It being, therefore, the duty of the Government to provide courts of justice, judges, and ministerial officers, by whose agency justice may be administered, a question is made, whether it is for the general interest that the persons who are to be supplied with justice when they have need of it, should have it at a cheap, or at a dear rate? All expense cannot by any means be avoided; but upon the determination of the question, whether it is for the general interest that justice should be administered cheaply or dearly to those who have an occasion to apply for it, depends the solution of this other question, Whether so much of the expense of administering justice as is incurred by Government in providing the necessary establishment ought or ought not to be ultimately sustained by Government.

Now, as it cannot be for, but must be greatly against, the general interest, that any man who has suffered a wrong should be without a remedy for it; as the very existence of wrong, however small, without remedy, tends to general dissatisfaction and disturbance, and leads to that wild sort of justice which is sought to be procured by acts of revenge, it follows that there ought to be not only no denial of justice, but no discouragement to the pursuit or demand of justice; and as expense is undoubtedly a discouragement to the demand, the necessary consequence is, that the expense ought to be reduced to the lowest possible degree.

To the proposition thus stated, scarcely any objection has been made. But two arguments are used which are said to lead to an opposite conclusion.

I. It is said that the demandant of justice asks for a

service, he asks for a benefit to be conferred upon him; the means of affording that benefit are provided by Government; but "the burthen of the establishment ought to lie on those who reap the benefit." "Is it not just," asked Lord Chancellor Cottenham, "to make him who sets the machinery of justice in motion for his own benefit, contribute to the cost of it?"

It is not an answer, but an explanation that is wanting.* It is the community, and not especially the demandant of justice, who is benefited by the administration of justice and the establishment.

That a general sense of security may prevail, is the primary object for which the establishment is, or ought to be maintained. You suppose a wrong to have been done; the general sense of security is so far violated. If the wrong remains unredressed, the violation is enormously increased in amount. An unredressed wrong having happened, may be repeated, and all security may be lost. To prevent this, as well as to compensate the sufferer, which, though important, is in importance inferior to the other, the public and general interest is greatly concerned in seeing the wrong redressed; and if no compensation at all were provided, or ever to be made to the sufferer, it would still be a matter of public concern that the wrong-doer should be punished: and clearly when the law says to the sufferer, You shall have compensation, you shall have the payment, or the damages which may be due to you, it means to confer a benefit on the whole community, and not upon the sufferer in particular; and if the rule be true that the

*See Lord Redesdale's Considerations, p. 11.

burthen of the establishment ought to lie on those who reap the benefit, the burthen ought to fall, not on the particular suitor, but on the public.

Not only is the law made, and justice administered for the general benefit, but the public do, or ought to derive benefit from almost every law-suit. The law itself is no more than a writing upon a piece of paper. its efficacy is only shown when it is put in act—when its operation is exhibited by its application to the cases of real occurrence. Then we see it furnishing its important lessons to the whole community, encouraging the good, deterring the bad, teaching duty to all who are interested to learn; and these benefits, by no means inconsiderable, are procured for the community by the demandant of justice, who, when he asks for himself the payment or damages which the law entitles him to, and which is promised to him by the Government, does not (when you have done all you can to relieve him) obtain it without cost and inconvenience, often to a large amount, to himself.

Το say that besides the loss from delay, the inconvenience and expense which in no system can be avoided, he shall also be subjected to the cost of that establishment from which the whole community derive a constant benefit, seems in the highest degree unjust and inexpedient.

If a foreign army invades your frontier,* the inhabitants who live on the frontier are those who first and most immediately suffer, and who may, perhaps, be most willing to resist the invaders; but the danger presses on

*

66 This is Bentham's illustration-Law Taxes.'

the whole country, and the inhabitants are all of them interested to put an end to the attack. If in these circumstances, the Government levies an army which repels the invader altogether, what would be thought of it, if at the end of the contest an attempt were made, not to indemnify the wretched inhabitants whose property had been the seat of war, but to impose upon them the burden of the whole expense?

But, instead of foreign army, read, the wrong-doers who are seeking to invade the rights of all persons exposed to their depredations; for, inhabitants who live on the frontier, read, the persons who for the time are actually suffering by the violation of their rights, and for the army raised by Government to repel the foreign invader, read, the establishment of Courts, Judges, and ministers of justice to redress the violations of right which are committed; and in levying upon the suitors the expense of these establishments, you have a transaction analogous to the conduct of a Government, which should levy on the inhabitants of the invaded frontier the expense of the army raised to repel the invader.

Upon reflection it is abundantly clear, that the expense of justice, so far as it consists in maintaining the necessary establishment and machinery, ought to be defrayed by the community at large, and not by the suitors.

II. But then, it is said to be useful and proper to impose expense on suitors for the purpose of checking litigation.*

Litigation, it is said, is not always bona fide, but

* See Lord Redesdale's Cousiderations, p. 96.

sometimes vexatious and unjust. And Lord Chief Justice Denman asked, "Is all litigation bona fide? Are you not to have the means of punishing vexatious litigation by imposing costs?" It is difficult to deal with such an argument as this. Because litigation may sometimes be vexatious, does it therefore follow that all litigation whatever should indiscriminately be subject to cost? Because litigation may sometimes be vexatious, and in such cases ought to be visited with costs in proportion to the amount of vexation, does it therefore follow that such costs ought to be raised by a general rule indiscriminately acted upon in all cases, and applied for the purpose of maintaining the judicial establishment? If there be a ground for the argument (as I think there is), ought not the amount of such costs to be proportioned to the vexation of which the litigant has been guilty, and applied towards the indemnification of the party who has been made to suffer by it?

It is, however, so usual to interpret the word litigation in a bad sense, that the subject requires some consideration before we can well understand the proposition, that the expense of justice is useful in checking litigation.

Litigation is the act of demanding a right in a Court of Justice.

When wrong is done, or believed to be done, by one man to another-if we would preserve the peace, and not have the wrong, or the belief of it, to prevail, and be productive of violence, the parties must submit their respective claims to a judge. Doing this is litigationit is the demand which each party makes before the