Philip Schofield (ed.), The Collected Works of Jeremy Bentham: Official Aptitude Maximized; Expense Minimized
ON THE MODE OF REMUNERATION AS BETWEEN SALARY AND FEES
§1. Official Remuneration—which the best mode? Salary or Fees?
By salary understand a mass of emolument periodically afforded, and generally at all times the same: or if on any occasion in any degree varied, not lessened without timely notice in such sort as to minimize, if it be not practicable to exclude altogether, the attendant pain of disappointment: the elementary portions of it in any case not being attached to the several times and occasions on which this or that individual portion of the aggregate mass of service, rendered or supposed to be rendered in virtue of the situation, is performed.
By a fee understand a portion of emolument received on the occasion or in consideration of a particular service rendered by a functionary in virtue of this or that particular situation occupied by him, or occupation followed by him.
As a means of engaging appropriate and apt service of the ordinary kind in official situations by pecuniary remuneration, which of the two modes is the most apt—salary or fees? Answer—salary: fees being in an eminent degree unapt: and that in the case of every official situation whatsoever: though more in certain situations than in others. Reasons, these, the heads of which here follow.
Follows in general terms the enumeration of the evil effects, not produced, any of them, by salary; produced, all of them, by fees.
1. To the public at large, delay in the business whatsoever it may be.
2. To individual suitors at the several offices, expence, vexation and delay: the whole augmented to an indefinite amount, comparison had with salary.
3. To the functionary so remunerated, the value of the remuneration lessened, by the uncertainty of its amount.
4. To the functionary, pain of disappointment liable to be produced, on the unexpected sinking of the amount below the expectation produced by antecedent habitual experience or calculation.
The judiciary is the department in which the badness of the first and second of these evil effects will be seen to have swollen to a paramount magnitude.
pg 369 All these several evil effects will be more particularly brought to view and their existence rendered manifest in and by so many ensuing Sections.1 Of whatever good effects have ever been or can be regarded as produced by this mode of remuneration, the conception will be shewn to be illusory. These are:
1. Good effects looked for in the circumstance that the burthen imposed rests on an individual to whom the service performed by the functionary is rendered. See §| |.2
2. Good effects looked for from the alacrity supposed to be produced on the part of the functionary on the occasion of the performance of each service, and the consequent receipt of the remuneration attached to it. See §| |.
In conclusion,3 a view will be given of the efficient causes by which the practice of giving this shape to official remuneration has been produced. Among them, any thing rather than any experience of the usefulness of this institution will be seen perceptible: usefulness— understand to persons other than the authors and persons linked with them by a community of particular and sinister interest.4
§2. Evil effect the first—to the detriment of the public service, delay augmented
In itself evil in this shape constitutes, it will be seen, an item distinct from, and in many cases to an indefinite degree greater than, the aggregate of the evils produced at the charge of individual suitors. Therefore it is, that it is stated as a separate evil, and that the place assigned to it is the first place. But the nature and magnitude of it can not be made apparent but by and in the course of the statements and observations by which the evil effects in relation to suitors individually taken are held up to view: and moreover its nature is variously pg 370modified by the nature of the services belonging to the different departments of the entire official establishment.
The delay is produced by individual functionaries, by the sinister interest, as will be seen, of the individual functionaries, to the detriment of individual suitors: and from the delay produced on this occasion is liable to result, in this or that branch of the public service, as will be seen, correspondent detriment to the public service.
It will be shown in §1 how under the fee-system, for the sake of the profit by the expence, delay to the business is manufactured by functionaries: and the business of suitors being, at the same time, the business of government, thus it is that delay to the suitors is in a correspondent degree delay to the business of government.
By the mere operation of telling the money of which the fee is composed, and examining into the goodness of it, and, on each individual occasion, ascertaining the coincidence between the sum demanded for the service in question and the sum allowed or supposed to be allowed by regulation or custom, additional quantities of time can not but be consumed: and forasmuch as for every part of the functionary's time remuneration is not less requisite than for any other, here may be seen a perennial source of delay and expence to government, such as, in the aggregate, can not but be considerable.
The occasions on which a fee is due, and on each occasion the quantum of what is due, being in the nature of the case more or less involved in uncertainty, every now and then disputes and even quarrels can not fail to arise: and by all these contestations, an additional and extra consumption of time can not fail to be produced.
The greater the number of these discussions, the greater the number of the occasions on which the suitor and the functionary are brought into contact with each other: the greater the length of them, the closer the contact. The situation of the suitor being on every occasion, in a greater or less degree, that of dependence on the good-will and agency of the functionary, the closer this contact, the more strongly sensible will the suitor be to the necessity of conciliating in his favour the goodwill of the functionary.
On this occasion a distinction will require to be made between two sorts of occasions: one on which, by undue favour shewn to the suitor, detriment to the public service is capable of being produced; another on which evil in that shape is not capable of being produced. To the former class for example will be found those which are presented by various branches of the revenue: in particular that derived from exports and imports of commodities that have been ren- pg 371dered subject-matters of taxation or prohibition: to the latter class some of those which are afforded by various offices belonging to the department of justice.
