxes before the termination of it. The two preceding modifications of abuse, either of them bad enough, are thus put together, and compounded into a third.
Considered with a view to the treatment given to persons of this description, a court of justice is converted into exactly the same sort of place, as the shop of a baker would be, who having ranged his loaves along his window in goodly show to invite customers, 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 unprejudiced imagination, the alliance between 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 predatory than any of those that are called houses of ill fame, the judge in his robes presenting to unsuspecting passengers 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 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 inveigled in, as well as the stoutest dragged in, by the exalted and commissioned 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 beforehand whether 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 submit 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 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 preposterous. 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 penal 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 repulsive force is apt to be much stronger. Reward is subsequent, distant, uncertain, and dependent upon success. Trouble, expense, and odium, are certain and precedent.†
In favour of this species of imposition, I have seen two arguments produced.
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 incontrovertible: 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 inquiring into, in any country where this tax was imposed. It certainly extends 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 enjoyment of the benefit: the security which other people enjoy for nothing, without interruption, and every moment of their lives, they who are so unfortunate as to be obliged to go to law for it, are forced to purchase at an expense of time and trouble, in addition to what pecuniary expense may be naturally unavoidable. Meantime, which is of most value?—which most worth paying for?—a possession thus cruelly disturbed, or the same possession free from all disturbance? So far then from being made thus wantonly to pay an extra price, a man who stands in this unfortunate predicament, ought rather to receive an indemnification at the public expense for his time and trouble; and the danger of insidious or collusive contests, in the view of obtaining such an indemnity, 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 sadness, as war has been to litigation in the way of pleasantry. The suitor is the forlorn hope in this forensic warfare. 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 inhabitants of the frontier and force them not only to serve for nothing, but to defray of themselves the whole expenditure of the war.
What in our times is become inveterate practice, is stigmatized as a species of iniquity without a precedent, 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, “I 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 from ambiguity. It is used sometimes 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 expresses 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 litigation would be neither more nor less than an avowed desire of denying justice.
In a bad sense again, the word is used on two different occasions; where the suit, whatever be the importance of the matter in dispute, is on the part of the person spoken of as maintaining it, a groundless one: and where the suit, however well-grounded on his part in point of title, is on account of the supposed unimportance of the matter in dispute, deemed a frivolous, 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 upon the situation of the plaintiff, as being 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 malitia, meaning consciousness of misdoing, and in this particular case mala fides, consciousness of the groundlessness of the action or defence—consciousness of the want of merits.
Where merits are wanting, but 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 operate to the prevention of groundless litigation at the same time. Prevent him who is in the right from instituting 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 they then any peculiar tendency to operate as a check to litigation, when it is not only groundless, but accompanied with a consciousness of its being so?—to malicious, or as it might with more propriety be termed, anti-conscientious litigation? On the contrary, their direct tendency and sure effect is to promote 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 proceedings are attended with expense, the heavier that expense, the greater of 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 defendant who was conscious that the demand 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 doing; he would lose the strongest incentive he has to make the attempt. A defendant who means not to do justice unless compelled, and who knows that the plaintiff cannot compel him without having advanced a certain sum; such a defendant, if he thinks his adversary cannot raise that sum, will persevere in refusal till a suit is commenced, and in litigation afterwards.
Whether they make the litigation, or whether they find it ready made, they show most favour to the side on which anti-conscientious litigation is most likely to be found. By attaching on the commencement of the suit, they bear hardest upon the plaintiff, or him who, if they would have suffered 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 laws are thus far the sole cause—setting out of the question the imperfections 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 instituting 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 expense 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 demand 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 before, the rare and criminal enterprise 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 temporary difficulty or inconvenience of satisfying 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 advantage to conscious guilt, on whichever side it is found; and that advantage 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 everybody, better that ten criminals should escape, than one innocent 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 expedient of procedure, the effect of which were to cause ten innocent persons 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 frivolous one. No wrong that I know of can be a trivial one, which to him to whom it is done appears a serious one, serious to such a degree, as to make it worth his while to demand 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 contradiction 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 encouragement to repetition, and its effects in the way of example. I know of no wrong so slight, that by multiplication 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, 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 susceptible of abuse.
In pecuniary cases, the smaller the sum in dispute, the less reserve is used in branding the conduct of the parties with the charge of litigation, of which, in such cases the reproach is apt to fall principally, if not exclusively, 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 £60,000 a-year. Fifteen pounds a-year is as 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 dispute to his own feelings, that is, its ratio to his 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 parties, 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 importance; an object of which a tenth or a twentieth part, or less, might be of importance 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 altogether trifling; an object by no means 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 Bedford, than a single shilling (viz. than a thousandth part of £50) to many a man, in truth to probably the majority of men in the kingdom. It is therefore more unjust, more tyrannical, 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 Marlborough or Bedford, to the amount of £50. The legislator who, on the plea of checking litigation, 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 completely as it is possible to refuse it.
