The Legal Observer,

DIGEST, AND JOURNAL OF JURISPRUDENCE.

SATURDAY, DECEMBER 11, 1847.

"Quod magis ad Nos

Pertinet, et nescire malum est, agitamus."

HORAT.

TAXES ON THE ADMINISTRATION a wrong. Why should he be taxed for doing

OF JUSTICE.

that which, for its own purposes, the State compels him to do. The claim of the State to institute courts, and to compel all litigants to enter their precincts, is absolute,—it is a claim made by the State in the assertion of its corporate superiority over any one of the individuals who compose it. To deny the authority of the State Courts is sedition: to resist their decrees rebellion. The State insists that it shall be so.

We do not mean to deny that the State has a good reason for insisting on its paramount authority in this manner. Without

FEES IN COURTS OF LAW AND EQUITY. THE first result of the labour of the committee of last Session, appointed by the House of Commons to inquire into the fees taken in the courts of law and equity, has just been published. The report itself is nothing. The fact that the parliament was about to break up when the taking of evidence terminated, sufficiently accounts for its defectiveness. But the materials for a report are there, and no one can exaggerate the existence of such an authority, men their importance. They make out a full would be in a constant state of confusion justification of the strong opinion we have and turbulence. Government exists for two for years entertained against the taking of purposes,-to maintain regularity and safety any fees from suitors for official business both of person and property among its transacted in the courts. It would be dif- subjects at home, and to protect both their ficult, indeed, to find any justification for persons and property abroad. By tacit conthe exaction of official fees in courts of vention, every man in a civilised State gives justice. The State claims the right to de- up his right to private warfare in his own cide all disputes between its subjects. For country and abroad, because, in each inthe sake of the public peace it will not allow stance, the State to which he belongs under4. to take the goods of Z. to satisfy a debt takes to do all that justice requires for his which Z. owes him. A. must come to a sake. Agovernment that did not attempt duly court of justice, and the officers of the court to discharge this undertaking would forfeit all must perform this task ;-the private man lawful claim to the obedience of its subjects, is not to be entrusted with the exercise of and society, in the country where such a an authority so likely in his hands to give case occurred, would be dissolved, and its rise to family feuds and local seditions. The elements must be reconstructed. By what State, therefore, claims this as its own ex- right is it that the State requires a man to clusive and incontestible right. Nay more, pay it for discharging this its first and most it punishes the subject who in any way infringes on its prerogative. The subject must become a suitor, if he desires to enforce a right, or to obtain compensation for

a Ante, vol. 26, p. 117, et passim. VOL. XXXV. No. 1,031.

imperative duty? So far as the protection of the subject when abroad is concerned, it makes no such claim upon his purse,-why should it do so in the case of his protection at home? If his ship was captured by a pirate in some distant sea, the government would

G

134

Taxes on the Administration of Justice.