But in respect of the delay and vexation in other shapes to which, in a greater or less degree, the suitor can not but be exposed to experience at the hands of the functionary, his state can not but be a state of correspondent dependence.
[§3. Evil effect the 2d. Expence to Suitors ]1
§4. Evil effect the 3[d] To suitors, expence, delay and vexation augmented
1. By suitors, understand individuals of all sorts considered as having or capable of having business to transact at the office in question with any functionary or other person in relation to that branch of the public pg 372service to which the office belongs. In general this appellation has not been [used] in any case except that in which the department the office belongs to is the judiciary, and the business, business done in the course of litiscontestation. In the case of every department however and every office in it, individuals there are who have business in this or that shape to transact in that same office: for individuals, in so far as considered in this respect, a common denomination is needed, and this may serve at least as well as, and in virtue of the analogy, still better than any other.
2. By expence, on this as on other occasions, under[stand] expence in all shapes—expence as applied not only to money but to all subject matters of expenditure: human labour and time in particular—that being the main source of the matter of wealth in all its shapes—of money's worth as well as money.
In the articles of time and labour, expence is equivalent to expence in the article of money.
What if the suitor in question be so circumstanced that he neither does obtain, nor ever endeavours to obtain, money or money's worth by the correspondent employment given to his labour and his time? Between the two cases, in words, yes: but in effect, no difference is there except in so far as employment given to labour and time is in the case of one class necessary to the subsistence of the individual; in the case of another class, not thus necessary. This case allowed for, expence in labour and time, if not employed in obtaining or endeavouring to obtain money or money's worth in a permanent shape, is employed in the enjoyment of or endeavour to enjoy pleasure, or in the exclusion of or endeavour to exclude pain: and only in so far as it is productive of these effects—one or other of them, are money, or money's worth in a permanent shape, possessed of any value.1
With truth may it be said—that fees receivable by functionaries [have] among their effects the maximization of expence at the charge of suitors. Why? Answer. Because in the instance of each such functionary, to effect such maximization is his interest: and on the part of every such functionary, according to the nature of the office in a degree more or less considerable, it is in his power, in this or that shape, in this or that way, to make addition to the net aggregate value pg 373of those same fees, or what comes to the same thing, to the aggregate of the net emolument, in all shapes taken together, derivable by means of them, and in the case of every individual, if the interest and the power are united, the correspondent will, and in consequence the correspondent agency, takes place of course.
In regard to expence at the charge of the suitor, remains to be shewn how it is that the power of giving encrease to it is in every case in the hands of the functionary. Through the medium of the power of giving encrease to delay, this power exists in every case: and of this presently.1 But, for the most part, even in a direct way, this pernicious and predatory power has, and at all times has had, and, unless appropriate measure and effectual arrangement, of which elsewhere,2 shall have been employed for the extinction of it, will at all times continue to have, place.
For the purpose of seeing how it is that this state of things has been produced, two correspondent and inseparably connected official situations must be taken into view. These are those of incumbent and patron: incumbent, the functionary by whom the official situation is filled: patron, the functionary by the result of whose will, in a direct or indirect way, the incumbent is located: and note that, under the existing system, generally speaking, to a great, perhaps the most considerable, extent, by the same individual by whom the location is performed, so also, and by him alone, is the dislocation performable: so also is the direction given to the operations which, on the rendering of the service or supposed service, come to be performed.
By whatsoever interest the incumbent has in the production of evil in any of these shapes, the patron has a correspondent interest.
In the case of an office belonging to the department called spiritual or ecclesiastical, and in particular in regard to those offices the patronage in regard to which is openly and without attempt at restriction an object of sale, this connection in respect of interest is not only seen, but universally acknowledged to be seen, by every eye. In the case of offices in general it is perhaps not in every instance seen, certainly not in every instance acknowledged: acknowledged or not acknowledged, its influence is not the less effective.
pg 374§5. Evil effect the 4th. To functionaries, value of the remuneration lessened by incidental disappointments
In the Reports of the Account Commission Ao. 1780, Vol. II. p. 185,1 may be seen an instance in which between the amount of the remuneration of one year and that of the remuneration of the next year there was a difference of one half:2 suppose the difference to be on the side of encrease, so far to the purpose here in question it is well: but suppose it to be on the side of decrease, think of the situation of one who, having adjusted his expenditure to the amount of his income of the first of the two years, finds the half of it slipping through his fingers in the second.
§6. Evil effect the 5th-To functionaries, the value lessened by the uncertainty of the amount
This evil effect, though so intimately connected with the one just mentioned, is still distinguishable from it. By the former evil, as often as it is experienced, and on each occasion in proportion to the quantity of it, the party suffering is—the individual functionary. But that which one man has experienced, another, whose interest engages him to pay more or less attention to the case, will anticipate: and in so far as his conduct is determined by the suggestions of prudence, comparing the uncertainty attached to the income by the fee system with its certainty under the salary system, he will prefer, to the average annual amount of the remuneration receivable from fees, a less amount paid in the shape of salary: and the public may be made a gainer by the amount of the difference.