That all men should have equal rights, not only would be politically pernicious, but is naturally impossible: but I hope this will not be said of equal justice.
Trivial causes require no such factitious checks: to such causes were all expenses struck off that can be struck off, there are natural checks in abundance, 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 render the act of commencing the litigation blameable, the blame is never so great on the side of the party most favoured by the tax, as on the side of the party most oppressed by it. The party most oppressed is the complainant—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 satisfaction 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 he 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 party, without rewarding the still greater misconduct of the other. If the tax applies a check where there is blame, it affords protection and encouragement 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 remedy against litigation is the instrument. 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 consumption of his time.
The rich man, the man who has time and money at command, he surely, if any, is the man to consume it litigiously and frivolously. No wonder however, if to a superficial glance, the poor should appear more litigious than he. 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 anything 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, not five years afterwards, (9 & 10 W. III. 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.* 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.†
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 everything 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 blameable; and where it is blameable, there is a wide difference whether it is accompanied with temerity only, or with consciousness of its own injustice. The countenance shown 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.‡
Justice shall be denied to no man, justice shall be sold to no man, says the first of statutes, Magna Charta. How is it under these later ones?—Denied, as we have seen, to nine-tenths of the people, sold to the other tenth at an unconscionable 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 anybody it would be nonsense. But after all it must be acknowledged, to be in some degree unfortunate, as well as altogether singular, that, of an instrument deemed the foundation of all liberty, and magnified 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 under foot, without remorse or reclamation.*
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 shown 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: litigation which, where it stands for mischief, is the very mischief which the 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 incurious 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 nowhere 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 ability, 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-duties. Thinking men look to consequences; they look to the feelings of the individuals affected: acting men look to the stamp: taxes on justice, taxes on property, taxes on consumption, are accordingly one and the same object to the optics of finance. Stamp-duties too have another most convenient property: they execute themselves, and law-taxes beyond all others: in short, they exclude all smuggling.† They heap distress indeed upon distress; 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 inconsiderable 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 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 whether, when it does fall, it will press upon him most, or upon his adversary. He knows not what it will amount to: he has no data from which to calculate 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 object on which investigation would be thrown away, as comprehension is impossible. 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 complaint? Before the thunder-bolt is fallen it would be too soon—when fallen, it is too late. Shopkeepers, tobacconists, glovers, are compact bodies—they can arm counsel—they come in force to the House of Commons. Suitors for justice have no common cause, and scarce a common name—they are everybody and nobody—their business being everybody’s is nobody’s. Who are suitors? 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 a repugnant interest: to crush the injured, is to befriend the injurer.
May not ignorance, with regard to the quantum and the source of the grievance, have contributed something to patience? Unable to pierce the veil of darkness that guards from vulgar eyes the avenues of justice, men know not how much of the difficulty 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 natural, it may be all inevitable and incurable, and at any rate it may be no more the fault of lawyers or law-makers, than gout and stone are of physicians. Happy ignorance! if blindness 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 everything else, is as it should be. The expense, the delay, and all the other grievances, which activity has heaped up, or negligence suffered to accumulate, are the prices which, according to Montesquieu, we must be content to pay for liberty and justice. A penny is the price men pay for a peeny loaf: therefore why not twopence? and, if threepence, 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 contributed something, if not to the imposition, at least to the acquiescence? It is the wealthy alone, that either by fortune, situation, education, intelligence, 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 indemnification for the wealth they take from 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 generous pride of abstaining from the wrong which it is in our power to do; advantages such as these, are too precious not to be grasped at with avidity by human weakness: and, as in a country of political liberty, and under a system of justice in other respects impartial, they can only be obtained by a blind and indirect route such as this, the inconvenience of travelling in it, finds on the part of those who are well equipped for it, the more patient an acquiescence.
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 another. The other obstacles by which the avenues to justice have been blocked up, constitute a separate head of abuse, from which I gladly turn aside, as being foreign to the present purpose. Take off law taxes altogether, the number of those to whom justice will still remain inaccessible, would still, it must be confessed, be but too great. It would however not be so great, as it is at present under the pressure of those taxes. Though you could not tell exactly to how many you would open the doors of justice, you might be sure you opened them to some. Though you would still leave the burthen but too heavy, you would at any rate make it proportionably more supportable.