not only not charge him the pay and pen- hope of justice. These fees have been mulsions of officers and crew, and the wear and tiplied in more modern times as the means tear of a State vessel, which happened to be of providing for hangers-on of the great, and on that distant sea and recaptured his ship, many offices exist, the needfulness or the usebut would actually go to the heavy expense fulness of which not the most astutely ingeniof sending out such a vessel to effect the re- ous man can pretend to discover. Indeed, capture, or at least to punish the pirates who in some cases, the acts required to be done had robbed him. Why should the State do in a court of justice, in order that fees may this without charge to the merchant, and be levied in respect of them, are in themyet charge with heavy expenses the same selves impediments in the way of a speedy, merchant who, to get back his property simple, and effective administration of the from a private wrong-doer at home, asks the law. We could give numerous proofs of assistance of a court of justice? What con- this. These acts afford no check against ceivable difference is there in principle be- fraud or injustice, and sometimes create so tween the two cases, that in the one, the much perplexity, that the interests of justice complaint of the individual should put the suffer, and serious wrong is perpetrated. State to a great expense without his being Let us see what an experienced practitioner individually taxed with one farthing of it, thinks of them. Mr. E. W. Field, an eminent while in the other, though the State incurs solicitor, and a gentleman in no way severely no additional charge from his individual act, opposed to fees or large official incomes, is his complaint should be made to entail on asked, (Q. 442,)—“Did not that system of him heavy official expenses, such as may taking out warrants [from the Master's make him pause before he determines to office] originate with the parties who used seek for justice, and almost ruin him should to take the fees?" Mr. Field answers:— he resolve on doing so. "The whole system, not of warrants merely, The defence of the present practice of de- but of the entire Chancery practice, origimanding official fees from the individual nated upon a plan which divided the fees suitor, cannot, in fact, be put upon the ground for the emolument of the officers in such a of reason or justice. No distinction exists in way as would be most likely to make the principle between the two cases we have de- officers do the work. The absurd cumbrousscribed. In each the private individual is ness of the practice, and its needless proentitled, as of right, in virtue of his general cesses were attributable to the origin you contributions to the support of the govern- allude to." No one acquainted with the ment, and of the obedience which he renders practice will deny the truth of this remark. to its authority, to obtain, free of cost, its The scandalous, because needless, expense interposition for his protection. And in of bills of revivor and supplement when any rendering that protection, the State gains one of numerous plaintiffs or defendants for itself dignity and power, it maintains happens to die, is attributable to this cause, its own supremacy, adds to the property and and so are many other things, both at law prosperity of the country, and consequently and in equity, which strike the suitor with to its own wealth and power, and secures the terror and the practitioner with regretful obedience of the subject by appearing to shame. It will be our task to go through give him due value for yielding it. The a catalogue of these vexations. We are of system which now exists is only tolerated the profession, and feel the deepest interest because it is old, not because it is either in its honour and prosperity. Both are inreasonable or just. Its origin was corrupt juriously affected by these fees of office. and tyrannical; its continuance is unwar- When so much is paid for what is needless, rantable. In ancient times, when chieftains little remains for what is needful. claimed the right to administer justice honest, arduous, anxious labours of atamong their tenants, it was soon found that torneys, barristers, and solicitors, are, in the establishment of officers added to the many instances, but ill remunerated, while dignity, strength, and safety of their chief, the official who does nothing but what is and offices were created to enable him at once to provide for hungry favourites and Lord Chief Justice Hale, in his golden rules to secure interested supporters. There is for a judge, expressly speaks of this shameful good reason to believe that fees of office first practice as existing in his day, and declares his arose from gratuities, given by rogues who intention not to be bribed directly by presents desired to do wrong with impunity, or by to himself nor indirectly by presents to his trembling suppliants, who, except through the favour of a great man's minion, had no

servants.

The

See his pamphlet on Compensation to the holders of abolished offices.

Taxes on the Administration of Justice.—Imprisonment of Small Debtors.

135

merely formal, who needs no professional will, probably, soon re-enter the house, and education, who has had no struggle for a can then devote himself to the official fees chance of success, and who neither knows demandable at common law. It is of adthe parties nor cares what may be the result vantage that the inquiry into each branch of of the suit, receives a large and a certain the question should be conducted by a genprofit. The Baconian axiom, that great tleman peculiarly acquainted with that pains require to be paid by great pleasures, branch. There is less liability to mistake, is in this way disregarded, if not reversed in smaller danger of unsatisfactory yet puzzling the law. The toiling practitioner suffers answers, and greater chances in favour of the pains; the calm, undisturbed, and un- the completeness and exactness of the inneeded official enjoys the pleasures. Let quiry and of a happy result to be anticius not be supposed to object to officials as pated from it. The period for maksuch. They are of us and ours. Where ing a court of justice a source of profit they have real duties to perform, and where to the governing power has gone by. The their offices have been created to advance administration of justice must be purified the interests of justice, no one more re- from the blot which that system has joices to see them, no one less grudges them marked upon it, and every trace of that their honourable emoluments. But their ancient practice which originated in the emoluments should come from the public corruption of the judges, and extended from funds and not from the individual taxation them to the officers of their courts, must of the unfortunate suitor. In some in- be removed. The officers, like the judges, stances, we would increase their numbers perform a duty for the public, and must be and not be niggardly of their pay. And the paid by the public. All the property in the people at large are of our opinion. Where empire receives an increased value from the work is required to be done, John Bull never security which the protection of the law denies that it ought to be done well and to affords to it, and the individual who has to be liberally remunerated. But he does exemplify the value of that protection by object to offices created merely to tax him becoming a suitor in the courts is rather to for the benefit of favoured sinecurists. He be pitied than taxed for his misfortune. carries his sound commercial ideas into poli- The rest of the community receives the tics and law, and while properly estimating benefit of his trouble and anxiety. The degood services, is little inclined to favour de- cision in the case of A. v. Z. saves the mands on his purse for that which is need- other letters of the alphabet from incurring less and useless. It is to be feared that the the risk and annoyance of a lawsuit for a evidence before this committee shows that similar cause, and the public reap a solid addemands, not merely needless and useless, vantage from the sufferings of the litigants. but actually injurious, are sometimes made It is too much to impose on them a double upon him. It is against these that the taxation as subjects and as litigants, when country protests; it is against these that their neighbours who gain the benefit of the interests of the profession, as well as of their litigation are taxed in only one of the public, are ranged; and the resolution those characters.

