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as the emoluments of justice； or what may be called the fees of
court； constituted in this manner the whole ordinary revenue
which the sovereign derived from his sovereignty； it could not
well be expected； it could not even decently be proposed； that he
should give them up altogether。 It might； and it frequently was
proposed； that he should regulate and ascertain them。 But after
they had been so regulated and ascertained； how to hinder a
person who was all…powerful from extending them beyond those
regulations was still very difficult； not to say impossible。
During the continuance of this state of things； therefore； the
corruption of justice； naturally resulting from the arbitrary and
uncertain nature of those presents； scarce admitted of any
effectual remedy。
But when from different causes； chiefly from the continually
increasing expenses of defending the nation against the invasion
of other nations； the private estate of the sovereign had become
altogether insufficient for defraying the expense of the
sovereignty； and when it had become necessary that the people
should； for their own security； contribute towards this expense
by taxes of different kinds； it seems to have been very commonly
stipulated that no present for the administration of justice
should； under any pretence； be accepted either by the sovereign；
or by his bailiffs and substitutes； the judges。 Those presents；
it seems to have been supposed； could more easily be abolished
altogether than effectually regulated and ascertained。 Fixed
salaries were appointed to the judges； which were supposed to
compensate to them the loss of whatever might have been their
share of the ancient emoluments of justice； as the taxes more
than compensated to the sovereign the loss of his。 Justice was
then said to be administered gratis。
Justice； however； never was in reality administered gratis
in any country。 Lawyers and attorneys； at least； must always be
paid by the parties； and； if they were not； they would perform
their duty still worse than they actually perform it。 The fees
annually paid to lawyers and attorneys amount； in every court； to
a much greater sum than the salaries of the judges。 The
circumstance of those salaries being paid by the crown can
nowhere much diminish the necessary expense of a law…suit。 But it
was not so much to diminish the expense； as to prevent the
corruption of justice； that the judges were prohibited from
receiving any present or fee from the parties。
The office of judge is in itself so very honourable that men
are willing to accept of it； though accompanied with very small
emoluments。 The inferior office of justice of peace； though
attended with a good deal of trouble； and in most cases with no
emoluments at all； is an object of ambition to the greater part
of our country gentlemen。 The salaries of all the different
judges； high and low； together with the whole expense of the
administration and execution of justice； even where it is not
managed with very good economy； makes； in any civilised country；
but a very inconsiderable part of the whole expense of
government。
The whole expense of justice； too； might easily be defrayed
by the fees of court； and； without exposing the administration of
justice to any real hazard of corruption； the public revenue
might thus be discharged from a certain； though； perhaps； but a
small incumbrance。 It is difficult to regulate the fees of court
effectually where a person so powerful as the sovereign is to
share in them； and to derive any considerable part of his revenue
from them。 It is very easy where the judge is the principal
person who can reap any benefit from them。 The law can very
easily oblige the judge to respect the regulation； though it
might not always be able to make the sovereign respect it。 Where
the fees of court are precisely regulated and ascertained； where
they are paid all at once； at a certain period of every process；
into the hands of a cashier or receiver； to be by him distributed
in certain known proportions among the different judges after the
process is decided； and not till it is decided； there seems to be
no more danger of corruption than where such fees are prohibited
altogether。 Those fees； without occasioning any considerable
increase in the expense of a lawsuit； might be rendered fully
sufficient for defraying the whole expense of justice。 By not
being paid to the judges till the process was determined； they
might be some incitement to the diligence of the court in
examining and deciding it。 In courts which consisted of a
considerable number of judges； by proportioning the share of each
judge to the number of hours and days which he had employed in
examining the process； either in the court or in a committee by
order of the court； those fees might give some encouragement to
the diligence of each particular judge。 Public services are never
better performed than when their reward comes only in consequence
of their being performed； and is proportioned to the diligence
employed in performing them。 In the different parliaments of
France； the fees of court （called epices and vacations）
constitute the far greater part of the emoluments of the judges。
After all deductions are made； the net salary paid by the crown
to a counsellor or judge in the Parliament of Toulouse； in rank
and dignity the second parliament of the kingdom； amounts only to
a hundred and fifty livres； about six pounds eleven shillings
sterling a year。 About seven years ago that sum was in the same
place the ordinary yearly wages of a common footman。 The
distribution of those epices； too； is according to the diligence
of the judges。 A diligent judge gains a comfortable； though
moderate； revenue by his office： an idle one gets little more
than his salary。 Those Parliaments are perhaps； in many respects；
not very convenient courts of justice； but they have never been
accused； they seem never even to have been suspected； of
corruption。
The fees of court seem originally to have been the principal
support of the different courts of justice in England。 Each court
endeavoured to draw to itself as much business as it could； and
was； upon that account； willing to take cognisance of many suits
which were not originally intended to fall under its
jurisdiction。 The Court of King's Bench； instituted for the trial
of criminal causes only； took cognisance of civil suits； the
plaintiff pretending that the defendant； in not doing him
justice； had been guilty of some trespass or misdemeanour。 The
Court of Exchequer； instituted for the levying of the king's
revenue； and for enforcing the payment of such debts only as were
due to the king； took cognisance of all other contract debts； the
plaintiff alleging that he could not pay the king because the
defendant would not pay him。 In consequence of such fictions it
came； in many cases； to depend altogether upon the parties before
what court they would choose to have their cause tried； and each
court endeavoured； by superior dispatch and impartiality； to draw
to itself as many causes as it could。 The present admirable
constitution of the courts of justice in England was； perhaps；
originally in a great measure formed by this emulation which
anciently took place between their respective judges； each judge
endeavouring to give； in his own court； the speediest and most
effectual remedy which the law would admit for every sort of
injustice。 Originally the courts of law gave damages only for
breach of contract。 The Court of Chancery； as a court of
conscience； first took upon it to enforce the specific
performance of agreements。 When the breach of contract consisted
in the non…payment of money； the damage sustained could be
compensated in no other way than by ordering payment； which was
equivalent to a specific performance of the agreement。 In such
cases； therefore； the remedy of the courts of law was sufficient。
It was not so in others。 When the tenant sued his lord for having
unjustly outed him of his lease； the damages which he recovered
were by no means equivalent to the possession of the land。 Such
causes； therefore； for some time； went all to the Court of
Chancery； to the no small loss of the courts of law。 It was to
draw back such causes to themselves that the courts of law are
said to have invented the artificial and fictitious Writ of
Ejectment； the most effectual remedy for an unjust outer or
dispossession of land。
A stamp…duty upon the law proceedings of each particular
court； to be levied by that court； and applied towards the
maintenance of the judges and other officers belonging to it；
might； in the same manner； afford revenue sufficient for
defraying the expense of the administration of justice； without
bringing any burden upon the general revenue of the society。 The
judges indeed might； in this case； be under the temptation of
multiplying unnecessa