§7. Evil effect the 6th Effect on the Judiciary system
Whatsoever be the department, remuneration in the shape of fees (as hath been seen) is, to the whole extent of it, a bounty upon the pg 375production of expence, delay and vexation. As in all other departments so in this, parties by whom the evil effects are experienced: the public, the suitors, and the functionaries belonging to the department.
But so far as the functionaries are concerned, the evils, though as above shewn to be real, are in comparison so minute, as to constitute no more than an evanescent quantity: while to functionaries taken in the aggregate, the benefit is to such a degree enormous, that to every eye but of a minute observer, the evils—the evils as above—are compleatly hid.
At the same time, vast as they are, compared with the evils by which assignable individuals are separately affected, still so small are those by which the public in its aggregate capacity is the sufferer, so small, and at the same [time] so much less conspicuous, that in bringing the aggregate of both branches of the evil to view, there will be a convenience in giving the first place to those by which individuals are more manifestly affected.
Various are the occasions on which, by the author of these pages, industry has been employed in the endeavour to hold up to view the state into which the business of the Judiciary department has been brought by the giving of this form to judicial remuneration. Of so large a quantity neither can repetition nor so much as any thing like an adequate abridgment be afforded here. Law unknowable, justice inaccessible: by these four words may however some conception, how general and faint, be given of the practical result. Justice inaccessible: in these two words may be seen the state of things expressed by the general rule: the case where it is accessible being no more than an exception, and that comparatively a very narrow one. In the number of the individuals to whom justice is accessible compared with the number of those to whom it is inaccessible would be expressed in figures the ratio between the extent of the exception as compared with that of the general rule.
Justice rendered inaccessible—of this effect what are the efficient and final causes? Answer: efficient cause, the tax imposed in the name of fees. From the one cause, two exquisitely agreable effects: sale of justice to all who can find wherewithal to pay the tax: denial of justice to all who can not: that is to all besides. From the denial of justice, results to the fee-fed Judge, correspondent ease: to the man of opulence, in one word to the aristocrat, member of the so intimately associated though not in form incorporated body of the ruling few, the conjoint and correspondent powers of depredation and oppression.
On the condition of the member of the body composed of the pg 376relatively indigent, the effect produced by this inaccessibility, coupled with the venality of the powers of judicature, is differently modified, according as the situation in which he has need of it is that of plaintiff or that of defendant.
1. By the denial of the faculty of acting in the character of plaintiff, the Judge delivers him up to all the several members of the relatively opulent body, to be oppressed and plundered, or in one word to be tormented, in all imaginable ways at pleasure. In so doing, no exercise does the learned functionary give in any shape to his active faculty, in any other way than by refusing to act—unless he receives the fee which the individual is unable to give. Whatsoever be the suffering produced, no otherwise is it contribute[d] to by him than a murder would be contributed to by a surgeon, who, seeing a wounded man wilting in his blood, and being in league with a murderer by whom the wound had been given, should refuse to save his life without a fee which he saw would not be given.
2. By the denial of the faculty of acting in the character of defendant, the Judge employs his active faculty in inflicting on the unoffending whatever sufferings are professed to be intended to be inflicted, whether in the shape of punishment or in the shape of the burthen of affording satisfaction, upon offenders: partly in the way of unproductive oppression, partly in the way of depredation, as the case may be: where it is in the way of depredation, in consideration of the share he has in the booty, he employs his irresistible power in exacting from the relatively indigent individual whatsoever is demanded at his expence by the relatively opulent. In this case the part he acts is that of the surgeon who, for a fee given him by a murderer, should lend his hand for the purpose of the mortal stab.
Whatsoever villainy is practiced by, or to the benefit of, the ruling few, a veil for it, the least transparent that the nature of the case affords, will, by or for the said ruling few, of course be found. The villainy here in question is the venality, coupled with the inaccessibility, of justice. The veil employed in this case is composed of the words, discouragement to litigation. Litigation is a dyslogistic term which has for its correspondent neutral associate, litiscontestation. Those whose purpose it is on the occasion in question to cause litiscontestation to be regarded with displeasure employ instead of it the word litigation, a word designative of an action on the idea of which the stamp of general disapprobation is seen to stand affixt. Litigation is a bad thing: this admitted, discouragement opposed to it is a good thing.
Not that this statement is altogether correct. In it are contained two positions, one of which is indeed true, but the other false. Applied to pg 377the case of him whose character, were he able to sustain it, would be that of plaintiff, true it is that the mass of unpayable fees do discourage litiscontestation and therein and with it litigation: not simply do they discourage it, they impossibilize it. But applied to the case of him whose character, were he able to sustain it, would be that of defendant, so far from impossibilizing litiscontestation and therein litigation, they give birth to it: they cause it to have place in instances in which it would otherwise not have place. Of the sword called the sword of justice, the Judge, at the price which he has set upon it, to every body who, for the pleasure of oppression or the profit of depredation, feels disposed to put it to use, offers the use of it accordingly: if in consequence of this advertisement no person becomes a customer for the article, it is no fault of the Judge: what depends upon him to do for the prosperity of this branch of trade has been done.