If by taking off these taxes, you reduced the expense of a common action from £25 to £20, you might open the door, suppose, to one in five of those against whom it is shut at present. Even this would be something: at any rate whatever were the remaining quantum of abuse, which you still suffered to subsist, you would have the consolation at least of not being actively instrumental in producing it. To reform in toto a system of procedure is a work of time and difficulty, and would require a rare union of legal knowledge with genius:—repealing a tax may require discernment, candour, philanthropy, and fortitude,—but it is a work of no difficulty, requires no extraordinary measure of science, nor even so much time as the imposing of one.
But by whatever plea the continuance of the subsisting taxes of this kind may be apologized for, nothing can be said in favour of any new addition to the burthen. The subsisting ones, it may be said, have been acquiesced in, and men are used to them: in this respect at least they have the advantage of any new ones which could be substituted in the room of them. But even this immoral plea, which puts bad and good upon a level, effacing all distinction but that between established and not established, even this faint plea is mute against any augmentation of this worst of evils.
To conclude: either I am much mistaken, or it has been proved,—that a law tax is the worst of all taxes, actual or possible:—that for the most part it is a denial of justice, that at the best, it is a tax upon distress:—that it lays the burthen, not where there is most, but where there is least, benefit:—that it co-operates with every injury, and with every crime:—that the persons on whom it bears hardest, are those on whom a burthen of any kind lies heaviest, and that they compose the great majority of the people:—that so far from being a check, it is an encouragement to litigation: and that it operates in direct breach of Magna Charta, that venerable monument, commonly regarded as the foundation of English liberty.
The statesman who cares not what mischief he does, so he does it without disturbance, may lay on law-taxes without end: he who makes it a matter of conscience to abstain from mischief will abstain from adding to them: he whose ambition it is to extirpate mischief, will repeal them.*
General error makes law, says a maxim in use among lawyers. It makes at any rate an apology for law: but when the error is pointed out, the apology is gone.
Mem.—Anno, 1796. At a dinner at Mr. Morton Pitt’s, in Arlington Street, Mr. Rose, then secretary of the treasury, in the presence of Mr. William Pitt, (then minister) took me aside, and told me that they had read my pamphlet on Law-Taxes; that the reasons against them were unanswerable, and it was determined there should be no more of them.
Anno 1804, July 10, 12, 14, 18.—This being in the number of Mr. Addington’s taxes, Mr. Pitt, upon returning to office, took up all those taxes in the lump. On the above days, this tax was opposed in the House of Commons: and Mr. Wyndham, according to the report in the Times, on one of those days, spoke of this pamphlet as containing complete information on the subject; observing at the same time, that it was out of print. On behalf of administration, nothing like an answer to any of the objections was attempted: only the Attorney-General (Percival) said, that the addition proposed to those taxes, was no more than equal to the depreciation of money.
Mr. Addington, before this, had recourse to the tax on medicine here spoken of, (page 575.) So that, in the course of his short administration, if the representation here given be correct, he had had the misfortune to find out and impose the two worst species of taxation possible. Compare this with Denmark, and its courts of Natural Procedure, called Reconciliation Courts.
26th February 1816.—Unalleviated by any adequate hope of use, too painful would be the task, of hunting out, and holding up to view, the subsequent additions, which this worst of oppressions has, in this interval of twenty years, been receiving.
Money, it is said, must be had, and no other taxes can be found. The justification being conclusive, the tax receives its increase: next year, from the same hand, flow others in abundance.
Grievous enough is the income-tax, called, lest it should be thought to be what it is, the property-tax. Grievous that tax is, whatever be its name; yet, sum for sum, compared with this tax, it is a blessing. Instead of 10 per cent, suppose it 80 per cent. Less bad would it be to add yet another 10 per cent. than a tax to an equal amount upon justice.
Grievous have been the additions, so lately and repeatedly made, to the taxes on conveyances and agreements. Extensive the prohibitory part of the effect, though the pressure, confined as usual to the poor, i. e. the great majority of the community, who have none to speak for them, is scarcely complained of by the rich. Yet, were all law-taxes taken off, and the amount thrown upon conveyances and agreements, this—even this—would in reality be an indulgence.
Whether the oppression be more or less grievous, is never worth a thought. Will it be submitted to?—This is the only question. Charity is kicked out of doors. Hope is fled—faith and piety remain, and atone for everything.
