Front Page Titles (by Subject) SECTION II.: REMUNERATION. - The Works of Jeremy Bentham, vol. 3
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SECTION II.: REMUNERATION. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 3 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 3.
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Art. 1. Attached to this office will be a salary of [NA] a-year: payable at the same time, and in the same manner, as that of the Lord Chief Justice of the King’s Bench.
Art. 1*.—i. As to quantity of remuneration, note here a most material difference between the case of the experimental Dispatch Court and the ultimately-proposed Local Judicatories, with a view to which, and for the sake of which, the experiment is hereby intended to be made.
ii. In the Dispatch Court, the remuneration must be upon the present high scale; namely, for the purpose of engaging men, in whom, in consideration of the extent of their practice, and the height of their reputation, the electors may be supposed to repose their confidence.
iii. In the system of Local Judicatories, no such rate of payment could be afforded; no such rate of payment could be requisite. No need (it will be seen) would there be for buying off lawyers from the highest ranks of the professional class.
iv. So much for what, by the friends to reform, would be proposed to be done. Now, as to the course that would be taken, in opposition, by corruptionists in office and in power:—as such, enemies to reform.
v. By them would be stated, as altogether indispensable, for every one of these Local Judicatories, a salary upon the present principle and scale of excess; the amount of which would of course be maximized:—from the persuasion, that from the magnitude thus alleged to be necessary, one or other of two advantages would be expected to be reaped:—1. The institution might be rejected altogether, in consideration of the insupportability of the expense: or, 2. If it were carried, there would come the profit by the patronage—a profit rising in proportion to the excess.
vi. Of the inferences deducible from the present fundamental axiom; namely, aptitude is as opulence—a rule not only acted upon, but avowed—the utmost possible advantage would of course be made. Give no more than £2000 a-year to the Judge of each Local Judicatory; a very inadequate degree of aptitude you must be contented with: give £4000 a-year, so much the better. But, to make any tolerable approach to perfection, you must give the £10,000 given at present.
Art. 2. Of no person, on any account, will the Judge of the Dispatch Court receive, under the name of a fee, or under any other name, any money or money’s worth, on the occasion or in consideration of any service rendered or expected to be rendered by him as such, by or in the execution of the power belonging to such his office. Acceptance of any such benefit by him, by his own or any other hand, to his use, will be deemed extortion, and as such punished. For endeavour and design respectively, punishment correspondent.
Art. 2*. Receipt of fees, why inhibited to the Judge?
i. In the case of a Judge, as in that of every other functionary, and every human being, good behaviour depends on the conformity of interest with duty.
ii. By this mode of remuneration, his interest would be placed in a state of irreconcilable opposition to his duty: and (as will be seen) the very design of the institution frustrated.
iii. Of such opposition, in the situation in question, as well as every other, so long as man is man, sacrifice of public duty to personal and other particular interests, as far as may be with safety, is that which, at the hands of the vast majority of persons invested with political power, is, on each occasion, the most probable result, and that on the expectation of which all arrangements should accordingly be grounded.
iv. Under the name of a fee, or any other name, to authorize a Judge to receive money, money’s worth, or benefit in any shape, on the occasion of any sort of operation performed by him, or written instrument authorized by him, is, in other words, to give him a premium, or say a bounty, on the production of expense:—a bounty, the amount of which increases with the number of those same operations performed, and those same instruments so produced by him.
v. So, to give him a fee, or other benefit proportioned to the length of any such written instrument, is—to give him a bounty on the length of every such written instrument so produced by him; and thus also a bounty upon the expense.
vi. By these arrangements, it is rendered his interest to swell to the utmost the expense of every suit to the suitor. By this interest is supplied the adequate motive; by his office, and by the power belonging to it, the adequate means; and be the effect what it may, wherever motive and means, both adequate, unite in the same person, the effect follows of course.
vii. The act of employing, in the exaction of money, or money’s worth, to an undue amount, to the power-holder’s own use, the power derived from an office, is professed to be dealt with as a crime; it is termed extortion; and is taken for the subject-matter of an inhibition, or say prohibition, backed by punishment; authorizing a Judge thus to extract it—and to permit is to authorize—is therefore to authorize extortion; to authorize that which at the same time is professed to be constituted a crime. Here, then, against inhibition on the one hand, is express permission, and thereby encouragement, on the other. Unhappily, the inhibition is, in this case, but nominal, inoperative, ineffective, illusory, falsely pretended, hypocritical: the permission—the encouragement—the inducement—is efficient, effective, and effectual.