In what is it that the slavery under which the subject many are held by the ruling few differs from that in which the blacks are held by the whites in the tropical regions, and that in which the Catholics are held by the Protestants in Great Britain and Ireland? Answer—in this: to wit, that there exists not in this case as in those any invariable or determinate line of demarcation between those [who] are under subjection to the tyranny and those who derive the benefit of it. In the case of the blacks, and others in which that tint is discernible, the mark of distinction and justificative cause of oppression is the colour: in the case of the hereticks abovementioned, it is their creed. On the other hand, it not being found possible to keep all men of the class in question at all times in the state of the requisite degree of indigence, neither is the slave kept for ever out of all hope of relative emancipation, nor is the tyrant altogether exempted from the fear of experiencing1 resistance.2
True it is that a power thus commodious and extensive is not obtained by them [from]3 the learned manufacturers gratis: a price is set upon it: the price constituted by the payment of their fees. But in the amount of the fees no distinction being in any case produced by the degree of opulence on the part of him of whom it is exacted, the greater the opulence of the public enemy, the lighter is the burthen, and the more delicious the correspondent benefit: hence the more enormous his opulence, the more closely is his sinister interest connected with that of the men of law: with that of the fee-fed Judge pg 378under the existing system; with that of the professional Advocate in a greater or less degree under every possible system.
Were it not for this1 and a few other obstacles which, how insufficient separately, collectively taken have for some ages constituted a nearly effectual bar, the lives and fortunes of the male part, the chastity of the female, would be compleatly at the mercy and disposal of the ruling few.
By a Noble Lord, an Honourable Gentleman, and a Gentleman in a way to become Honourable, an ordinary gun would be employed upon all vulgars who stood in the way of his pleasure in any shape with as little hesitation or difficulty as at present upon those who stand in the way of his pleasure in the shape of field sports: in every such distinguished person would be to be seen a Miguel and a Constantine.2
A learned Judge on his part, looking round from [his] country [seat],3 would make observation of the instances on which the [regularity] 4 of his demesne was interrupted by the intrusion of this or that village Naboth. By a motion of course the irregularity would be obliterated, and with as little difficulty, should the peasant have proved troublesome, the lot of Naboth would be his.5 The head of a wolf (learned Judges know how) would be sat upon his shoulders:6 and the sooner the wolf is [in] the appropriate manner disposed of, so much the better for sheep, not forgetting the shepherd. To effect this or any other desirable transplantation would but cost one fiction more in addition to so many others already established for congenial purposes and with congenial effects.
Of the female sex, the whole of the desirable portion would constitute a Harem of which Noble Lords, Honorable Gentlemen, Gentlemen in a way to become Honorable, and Learned Judges would be Tenants in common. Tenants in common in the first instance, unless and untill by a writ of partition, or a partition by treaty without writ, pg 379[or] by an equitable adjustment such as the Equity Judges in their wisdom might approve, a separation shall have been made—a separation the probable terms of which are not on this occasion necessary to be ascertained.
Mere satire, extravagance, unground[ed], arbitrary, licentious, uncandid, etc.: to the supposition here brought to view, can any such epithets of reprobation with reason and justice be applied? Not they indeed. Fable, no part of it: history, all of it.
Wolf-head transplanting practice.
First as the sort of conquests made by learned Judges by so simple an expedient as the clapping of a wolf-head on the shoulders of whatever landholder was destined to be vanquished. This in the reign of Henry the 6th.1 was practice: so, by a Statute of that [reign]2 we are informed. Not being such perfect admirers of practice in those days as in these, Honorable Gentlemen and Noble Lords, it appears, objected to this. By His Majesty in Parliament intimation was accordingly given that the continuance of this practice would not be approved of.3 As for anything in the shape of punishment or so much as removal of the Judges of those good old times for the obtainment of land on this false pretence, it was no more in the order of things than would now be the calling Lord Tenterden in question for the impunity given by him to his partner in the profit of the transaction, the learned Tipstaff, who, with the Table of allowed fees before his eyes, confessed the having taken almost the double of it: as to which see Indications respecting Lord Eldon, §[XII].4
Next as to the precedent for the establishment of the Harem. Not being so generally known as the Metamorphoses for the knowledge of which we are indebted to Ovid,5 the wolf-head leger-de-main required proof. Of the Harem-authorizing precedent so extensive is the notoriety, a simple allusion will in this case suffice. Howsoever it may be with Christianity, the feudal system beyond all dispute is part and parcel of the law of England. Under that system, if not to an allcomprehensive, at any rate to a considerably wide extent, the first night of a tenant's bride was numbered among the subject-matters of vested rights.
