ART. X. THE LEGAL BUDGET.

INEQUALITY OF TAXATION AMONG SUITORS, AND IMPROVIDENCE OF ITS COLLECTION.

But

THE suitors at law and in equity are taxed to the judicial exchequer for the mere support of those establishments to the enormous extent of from 300,000l. to 400,000l. a-year. in assessing this tax every recognised principle of public taxation is set at nought; and in collecting it there is an utter absence of all arrangement to secure the transmission of the money raised into the judicial or public purse: 300,000l. or 400,000l. a-year (there is no one who can by possibility know the precise amount) is assessed upon the suitors (that is to say, upon the subjects of the judicial empire), upon principles utterly abhorrent to all our first ideas of justice; and this enormous sum of money (and how much more is a mere matter of conjecture) is then collected by about 200 feebailiffs, and the 300,000l. or thereabouts is received from them in full for their receipts, without the slightest pretence of checking their accounts, and, as to two-thirds of them, without even requiring any affidavit or averment of the correctness of the amount. Thus recklessly is our poor suitor dealt with! He not only has to pay, when he ought not to pay, to maintain the public judicial establishments, that from them he may get, by means of complicated, conflicting, and defective systems of procedure, the justice which the public interest in his person requires; but what he does pay is extorted from him on the most confessedly unjust principle of taxation ever yet invented-by a poll-tax; and when it is extorted, finds its way into the judicial exchequer, just so far as the conscience or the prudence of 200 uncontrolled feetakers may determine, no small sum doubtless staying somewhere by the way.

It is not our intention in this article to attempt to point out at length the cure for this disgraceful state of things. This can only be done by a more public and extensive in

vestigation of the subject than any private individual can give. We shall merely here attempt to detail the leading facts as they now exist, and also to state what we conceive are some of the governing principles which should be held in view by Parliament, or rather by the Judges, who, as to this matter, are the real legislators in legislating on this very important matter.

Let us remark, before going farther, that not only is immediate regulation of the public judicial fee-system imperatively due to the direct pecuniary interest of the suitor, as well as to the position and influence of the judicial institutions (which must be greatly impaired by every suspected dishonesty in the offices of justice); but also that such legal reform, as those we are now proposing are precisely the reforms which are all gain to the suitor. Unlike the rules and orders as to pleadings and practice which have as yet been almost the only fruit of the public demand for reform in legal procedure, such regulations as we are advocating cost the suitor absolutely nothing in carrying them into practice. Not so with our rules. A great outcry is made against some or other obstructive regulation in pleading or practice. Acting as legislator, the judge makes a rule to remedy it. He reduces the rule into writing, promulgates it, and has it enrolled on the solemn records of the Court. Here he lays down his legislative power. The rule has next to be interpreted by him in his judicial capacity. He does this as if it were an Act of Parliament, which he had not seen before; an order from some power superior to himself and to his own sense of justice. Its generalities have now to be applied to some individual occurring case. The judge, though he himself made the rule, conceives it right to suppose himself utterly ignorant of its object. He looks at it with great reverence, possibly with some superstition. It is no longer a formula subservient to the immediate ends of justice, and by the use of which he is to do justice. Justice now, on the other hand, must subserve to the rule, and is to be done, so far as done," according to the rules of the Court." The records of the Court must be kept pure. The judge's own creation has grown at once into his master. The thing of form has become a thing of subHis own form of words has become a very monster,

stance.

and he, the judicial Frankenstein, stands aghast at it. If he be an Equity Judge he puts on his judicial robes to it, and requires counsel, two at least, to be briefed and feed, and solemnly to argue what this his rule can mean. He listens with all the gravity of his high office. The grammar and construction are profoundly discussed and weighed. And, after due debate and deliberation, he proceeds to pronounce, with judicial state, what his own legislative meaning must be taken to have been. By this meaning, so weighed, discussed, and probably qualified or distorted, and by it only, can he in future allow himself to act. The intended blessing has possibly by this become an added curse to the suitor. The distortion has become a new grievance, which in time grows so great as to call out a new legislative rule, and this again is a new shackle, and has to be re-argued and re-distorted perhaps just as the first was.

This is the course, more especially in Equity (for our Common Law Judges are less formal, less expensive, and bolder), of our pleading and practice reforms. But then, all this ceremony has to be paid for, and that by the bewildered suitor. And the ceremony is very dear, so dear, that it is well known that the late Mr. Jacob used to say, "every line in Lord Redesdale's book had cost 1000l. ;" the cost, that is to say, of the ceremonies, (of the recorded ceremonies, that is,) is 10007. for each line of their history.