viii. A bounty on extortion operates as a penalty on abstinence from extortion; for, a bounty on any positive act operates as a penalty on the correspondent and opposite negative act. So much for the factitious expense.
ix. By the same means by which such needless expense is produced, needless delay is moreover produced. For, to the number of judicial operations increase cannot be given without increase given to the time allotted for the performance of them: and over and above the time necessary for the letting in the known and constantly accruing sources of delay, accident will, in proportion, add to the length of such time, by giving birth to incidental, and ulterior, efficient and effective causes of that same grievance.
x. Moreover, with the length of every such written instrument, increases the length of the delay producible and produced in respect of the framing it, examining it, and making answer to it.
xi. Here, then, in addition to the penalty on abstinence from extortion, is produced by these same fees, a penalty on dispatch.
xii. Be the article what it may, if a price be set upon it, and it be delivered to those alone who pay the price, it is sold—sold to all persons to whom on payment of that price it is delivered.
xiii. Moreover, it is denied to all persons to whom it is not thus sold.
xiv. How it is, that by this mode of remuneration, delivery of justice is delayed, has been shown above, and delay of justice is of itself denial of justice, so long as it lasts.
xv. Thus it is, that by every Judge, by whom, for acting as such, a fee is demanded, justice is, on the occasion of each demand, either sold or denied: sold, if the money be received; denied, if it be not received.
xvi. Between the number of those to whom justice is sold, and the number of those to whom it is denied, the proportion will of course in each suit be rendered greater or less by the amount of the aggregate of the fees so demanded on the occasion of that same suit.
xvii. The sort of suits which are here in question, are those of which the Equity Courts take cognizance. Of the proportion between the number of those persons to whom by the fees thus demanded it is sold, and the number of those to whom it is utterly denied, the stock of data as yet accessible, affords not any tolerably correct means of forming an estimate; that the number of those to whom it is utterly denied, is several thousand times as great as the number of those to whom it is sold, may, however, be asserted without much fear of error.
xviii. Be the article what it may, if the possession of it would be more useful to a man than the money, the denial of it to him is productive of greater suffering to him, and a worse injury to him, than the sale would be: those, therefore, to whom what is called justice is sold, are, if it be justice, the favoured few.
xix. All this while, of the aggregate of the evil produced by fees allowed to be taken by a Judge to his own use, no more than a small part is it that is ever presented to view by the words which give expression to it in the law: for, by the Judge, no operation is performed without being accompanied with correspondent operations performed by other persons, in whose instance remuneration is no less necessary than in the instance of the Judge. Thus it is, that for the purpose, and with the effect of producing a comparatively small quantity of enjoyment to one man in the situation of Judge, suffering in vast and immeasurable quantity is produced on the part of a vast and immeasurable multitude of other persons in the condition of suitors.
xx. Of a law requiring fees to be paid to Judges, thus maleficent would be the effect, even if the aggregate amount of those fees could be and were fixed or limited—limited by the law itself, in such a manner as not to be capable of being by any act of the Judge, or any person other than those appointed by the legislature, made to receive increase beyond that limit.
xxi. But this is what never has been the state of things, nor ever can be. Of the sorts of occasions on which, in the sorts of suits in question, the fee is allowed to be taken, the number may be limited: so of the sorts of operations on those several occasions performed, and of the sorts of written instruments* on those several occasions issued. But in the instance of an individual suit of any sort individually taken, for the legislator to apply limitation to the number of the operations, or the instruments, or to the length of any instrument, unless where it is prescribed in terminis, is not possible. Do the legislator what he will, to quantities it will remain in the power of the Judge to make his own additions.
xxii. Fixation, limitation, regulation of fees allowed to be taken by Judges and their subordinates (not to speak of functionaries in other departments)—all these are but so many covert modes of giving maximization to the quantity of money exigible by them, and thereby to the quantity of extortion practised, and corruption kept infused, by force of law.