At present, such has been the disregard shewn [to] these matchless, invaluable privileges, not only has the exercise of them been pg 380subjected [to] a limitation by the circumstance of colour, but to enable himself to enjoy the benefit of them, a gentleman, howsoever worshipful, must confine himself to this or that particular spot in another hemisphere.1
By grievances thus afflictive a reflecting mind can not but be thrown back to those times of antient wisdom in which, by the hardness of them, the powers of learned Doctors of Physic had been subjected to so restrictive a limitation as that which was imposed by a prohibition to dissect bodies until the life had left them: pro duritie temporum ubi vivos homines dissecare non licet.2
This is not yet enough. Under the cover, and for the benefit, of the same learned fraternity, with its Noble and Right Honorable and Honorable members and allies, with their exertions for its efficient cause, it is that all approach to any thing like a[n] acquaintance with that rule of action, for the non-observance of which the subject many are punished and otherwise afflicted in an endless variety of ways, has been rendered and kept physically impossible; and by the blessing of God, as drawn down upon the nation by Reverend, Right Reverend and Most Reverend Divines, will be kept in that state so long as the blessing inflicted on the nation of matchless constitution continues to be enjoyed by it.
Be the subject what it may, to its being known a condition precedent Is—its possession of existence. This attribute, the determination is, that to an infinite portion of its extent it never shall be in possession of. Ductility by proper hands being a quality regarded as indispensable, fictitiousness, a quality of a secondary nature admirably suited to the purpose of such ductility, is accordingly secured, and by God's blessing for ever, by this all-regulating rule. 'That which you assert to be true, namely the existence of an imaginary being which you call Common Law, is to your own full knowledge contrary to truth.' This is what to every learned gentleman may with undisputable truth be said by any unlearned individual. But by this consideration will any learned Gentleman be ever stopped either from appealing to this imaginary standard, or from trumpeting forth the excellence of it? No: not till general and public indignation puts effrontery to shame, and mendacity to silence.3
pg 381Of this state of the rule [of] action—this state in which it stands placed by the substitution of fees to salary on the occasion of remuneration for official service in the judiciary department—in a word by the fee-gathering system—[the result is] that not only to the subject many, but even to the very authors of the evil themselves, the ruling few, security by virtue of the law is for every thing dear to man an empty name. Yet such on the nature of men is the effect of the possession of power—that rather than part with the pleasure of holding others in a state of greater torment, they choose to remain in a similar state of torment themselves. To turn their eyes to the evil, for the purpose of remedy, would require trouble: to turn their eyes from the evil requires none.
§8. Reprobation of the fee system by the Account Commission of 1780 to 1787
So much for principles. Now for inferences deduced by authority from practice: authority, that of the Commissioners of Accounts: Commission dated | | 1780.a Of Reports, three Volumes: published Vol. I. Ao 1783; Vol. II. Ao. 1785; Vol. III. Ao. 1787.1
pg 382Here follow certain extracts, being all those which have for their subject-matter remuneration in the shape of fees. Nothing can be more decided than the condemnation there passed upon this mode. On no occasion does the field of observation extend beyond one Department—that department some branch of the financial. But unless some specific reason can be assigned to the contrary, the observation may without much danger of error be regarded as applying alike to all.a
Sympathetic intercourse between suitor and functionary, corruptive and detrimental to the interest of the public,
Vol. III. pp. 187. 188.1 With whatever strictness a line of conduct under these circumstances may be watched, it behoves, as a primary precaution, to fix the mode of Reward upon the purest foundation. The practice of allowing the officer to be paid by the Merchant, for the performance of Official Business, appears to be repugnant to that maxim. It occasions an intercourse unfit and dangerous, and brings them into a mutual relation, in which they should never stand. Habits of pecuniary obligation or Exchange of pg 383 private Interest, ought not to mingle with the execution of such Public Duty. —The subsistence of the Officer who collects Revenue, should in no wise depend upon the person who contributes. . . .
The fee is incapable of being made variable in its quantum according to the value of the service.
It is not to be overlooked, that the Fee has in itself an inherent Defect. That method of payment can not be so adjusted as to bear exact proportion to the value of the subject which it affects. The fee is a given sum paid upon a certain Document, or for a certain service: whether it be upon an entry, or by the Package, or Tale, or such like measure, the different value of the goods does not produce any corresponding variation in the Fee. And this is not barely a speculative imperfection: it has hurtful consequences. We have it in evidence, that orders, when but to small amount, have been very frequently left unexecuted on account of the heaviness of the Fees which must have been paid upon them: and further, that these orders, there was great reason to believe, were thereby diverted into the channels of Foreign Trade.
Throughout the Customs, fees and gratuities ought to be abolished.
We are accordingly of opinion, that every payment by Fee or Gratuity, or in any shape whatsoever, by the Merchant or others to the Officer, for or on account of business done in the discharge of his official duty, ought to be abolished throughout the whole department of the Customs; and that the reward of the Officer (except in what arises from seizures) should be by salary alone.
All fees ought to be abolished.
Gratuities. At the charge of the suitors, custom swells them into fees.
