Page:Works of Jeremy Bentham - 1843 - Volume 2.djvu/588

 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.