xxiii. What if a statute were passed, establishing a pecuniary qualification for enabling a man to apply for justice to an Equity Court, and the like for enabling him to defend himself against any application so made?—say a hundred a-year in a certain shape, as in the case of the qualification of a Justice of the Peace, or three hundred a-year, as in the case of a Member of Parliament? What an outcry would not such a law raise? This would be, in other words, establishing a prohibition, or say inhibition, inhibiting every man not so qualified from making any such application, or any such defence.
xxiv. Men govern others—men suffer others to govern them—by signs, without looking further—without looking to things signified. Many times the qualification sufficient to enable a man to act as Justice of Peace would not suffice to enable a man to make a well-grounded application to an Equity Court for what it deals out under the name of justice, or to defend himself against an utterly groundless and unjust one. Not it, indeed. Here then is prohibition put upon application for justice, and upon self-defence against injustice.
xxv. Thus would gnats be strained at by those by whom camels are swallowed. Much more effective is this virtual and undeclared prohibition, than would be even a prohibition operating by a declared penalty to the same amount: for by the virtual prohibition, the penal effect is made to take place, without the uncertainty of success, and the certainty of that expense, delay, and vexation, whatsoever it be, which have place as often as effect is endeavoured to be given to a declared penalty.
xxvi. So in the case of the correspondent remuneration. In the actual state of things, the manufacturer of the expense and delay, who pays himself for what he himself does, has nobody but himself to apply to, in order to obtain that which he so makes: in the case of a declaredly remunerating law, he would have to make application to others—that same application, loaded with the uncertainty as to success, and in case of contestation, the certainty as to delay, expense, and vexation, as in the case of the probibitory and penal law, as above.
xxvii. Taking money, or money’s worth, in remuneration for operations performed by a Judge, on the occasion and by the means of exercise given by him to the powers of his office, is, for shortness, termed selling justice; it is the same thing in other words.
xxviii. Indefinitely numerous are the forms of words, by which, in the hands of the legislator, the effects of bounty and penalty—thence of production and prevention—are capable of being produced:—a form more effective than the above the language does not furnish. With as much reason might it be said, that when the legislator imposes a tax, he does not mean it should be paid, as that when he allows fees to be taken by a Judge, he does not intend that extortion, corruption, factitious expense, and factitious delay—all to a boundless amount, with the correspondent suffering, should have place.*
xxix. To authorize a Judge to exact, in this manner, to an amount thus unlimited, for his own remuneration, is to authorize him to impose taxes to the same unlimited amount, and put the proceeds into his own pocket.
xxx. Not less defensible would be a law authorizing the head of the army to pay himself what he pleased for so being, than is that state of the law, by which the head of the law is authorized so to do.
xxxi. The head of the army would not choose among those who are already in a state of impoverishment and affliction, those on whom he would levy his contributions; the head of the law does make this cruel choice.
xxxii. Were the head of the army to take, in that way, £10,000 a-year for himself, he would not take more than £10,000 from those on whom he levied the money. The head of the law, who takes £10,000 a-year for himself in the way of fees, does take (as above) a vast many times as much as £10,000 from those on whom he levies such his money.†
xxxiii. A tax so called is (generally speaking) a tax upon prosperity: a tax upon the injured suitor, or upon the injured man, who would have been suitor, but who for want of money cannot pay the tax, is a tax upon adversity.
xxxiv. The legislator who imposes taxes on litis-contestation, under the name of taxes, establishes a cruel grievance: the legislator who imposes taxes under the name of fees, establishes a still more cruel grievance. His parallel is only to be found in the surgeon who should drag a patient out of a sick-bed when suffering under gout, rheumatism, or stone, and flog him for the purpose of obtaining payment for dressing his sores.
xxxv. All this, notwithstanding the practice of employing this mode of remuneration in the case of Judges in general, and thereby in the case of an Equity Court Judge in particular, has been defended and recommended for continuance: sole ground of defence, the exertion of which this mode of remuneration is alleged to be productive. Answers to this allegation, these:—
xxxvi.—1. The alleged advantage, supposing it reaped, would be reaped by these persons alone, to whom by the judges so remunerated, what is administered under the name of justice is, as above, sold: it would not be reaped by any of those to whom that same boon is utterly denied; and these, it has been seen, are hundreds of times or thousands of times as numerous as those. Here, then, is the most favourite supposition; here, then, is an advantage which is not worth a hundredth or a thousandth part of the price paid for it. Lawyers, in all they say—in all they write—assume justice to be accessible—universally accessible: whereas inaccessibility is the rule, accessibility only the exception.