The remaining head is that of gratuities: a species of Emolument very liable to Abuse: It may be a Reward for Civility, Favour, or extra service: it may be also the Purchase of undue Preference, Expedition, and, in some cases, of Procrastination: flowing, at first, from the Liberality of Opulence, the Ostentation of Vanity, or the design of cunning, it very soon assumes the name of Custom, and becomes a claim, submitted to, to avoid the imputation of pg 384meanness, and frequently to the great inconvenience of contracted circumstances:
So, at the charge of the public.
nor is it confined to individuals only; the Public pay their share: In the payments out of the deductions of Twelve pence in the pound, there are two articles, making six hundred fifty three pounds twelve shillings and eight pence, distributed by the Paymaster General of the Forces in Gratuities: The Public voice unites with that of Individuals, in demanding a suppression of a species of Emolument so easily perverted to purposes injurious to the Interest of both.
By fees, functionary interested in making delay: delay a necessary and actual consequence.
. . . . During the time the Treasurer or Paymaster General has continued in office, not one of his year's accounts has ever been made up; and it has been the Interest of the officers not to make them up: if they had, it must have been considered as part of their official Business, and paid for by their yearly emoluments; but by delaying it for ten or fifteen Vears, they crave, on the ground of custom, and obtain of the Treasury, a special allowance for this business, as for extra service they were not bound to perform.
Fees in a special instance reprobated.
Vol. II. p. 78.1 The proper payment for this Clerk is a salary only. The acceptance of any Fee, Gratuity, or other Reward, ought to be strictly prohibited.
Honor of government etc.
It is not for the honor of Government that his Majesty's Bounty should be curtailed by Gratuities and Fees of Office: no part is to be intercepted: it should pass to the Object as liberally and as entire as it flows from the Royal Beneficence.
Greatest happiness principle.
Vol. II. p. 134.2 The principle which gives existence to and governs every public office, is the Benefit of the State. . . .
pg 385Public interest paramount to private.
The officer has Powers delegated to him necessary for the Execution: but he has no other right than to the reward of his Labour: He has no right to any specific quantity of business: that quantity must fluctuate according to circumstances, or may be regulated by the convenience of the State.
Public interest paramount to private.
Vol. II. p. 135. Hence, in every proposed official Regulation, the advantage or disadvantage of the officer can never be properly a subject of Discussion; the only question is, whether the necessity or good of the State actually requires it?
One fixt Salary alone should be substituted to all partial salaries, fees and gratuities.
Vol. II. p. 186.1 The profits of the Auditors of the Imprest rise in proportion to the increase of the Public Distress. Upon these reasons we ground our opinion that the Public Good requires that all Fees and Gratuities in the Office of the Auditors of the Imprest should be forthwith abolished; that the Profits of the auditors themselves should be reduced to a reasonable standard: and that every officer and Clerk in the said office should be paid, by the public, a certain fixed annual salary, in proportion to his Rank and Employment, in lieu of all Salaries, Fees and Gratuities whatsoever:
Vested rights should not be withstanding.
And we continue to adhere to the opinion we have stated in our last Report, seeing no reason to depart from it, That no Right is vested in the Auditor, either by the Letters Patent by which he holds his office, or by usage, that can be opposed to this Reduction and Regulation.
Payment by fees is capable of being made an instrument of delay or undue dispatch, therefore ought to be abolished.
Vol. II. p. 184. The allowance of the Auditor being necessary to every article both of the Receipt and Expenditure, the State of the account, as between the Public and the accountant, must continue unknown until the Balance is ascertained by the Auditor at the completion of his Examination: and consequently, that Balance, however great it may be, if in favour of the Public, pg 386remains with the accountant: if in favour of the accountant, remains with the public, until that period. Hence it may be the interest of the accountant to purchase, at a high price, either delay or Expedition in passing his accounts; and, should an officer be corrupt, the permission to receive fees and gratuities is an obvious method to obtain it: and therefore we are of opinion, that the payment of Fees and gratuities by the person accounting, however confined by usage as to the quantum, is a mode ill adapted to the constitution of this Office, and to the Nature of the Business there transacted.
Where abuse is probable, reform should not wait actual instances. Prevention is better than cure.
We do not say or mean to insinuate, that we have discovered any instance of such abuse in this Office; but the mode is open to it: and a wise Government does not wait for the mischief: It guards, as far as human prudence can ; guard, against the possibility of the Evil: it prevents or removes the Temptation.
§9. Complaints of the fee system in British India by the Grand Jury of Calcutta1
§10. Causes of the attachment to the fee system, no proof of its aptitude. Origin of the practice
The arrangement being thus pernicious, quere—to the influence of what causes may the prevalence of it be ascribed?
1. Sinister interest.
2. Vague conception of economy produced by narrow views.
3. Application made of the Imitation principle—subject-matter of imitation, the practice of antient and relatively different times.2
[1.] Cause the 1st. Sinister interest: seat of it, the breasts of all those on whose power the choice between this mode of remuneration and that by salary has all along depended. To such a degree have the existence and the potency of this cause been brought to view, as above, that nothing further in relation to it under this head [will] be, it is supposed, looked for as needful.
pg 387 2. Cause the 2d. Vague conception of economy produced by narrow views.