A better assessment of fees, on the other hand the abolition, for instance, of the poll-tax principle, now universal in our system of judicial imposts, or some scheme of checks in the money-takers' accounts, wants no written formula (or rule of court) to embody it no solemn debate to interpret itno unvarying deference to be paid to it will not, in short, cost one farthing. But such reform will widely extend legal protection to the poor, economise the suitor's money, improve the officer's character, save the officer's time, enable the judges and the public to get most important statistical information, greatly tend to simplify the practice, and yet, as we have said, not cost a single farthing to the suitor, either poor or rich.

To attempt to carry out the larger and truer reform of making the public pay for the whole of its judicial police,

(which we have already glanced at1,) would be, no doubt, to encounter the overwhelming opposition of a Chancellor of the Exchequer, backed, probably, by nearly an entire House of Commons; but to the lesser, and yet invaluable improvement of better fiscal arrangements, we should find no external opposition whatever. As to it, we have nothing but our own ignorance, indifference, and vis inertia, to overcome. We do not want even the legislative sanction. The Judges, at least in Equity, have already legislative powers deputed to them. But even Judges, when they are to act as legislators, must have some concurrence of external opinion, and some pressure from without. Let but the law reformers of the day speak out on the subject, and there can be no doubt that they will find the judges fully disposed to effect the amendments desired. The abject position of the injured parties appeals to us also. The public at large can meet in knots throughout the empire to discuss its affairs, and can detail them in petitions to its legislature. But how are the suitors to know or represent the sad grinding grievances by which they are oppressed?

But in our anxiety to speak out and earnestly, we are somewhat forestalling the proper order in which our subject should be presented; and must, therefore, risk some recapitulation in what we have yet to say.

If the public will not pay for judicial establishments, the Legislature (whether that Legislature be pro hac the Parliament or the Judges of Westminster Hall) should, at least, take care

1st. That the suitors are taxed fairly as between rich and poor; the rich suitor paying in some proportion to the amount at stake.

2d. That the taxes are imposed in the best way.

3d. That all the money taken goes to its object, and that there should be no leakage in the conduit pipes.

We have already stated that none of these objects has yet received any systematic legislative attention.2

1 See antè, p. 314. We shall speedily return to the subject.

We need

2 We are quite sure that this statement is altogether inapplicable, as regards the private individual attention which the Judges of the different Courts have bestowed on these matters. Of course the public can have no means of know

hardly add that they are all of them farther from being effected than can well be conceived.

We have also stated that the present position of our judicial fiscal arrangements is altogether owing to the system which, until the present day, has pervaded all our Courts-of treating justice as a thing to be sold, and official fees as a matter of private personal right and property. To a great extent, this barbarous system is done away with, but much remains still to be done. The Duke of Grafton, for instance, we believe, in the character of the Sealer of Writs, is still entitled to exact, and continues to exact, a fee from every person who has to seek the assistance of the Courts, either of Queen's Bench or Common Pleas, for the recovery of any, the most trumpery, civil right. He renders in this capacity no useful service whatever to either suitor or judge. He is a pure janitor of the Courts - a taker of toll from every suitor who walks into them. Though no service is done by him, an income of probably, at least, 2000l. a year is levied by him.1 There are still existing many other cases of fees taken by the officer for his own use. The Judges, both at Law and in Equity, unfortunately have still permitted their own personal officers (secretaries, &c.), to continue to be fee-taking officers. The marshals and associates of the Judges, and other fee-takers at nisi prius, for instance, still receive head-money from plaintiffs, amounting to above 47. on each trial, a very serious tax indeed on actions for small debts.

There is also a newly-created fee, which belongs to this class of tax, and is, in many respects, one of the most objectionable specimens of them-i. e. the copy money in the equity master's offices. The under-clerks are allowed to take to their own use 1d. for folios of 90 words for any copies

ing what this may be, or how extensive may be the remedies likely to follow. We hope much that they will be large and not long deferred. We regret to say that not less than five years have now elapsed since the second and third of these heads were brought clearly before the public in a pamphlet which had the fortune to receive a good deal of attention; and that, notwithstanding, nothing has yet been done to remedy the abuses in question.

1 We may be in error in this sum. There are no returns that we know of showing his emoluments from this source. He gets 10,5841. a-year out of the excise and post-office; but his receipts as a judicial officer are not included in the very imperfect return printed June, 1844, on Mr. Williams's motion.