For a list of about twenty-eight other sources of factitious delay, vexation, and expense, and thence of denial of justice, produced by the judges of former times, for the augmentation of iawyers’ profit, their own included,—together with a list and summary account of the devices by which these burthens have been imposed, and by which technical stands distinguished from natural procedure,—See by the same author, Scotch Reform, &c. printed for Ridgway, Piccadilly. [Vol. V.]
ADDITION by a LEARNED FRIEND.
In the Court of Chancery, two cases have recently occurred, which may serve as an illustration of the extent in which the taxes upon law-proceedings may operate as a denial of justice. In one case, Roe v. Gudgeon, the defendant, in his answer to the plaintiff’s bill, submitted that he ought not to be compelled to set out certain accounts which had been required by the bill, as the expense of taking what is called an office copy of them,—a necessary preliminary to any further proceeding on the part of the plaintiff in the cause,—would amount to the sum of £29,000: an expense almost wholly arising from the stamps on the paper, on which the office copy of the answer is compulsorily made. In this case the court determined, that it was not necessary these accounts should be set out: but in coming to this conclusion, how far the court was determined by the nature of the particular case, or by the magnitude of the expense that would thus be occasioned;—or whether if, without any such objection, the defendant had actually set out these accounts, the plaintiff could have been relieved from pursuing the regular mode of procuring a copy of them, and thus incurring the above expense;—or whether, if the expense had been instead of £29,000, only 28 or 27 thousand pounds, such an objection would have been listened to;—it is extremely difficult to say.
The other case alluded to is one in which, from peculiar circumstances, it is not thought proper to mention the names of the parties. It is optional with a man to be a plaintiff in a cause,—it is not altogether so optional with him to be a defendant. The preceding case shows that it is not always safe for a man to become a plaintiff, without £28,000, at least in his pocket to begin with, over and above what is necessary for his maintenance.—The following case shows that a man may not be always able to resist a demand, however unjust it may be, without being able to support an outlay of at least £800. In the case in question, the writer of this has been assured,—and from authority, which he has peculiar reason for relying upon,—that the expense of merely putting in an answer by one of the defendants to a bill in equity, amounted to the above sum of £800: what part of this expense was occasioned by the tax on law-proceedings cannot be accurately ascertained, but it assuredly constituted a very considerable proportion of that sum.
SUPPLY WITHOUT BURDEN; OR ESCHEAT VICE TAXATION:
(printed in 1793, and first published 1795.)
[* ]The MSS. from which the following work is taken, bear date from 21st to 24th June 1822, and appear to have been prepared for the press under the author’s superintendence. As the project brings out a practical illustration of the principles inculcated in the Essays on International Law, it is conceived that the account of it will form a suitable appendix to that work.
[* ]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 burden 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 lawsuit?—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 anything like co-extensive with the grievance.
[* ]In England, the expense of carrying through a common action, cannot be less than about £24 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 £8 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, £20 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.
[† ]This species of tax would stand absolutely alone in point of depravity, were it not for the tax on drugs, as far as it extends to those used in medicine. This, as being also a tax upon distress, 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 £24, of which a good part in taxes: but to be admitted to buy a shilling’s worth of medicine for a shilling, it does not cost you threepence. Hospitals for the sick are not uncommon: there are none for harassed and impoverished suitors. There are Lady Bountifuls 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 apothecary, and supply a poor man with as many pounds worth of latitats and pleas, as he must have to recover a shilling. A man cannot, as we have seen, insure himself against lawsuits: but a man may insure himself, and many thousands actually do insure themselves against sickness. But these reliefs are neither certain nor general: and after all, a tax 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.
[* ]Dr. Adam Smith, Wealth of Nations.
[* ]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.
[‡ ]The distinction between temerity and consciousness of blame, a distinction pervading human 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 Roman law. Malice, the term by which English lawyers seem in some instances to have had in view the expressing consciousness of blame, presents a wrong idea, since in common language it implies hatred, an affection which in many instances of conscious guilt, may be altogether wanting:—instance, offences of mere rapacity, such as theft, robbery, and homicide for lucre.
[* ]Let us not for the purpose of any argument, give rise or countenance to injurious imputations. 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 certainly no comparison: but in point of political effect, it may not be altogether easy in every part, of the parallel, to say which mode of abuse a most extensively pernicious.
[† ]Law paper might be forged: but the difficulty would be to issue it.
[* ]The duties on nearly every proceeding, at law or in equity were repealed by the 5 Geo. IV. c. 41. The duties which were left were those upon proceedings, which were generally used for and operated as conveyances. By the subsequent alterations in the laws relating to fines and recoveries, these latter duties have become extinct also.—Ed.