Seeing an office to which acceptance is given, of the remuneration attached to it, salary or other allowances attached to it at the expence of government—that is to say of the national fund—not making any part, a man concludes that to the public the whole of the remuneration in that shape, paid and received, is so much saved.
Seeing another office in which the remuneration is composed in part of salary, in part of fees, he forms the correspondent inference.
True: if the individuals, the suitors, formed not, any one of them, any part of the public, and if while salary [had]1 no innate tendency to encrease, so neither had self-remuneration by fees.
But, on every occasion the interest of individuals in general, and thence of suitors in particular, should (it may be said) give way to, and in a word be sacrificed to, that of the public at large.
True: upon each occasion, if necessary that one or other should be sacrificed, it is the lesser interest that ought to be sacrificed to the greater, not the greater to the lesser: but where the case is such that both may be promoted, neither sacrificed, this is the course which the greatest happiness principle, and the principles of arithmetic when employed under it, concurr in dictating.
The case in which both interests together are promoted, neither sacrificed, is that in which at the expence of the more extensive, the public interest, out of its profit from the arrangement, compensation fully adequate—rather more than equivalent—is given to the private, the less extensive interest, for the loss sustained by it from that same arrangement.
In so far as the quantities can be ascertained, in compensation for the loss, more rather than less than the exact amount of it should be given to the less extensive interest. Why?—Answer. Because, from the arrangement in question profit is, by the supposition, made by the more extensive interest: and, while by one of two parties profit is made, why profit should not at the same time be made by the other, let him say who regards himself as able.
Supposing both parties alike free, such is the arrangement which, on exhibition and collision of the two interests, would naturally be the result: and wherever power interferes, and comes to be exercised by an all-powerful party over a party incapable of making resistance, the turn of the scale should rather be in favour of the weaker party: lest in the minds of the similarly situated, the sense of security should be shaken, and thence to a proportionable amount the evil of the 2d. pg 388order (to wit danger and alarm) be produced: that evil—in the avoidance of which may be seen the sole though so amply sufficient reason for securing to every man the possession of, and benefit from, whatever is his own.
Take on each occasion out of the universal fund the quantity of the matter of good requisite to be made over to the functionary, to operate in remuneration of the service on that occasion rendered [by]1 him,— take this course, the conditions above-mentioned are observed: in the burthen of remuneration the suitor in question bears his proportionate and apt share, and from the particular service which on the individual occasion in question he receives the benefit of, he receives the especial benefit which it happens to him to stand in need of.
Under despotic sway, the feelings of individuals form an object too minute to be capable of attracting the regards of the high-seated personages by whom their destiny is disposed of: it is by some vague conception of public good, that is to say the good of the ruling one and the ruling few, that their opinions and conduct are directed: if not their opinions as entertained, at any rate their opinions as professed and expressed.
In France under the ancien regime, when by government land belonging to individuals was taken for the purpose of being converted into a public road, it was for individual losers all of them to reconcile themselves to the loss as they could: to make compensation for the loss was too minute for royal dignity.
Scarcely less effectually beneath the dignity of the Monarch is the care of justice in England than in France. When a criminal suffers the punishment allotted to his crime—when for robbery for example a man is hanged—satisfaction is thereby made to the Monarch for the affront put by it upon his royal dignity: and moreover whatsoever property, if any, belonged to the criminal takes its course into the pocket of the said Monarch or of those to whom he has been pleased to grant the product of this forfeiture. Well, but the individual robbed—who, having suffered this loss, is moreover by this same law saddled with the burthen, personal, temporal and pecuniary, of prosecuting to conviction and delivering evidence. What, to this doubly injured individual, nothing in the way of satisfaction? Oh no: needless, according to Blackstone, is justice in any such shape. Why needless? because (says he) the satisfaction to the public is so very great.2
pg 389Ere as yet from the Bar the learned Judge had stept up to the Bench, had it occurred to his several Clients to pay into the Royal treasury the fees employed in remuneration of his professional services instead of delivering them into the hands of his Clerk, would this arrangement have to his feelings been a satisfactory one? Be this as it may, it would have been still more flagrantly hostile to justice than in the other case.
In whatever place you see dignity, especially dignity in company with crown—in a word royal dignity, think not in that place to see justice.
Thus again in the case of costs. Payment of costs is beneath royal dignity: so moreover to receive them. The word dignity, a word which follows the word crown and the word royal, constituted in the mind of Blackstone a compleat justification for whatever arrangement he saw his convenience in hanging it to.1
The case is of the number of those in which an accusation or other demand made in a course of judicial enquiry has by the competent authority been pronounced ungrounded, and, by reason of the burthen cast on the defendant in the shape of expence and vexation, injurious. For this infliction, were the wrongdoer an individual, he would, in so far as able, be compelled (such at least is what is professed) to make compensation such as is regarded, or professed to be regarded, as adequate. But instead of being an individual, and as such under the law, being the ruling one, and as such above the law, no compensation—not a tittle of satisfaction in any shape—will he make. No, nor ought he (declares Blackstone in the lesson of morality delivered to young Students). No, nor ought he. Indeed why need he? For as the God which is in heaven is unable to committ sin, so is his Vicegerent here upon earth under the correspondent and godlike incapacity of doing wrong.2 Under the like incapacity is the weathercock— under the like incapacity of going against the wind. Why? because whithersoever the wind turns, the weathercock turns along with it.