IMPRISONMENT OF SMALL

DEBTORS.

for their removal will not be rendered the less strong by the fact, that they exist not merely in defiance of the general interest of the public, but to the oppression of the individual suitor,-that they operate to make THE Committee of the Society for effectthe administration of justice cumbrous, slow, ing an Amendment of the Laws relative and expensive, and, in many instances, to Bankruptcy and Insolvency, point in prevent the injured man from drinking at its their report with evident satisfaction, and fountain, or turn what ought to be its pure, as a great achievement, to the provision wholesome, and refreshing stream, into a which they caused to be inserted in the current of poison and death. Small Debts Act, (8 & 9 Vict. c. 127,) and On the motion of Mr. Romilly a new com- which provision was afterwards embodied mittee has been appointed. From the com- in the County Courts Act, (9 & 10 Vict. c. position of the committee it would appear 95,) authorising the imprisonment of small that Mr. Romilly intends to confine its debtors for a period not exceeding forty labours to official fees in courts of equity days. The committee in their report (ante, Watson, who with so much ability and dis-P. 81,) describe this provision as giving cretion conducted the inquiry last session, which had been contracted in fraud, wilful "the power to imprison for debts under 201.,

It is as well that he should do so. Mr.

extravagance, or improvidence; such im- its extension in the enactment alluded to, prisonment not operating as a release of the and if that provision was merely as dedebt." The principle embodied in the pro- scribed by the committee, it would be vision, in its present results and future con- much less objectionable than its present sequences, is thus enthusiastically ex- operation proves it to be. The terms of the tolled :enactment, as contained in the 1st section of the Small Debts Act, are as follow:

"Your committee can hardly exaggerate the value of the principle thus admitted and le- "And it shall be lawful for such commisgalized. They consider it the turning point in sioner or court to make an order on the said the progress of legislation: men are to be debtor for the payment of his debt by instalpunished, not because they are in debt, or be- ments or otherwise and in case such debtor cause they cannot pay, but because they have shall not attend as required by the said sumbeen guilty of acts wilful and mischievous, by mons, and shall not allege a sufficient excuse which the security of commercial property is for not attending, or shall, if attending, refuse endangered, lost, or annihilated, and society at to disclose his property, or his transactions large harassed and baffled in the needful respecting the same, or respecting the contransactions of commerce. This great prin- tracting of the debt, or shall not make answer ciple thus established, and further acknow- thereof to the satisfaction of the commissioner ledged by the County Courts Act, it is the or court, or shall appear to such commissioner object of your committee to extend (by regula- or court to have been guilty of fraud in contions of wholesome stringency) to the whole tracting the debt, or of having wilfully conLaw of Debtor and Creditor, and to apply tracted it without reasonable prospect of being with scrupulous regard to justice to all insol- able to pay it, or of having concealed or made vents who may wilfully become so; and it is away with his property in order to defeat his their full belief, that if such provisions were creditors, or if he appears to have the means extended, a rapid and decided improvement in of paying the same by instalments or otherthe habits and opinions of the mercantile class wise, and shall not pay the same at such time would result, and that those periods of com- as the commissioner or court shall order, then mercial ruin, which destroy the many innocent in any of the said cases it shall be lawful for with the few guilty, would prove less frequent such commissioner, or other presiding officer and severe, and in the end cease altogether." of such court, to order such debtor to be comNow, without disparaging the intentions of the committee, or underrating their exertions, we must be excused if we decline It will immediately be perceived, that the to concede to them the glory they seem so power of imprisonment conferred by this ready to claim for themselves, of establish- section is not restricted, as the committee ing for the first time by legislative enact- appear to suppose, to debts" contracted in ment a principle of undoubted importance. fraud, wilful extravagance, or improviThe principle to which they refer in such dence." A debtor, not attending, and not eloquent language, has been embodied alleging a sufficient excuse for attending in several successive insolvent statutes, and when summoned, or a debtor who appears has been constantly acted upon by those to have the means of paying his debt, and who administer that branch of the law, long shall not pay the same at the time ordered, before the society represented by the com- is placed in the same category with the mittee was thought of. The origin of the fraudulent or improvident debtor. principle, however, is less important than

mitted for any time not exceeding forty days to the common gaol," &c.