xxxvii.—2. But in no one instance can the extra-exertion in question be in any degree actually produced by any such fee; nor, consequently, the supposed advantage reaped. If the extra-exertion were made, the occasions on which it was made, would be those on which the Judge is occupied in hearing vivâ voce pleadings, or hearing or reading papers belonging to the suit; and on those same occasions, to be productive of that effect, it would be necessary that with the degree of the exertion, the amount of the fee, or the probability of the Judge receiving it, should receive increase. But on no such occasion has any such increase of remuneration in any instance been so received by him: nor can it be—the operations he receives his fee for, are operations performed by other persons. What is more—in no instance, by the alleged cause—namely, the receipt of the fee—can the alleged effect—namely, the extra-exertion—be produced; for, to be produced, it would be necessary that the exertion should increase with the fee, which is impossible.
xxxviii.—3. That which is thus impossible to be done by means of the instrument, the use of which is thus recommended, may be done to a certainty by other means: by other means which require no extra cost. It is produced in so far as on his part assiduity is produced, and publicity, as to that which after hearing and seeing what is proper, he says or writes, has place. The greater the respectability and the number of the persons to whose minds he expects that what he thus utters will be applied, the stronger will be his exertion to save himself from that disapprobation which will attach itself to his conduct in proportion as it is blameworthy, and to obtain that approbation which will attach itself to his conduct in proportion as it is praise worthy.
xxxix. Conclusion, as above announced,—by the allowance of fees to the Judge, the design of the Dispatch Court would in a proportionable degree be frustrated.*
Art. 3. To every subordinate of the Judge applies art. 2, as well as to the Judge himself.
Art. 3*. Receipt of fees, why interdicted to all subordinate judicial officers?
i. Because, were not this same extent given to the interdiction in this case, the interdiction to the Judge would be without effect.
ii. These several functionaries, in their several situations, being so many instruments in the hand of the Judge—instruments, without which it would not be in his power to produce the effects for the production of which he is located,—it is matter of necessity, that upon his will should depend their existence in their several situations. That by the Judge each such subordinate should, in case of inaptitude sufficiently proved, be dislocable, and accordingly dislocated, is therefore matter of necessity.
iii. And that on each vacancy, the new functionary should, by the Judge in being, be located, is desirable; he having an interest greater than any other individual has in the making of an apt choice.
iv. But, by every fee received by any such subordinate of his, the effect produced on the mind of the Judge is in kind the same as if received by himself to his own use. The relation which in this case has place between the situation of the Judge and that of the subordinate, is that which has place between locator and locatee; in ecclesiastical language, between patron and incumbent; in familiar language, between patron and protegé:—as the value of the subordinate situation increases and diminishes, so does that of the superordinate.
v. On the mind of the Judge, not only is the effect producible by the fee received by his subordinate the same in kind as if received by himself, but it may be so even in degree: and this, in the case of each one of a number of these subordinate offices and officers.
vi. Or even greater: as in the case in which the location is not in the way of sale, but in that of gift—and thus in outward show gratuitous, and to the locator unprofitable. For, suppose the Judge to have a son, to whom, out of his own money, he was about to make over an allowance of £500 a-year for his life: and a vacancy happening, in an office in the father’s gift, to which is attached a mass of emolument to that same amount, the Judge gives to his son this office, and thereby saves to himself the expenditure of this same part of his own income. In this case the patronage is worth even more than the incumbency: for, in the money-market phrase, the life of the son is of course worth more than the life of the father: it may be worth several times as much.
vii. But what, under the fee-gathering system, may happen but too easily, is—that so great may be the number and value of the subordinate offices in the gift of one and the same patron, that, in comparison with the value of the patronage attached to it, the value of the remuneration attached to the superordinate office may be in any degree inferior.
viii. Be the business what it may, in so far as relish for it is a cause of aptitude for it, purchase by the locatee is presumptive proof of his aptitude; the greater the price, the stronger the presumption:—and so, on the other hand, of inaptitude,—comparative at least, in comparison with purchase,—is the presumption afforded by acceptance from gift. Be the purchaser’s aversion to the business ever so strong, and his inaptitude ever so flagrant, if pay is attached to it, a man who has no other means of subsistence, office and pay together, will accept of it rather than starve. Rather than starve, the most arrant coward would accept gladly not only the commission of a military officer, but even the situation of a private; while, had he any other means of subsistence, not a penny for it would he give.*
Art. 4. Correspondent to the length of the Judge’s term of service, will of course, in respect of duration, be the value of his remuneration. Whatever be the limit prescribed to the duration of this Act, the same will, in course, be prescribed to the continuance of the Judge in this his office, and thence to that of his salary. For the duration given to this Act, see below.