According to the congenial and corresponding notion entertained concerning justice or, what is still more amiable if not respectable, Equity, neither does his Majesty receive costs: for this too is beneath his royal dignity. Beneath this same dignity to receive from the maleficent compensation for this part of the evil produced by their maleficence? Why so! Beneath this same dignity it never is to receive pg 390money to the utmost amount capable of being exacted from individuals to whom no maleficence in any shape is so much as imputed.
These are among the arcana imperii.1 But the time for pervulgation is now come.
[1.] First as to the needlessness of satisfaction to any party wronged by the loss, coupled with the needfulness of it to the party by whom no wrong, no loss, had been sustained.
Dulcis odor lucri ex re qualibet.2
Under the advice and by the hands of English lawyers, this maxim, ascribed to a Roman Emperor, has at all [times] and upon the largest scale been established, avowed and acted upon for the benefit of English Monarchs (themselves not forgotten) by English lawyers. No laystall so foul that to extract money out of it the lawyers scrupled to rake into it. By means of the law of forfeitures so assiduously and fondly cultivated by Chancellor York, profit to the common father was made to grow out of the loss to his beloved children: the sever!er] the loss on the one part, the richer the profit on the other. Crimes were accordingly sown—sown by the hand of this common father—sown that forfeitures might be reaped.3
By the hand of the par nobile fratrum4—Empson and Dudley,5 the reign, nor that a short one, of the only Monarch who had not been prodigal (for Elizabeth was a Queen)6 was employed in this mode of culture. Employed, and with such success, as sufficed to render Henry the seventh the richest of all Monarchs by whom society was ever afflicted; and to enable his son and successor to be the most profuse: extending to immovables the rapine exercised by his father pg 391upon moveable property: and in so doing, and for the purpose of so doing, planting the reformation and begetting upon the Church of Rome the richest and most illustrious of all her daughters, the Church of England.
2. Secondly as to the not paying costs. It is more blessed (says the most exalted authority) to give than to receive.1 True. But it is more convenient to receive than to give. Sums equal, it is still more convenient to avoid giving. His Majesty paid no costs: why? because he would not: and his Majesty being Lord of all—Sovereign Lord, means of compelling him to pay money there were none. By compelling others to pay money, he and his got money for themselves: but by compelling themselves or one another to pay money, no money was to be got. By the forfeiture the whole property was already transferred to the proper coffers: without much prejudice to good economy, magnanimity was thus displayed by the forbearance which left untouched each part.
3. Thirdly and lastly, as to the not receiving costs. For abstinence in this form in the case of treason and felony the best reason imaginable had place: and in the good old times, when the star of ancestor wisdom shone brightest, these cases were by far the richest: and were as numerous as industry in the hands of power could cause them to be.2
§11. Insufficiency of the conception brought to view in support of the fee System—supposed production of alacrity on the part of the functionary3pg 392
a For the existence of this instrument of economy and security against abuse, the community was indebted to the then Earl of Shelburne, afterwards first Marquis of Lansdowne.2 'Accounts can not be too public' is an aphorism inserted by him, in the course of his too short Premiership, into the King's Speech.3 Having in early youth a distinguished place in the perfect favour of George the third, this was one use he made of it. For throughout the whole field of legislation his affections were on the side of the subject many: in one word, he was a radical. Throughout, and in particular in relation to economy, he was what Edmund Burke pretended to be. That, in this part of the field, Burke was an impostor—a purposed betrayer of the cause he pretended to advocate—is shewn in the tract N° IV]4 intituled Defence of Economy against Burke2 Edmund Burke being the organ, and in respect of talent and acquirements the grand support, of the particular and sinister interest of the ruling few, Whigs as well as Tories, and Shelburne not having in either House any party for his support, and moreover, in advocating the interest of the subject many, in effect counteracting the particular and sinister interest of the ruling one—a truth of which George the third could not fail to have sooner or later a perception—the fall of the only friend the people ever had in that situation was a speedy and necessary consequence. In the House of Commons he was outvoted:3 and the subject many, for supporting whose cause he was sacrificed, were not at that time far enough advanced in moral strength to give him their support.
a In the reprinting of these extracts the order pursued is—what may be termed the logical order: namely that which presented itself as best adapted to the purpose of conception: the preference being given to this order as compared with the chronological order, as deduced from the consideration of the times at which it happened to the general observations to be called forth by particular branches of the subject matter. Those which here follow in the first place, occupy the last place in the Official work, and present accordingly the result of the reflections in their matured state.4