This

provision has been in operation since the month of August, 1845. Many hundred The present Insolvent Act, 1 & 2 Vict. c. persons have been imprisoned under it, in 110, s. 78, provides, that if it shall appear to the various gaols throughout the kingdom, the court that any petitioner "shall have con- against whom there was no imputation of tracted any of his or her debts fraudulently, or fraud or improvidence. In practice the by means of a breach of trust, or by means of course of procedure was, to call upon the false pretences, or without having had any debtor to state how he was prepared to pay reasonable or probable expectation at the time the debt? If the answer was satisfactory when contracted of paying the same, or shall have fraudulently or by means of false pretences obtained the forbearance of any of his debts by any of his creditors, or shall have put any of his creditors to any unnecessary expense by any vexatious or frivolous defence or delay, to any suit for recovering any debt or sum of money due from such prisoner," &c., he may be remanded to prison for a period not exceeding two years.

to the creditor, an order was drawn up by consent to pay at the periods and in the proportions specified. If the answer was not satisfactory, the commissioner, or other presiding officer, inquired what amount the debtor was earning, or what income he had, and made an order with reference to the information thus acquired, for payment of

Imprisonment of Small Debtors.-Courts of Appeal in Criminal Cases.

137

the debt "by instalments or otherwise." ment of 207. The provision, therefore, In either event, if the debtor was unable or presses exclusively on the needy man withunwilling to pay the instalments at the out property or friends. It is peculiarly periods specified, he was liable, at the in- and emphatically a law for the poor and stance of the creditor, to be thrown into not for the rich, and being a harsh and prison for forty days. The records of the severe law, it is an outrage upon the spirit Court of Bankruptcy will show, in how of the British constitution. many instances debtors have been com- We must not be understood as charging mitted to prison for non-payment of the the society of merchants, bankers, and instalments ordered by the commissioners, traders, with being parties to the severe and in how few cases there has been a com- prison discipline to which offenders under mitment for fraud or improvidence. The the Small Debts Acts are subjected; nor committee are mistaken, therefore, when, in can it fairly be imputed to them, that the alluding to this provision, they say, men provision upon which we have commented are punished under it, "not because they is limited in its operation to judgments for are in debt, or because they cannot pay, debts not exceeding 201. We take it for but because they have been guilty of acts granted, those who represent this society wilful and mischievous." Practically, they would have been bold enough to carry out are punished because they have incurred their own principles, and if they had been debts which they cannot pay; and the permitted, would have framed the enactpunishment is rather of a severe cha- ment so as to render it applicable to judgracter. It is now notorious, that persons ment debts of any amount. We would committed to prison under the provision fain hope that they protested against trying above cited—which is to introduce such a the experiment in respect of the small happy revolution in our commercial habits debtor, and lament to find them congratuare subjected to the same prison disci- lating themselves upon the establishment of pline and regirnen as convicted felons: and a principle, under the practical operation of after imprisonment for forty days under such circumstances has been endured, the debt is not satisfied, and the debtor may be a second or a third time imprisoned for the same period.

which the poor man winces, whilst the gentleman, or the large trader, who becomes insolvent, is suffered to escape untouched. It is putting even a just principle in jeopardy to embody it in a severe law, and direct its Now assuming, and we do so merely for operation exclusively against those who are the sake of putting the proposition which helpless and destitute of resources. follows, that the principle embodied in this look for more enlarged views from those enactment is a just principle, and that the who undertake to improve and guide the punishment inflicted on debtors who are legislature.

ordered to pay, and do not pay, is not un

We

duly severe, why, we ask, is the law appli- COURT OF APPEAL IN CRIMINAL

CASES.

cable only to cases where the debt does not exceed 201.? If a creditor who has obtained a judgment for less than 207. is en- WE are sorry to find Sir George Grey titled to punish his debtor under any cir- declining to pledge himself to introduce a cumstances, why not the creditor who measure for the establishment of a court of obtains a judgment for 2,000l., or 2007., or criminal appeal. The Right Hon. Secre217.? Is the selfish spendthrift, who en- tary admits there are cases in which a court joys a course of reckless extravagance at of appeal might exercise a useful jurisdicthe expense of others, or the man of busi- tion, and declares that it would be a great ness, who keeps up a fine establishment, relief to those who preside at the Home and deliberately spends year after year twice Office to get rid of the responsibility which as much as his capital and his profits will now devolves upon them by reason of the admit, to be treated with more considera- necessity of investigating criminal cases tion and lenity than the man who has judg- after conviction; but then, he says, there ment signed against him for a debt not ex- are difficulties attending the construction ceeding 201.? No man possessed of pro- of a court of criminal appeal which are unperty which can be turned into money, or derrated by those who have not considered friends to whose generosity he can success- the subject, and he gives a triumphant exfully appeal, will subject himself to incarce-planation of certain individual cases, in ration on the felon's side of a prison when which persons have been convicted and this fearful ordeal is to be avoided by pay- sentenced and afterwards pardoned, their