Art. 4*. The institution—why thus made temporary?—Answer: That it may be seen that only in the event of its affording assurance of preponderant benefit, will the community be burthened with it, and the established course of regular procedure be subjected to that interruption and disturbance, which, after all endeavours used to minimize it, cannot but in some degree have place.
Art. 5. Should this act not receive continuation, it will be for the consideration of Parliament whether to grant to the Judge of the Dispatch Court and his subordinates, any and what pensions of retreat.
Art. 5*. Of the office of the Judge, with the remuneration annexed, the duration, why thus made temporary, and no pension of retreat secured?
i. Because by this means the force of the motives to exertion and manifestation of appropriate aptitude in all its branches, in so far as depends upon the will, is maximized. Were a pension of retreat made secure to him, the exertion of the Judge might slacken, if in his natural disposition indolence, or a preference for other occupation, had place.
ii. True it is, that if, by the uncertainty thus attached to the continuance of the remuneration, an individual more apt than any other who could be found were deterred from the acceptance of the office, here would be a bad effect to set against the good produced by the saving in expense. But, no such undesirable consequence seems likely to have place. So manifest, and in case of success so vast, will be the service done to the community in respect of justice, that, on the supposition, though it were but a moderate degree of appropriate aptitude on the part of the benemeritant functionary (moral aptitude in the shape of sincerity included,) to any individual desirous of the situation, and feeling himself competent to it, the continuance and perpetuation of the institution could scarcely fail to present itself as indubitable. Families in such number rescued from absolute ruin! families so high in rank and opulence delivered from vexation and embarrassment! so quick the succession of the benefits thus conferred! scarce a day past without his beholding a fresh group of fortunate beings, beholding in him the author of their salvation! To crown the whole, the institution of the all-comprehensive and all-beneficent system of Local Judicatories, secured, and he the main instrument in the establishment of it! Considerations these, by which will naturally be inspired a degree of animation, much beyond any that could reasonably be looked for, in the situation of a Judge, serving with the same quantum of remuneration in the ordinary course of judicial service.
[* ]Written instruments.] Take, for example, affidavits, when evidence in that shape is required or admitted, as it is in all suits in the Superior Courts, and in particular in the Equity Courts. Immediately, or unimmediately, by his own hands, or by the intervention of others, the Judge receives (suppose) a profit proportioned to the number, or the lengthiness, or both, of the instruments of this sort admitted by him or called for by him. The motive he is determined by (suppose) is profit. But the motive he assigns, is of course the anxiety of his desire to come at the truth, for the purposes of justice: and, supposing the absence of his last-mentioned desire, by what means can any such absence be ever proved?
[* ]To bring to view the mutual equivalence or these locutions, belongs to a branch of art and science which may be termed Nomography. This again belongs to a branch of logic which has not yet been brought into notice, and which may be termed the Logic of the Will, in reference and contradistinction to the only branch of logic as yet designated by that name, and which may be termed the Logic of the Understanding. A treatise on Nomography will be found in the works of the author of these pages. [See ante, p. 233.]
[† ]Compared with these fee-gathering taxes, the tax called Ship-money, which constituted the proximate cause of the civil wars, styled the Grand Rebellion, was it not excusable, not to say justifiable?
[* ]The giving this shape to the remuneration allowed to Judges, had in its origin necessity for its excuse, not to say its justification. See this proposition demonstrated in the work intituled Petitions for Justice, Vol. V. The giving to it this same shape at present has no excuse—in this instance or in any other.
[* ]Manifold are the occasions on which, vast the extent to which, public money has been expended, on the substitution of location in the way of gift, to location in the way of sale: buying out, and thus, in pretence, extinguishing, the profit by patronage; in effect, leaving it in the same hands untouched: thus adding to the corruption-fund the whole of the price paid.—See “Indications respecting Lord Eldon,” Vol. V. p. 348.