An Inquiry into the Nature and Causes of the Wealth of Nations by Adam Smith (ebook reader with highlighter txt) 📖

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 when such fees are prohibited

altogether. Those fees, without occasioning any considerable

increase in the expense of a law-suit, might be rendered fully

sufficient for defraying the whole expense of justice. But

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 neat salary paid

by the crown to a counsellor or judge in the parliament of

Thoulouse. in rank and dignity the second parliament of the

kingdom, amounts only to 150 livres, about �6:11s. sterling

a-year. About seven years ago, that sum was in the same place the

ordinary yearly wages of a common footman. The distribuion of

these 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 originaliy 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 cognizance 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 cognizance 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 cognizance of all other contract debts ;

the plantiff 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 a 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 unnecessarily the proceedings upon every cause, in

order to increase, as much as possible, the produce of such a

stamp-duty. It has been the custom in modern Europe to regulate,

upon most occasions, the payment of the attorneys and clerks of

court according to the number of pages which they had occasion to

write; the court, however, requiring that each page should

contain so many lines, and each line so many words. In order to

increase their payment, the attorneys and clerks have contrived

to multiply words beyond all necessity, to the corruption of the

law language of, I believe, every court of justice in Europe.

A like temptation might, perhaps, occasion a like corruption in

the form of law proceedings.

 

But whether the administration of justice be so contrived as to

defray its own expense, or whether the judges be maintained by

fixed salaries paid to them from some other fund, it does not

seen necessary that the person or persons entrusted with the

executive power should be charged with the management of that

fund, or with the payment of those salaries. That fund might

arise from the rent of landed estates, the management of each

estate being entrusted to the particular court which was to be

maintained by it. That fund might arise even from the

interest of a sum of money, the lending out of which might, in

the same manner, be entrusted to the court which was to be

maintained by it. A part, though indeed but a small part of the

salary of the judges of the court of session in Scotland, arises

from the interest of a sum of money. The necessary instability of

such a fund seems, however, to render it an improper one for the

maintenance of an institution which ought to last for ever.

 

The separation of the judicial from the executive power, seems

originally to have arisen from the increasing business of the

society, in consequence of its increasing improvement. The

administration of justice became so laborious and so complicated

a duty, as to require the undivided attention of the person to

whom it was entrusted. The person entrusted with the executive

power, not having leisure to attend to the decision of private

causes himself, a deputy was appointed to decide them in his

stead. In the progress of the Roman greatness, the consul was too

much occupied with the political affairs of the state, to attend

to the administration of justice. A praetor, therefore, was

appointed to administer it in his stead. In the progress of the

European monarchies, which were founded upon the ruins of the

Roman empire, the sovereigns and the great lords came universally

to consider the administration of justice as an office both too

laborious and too ignoble for them to execute in their own

persons. They universally, therefore, discharged themselves of

it, by appointing a deputy, bailiff or judge.

 

When the judicial is united to the executive power, it is scarce

possible that justice should not frequently be sacrificed to what

is vulgarly called politics. The persons entrusted with the

great interests of the state may even without any corrupt views,

sometimes imagine it necessary to sacrifice to those interests

the rights of a private man. But upon the impartial

administration of justice depends the liberty of every

individual, the sense which he has of his own security. In order

to make every individual feel himself perfectly secure in the

possession of every right which belongs to him, it is not only

necessary that the judicial should be separated from the

executive power, but that it should be rendered as much as

possible independent of that power. The judge should not be

liable to be removed from his office according to the caprice of

that power. The regular payment of his salary should not depend

upon the good will, or even upon the good economy of that power.

 

PART III.

 

Of the Expense of public Works and public Institutions.

 

The third and last duty of the sovereign or commonwealth, is that

of erecting and maintaining those public institutions and those

public works, which though they may be in the highest degree

advantageous to a great society, are, however, of such a nature,

that the profit could never repay the expense to any individual,

or small number of individuals; and which it, therefore, cannot

be expected that any individual, or small number of individuals,

should erect or maintain. The performance of this duty requires,

too, very different degrees of expense in the different periods

of society.

 

After the public institutions and public works necessary for the

defence of the socicty, and for the administration of justice,

both of which have already been mentioned, the other works and

institutions of this kind are chiefly for facilitating the

commerce of the society, and those for promoting the instruction

of the people. The institutions for instruction are of two kinds:

those for the education of the youth, and those for the

instruction of people of all ages. The consideration of the

manner in which the expense of those different sorts of public

works and institutions may be most properly defrayed will divide

this third part of the present chapter into three different

articles.

 

ARTICLE I. - Of the public Works and Institutions for

facilitating the Commerce of the Society.

 

And, first, of those which are necessary for facilitating

Commerce in general.

 

That the erection and maintenance of the public works which

facilitate the commerce of any country, such as good roads,

bridges, navigable canals, harbours, etc. must require very

different degrees of expense in the different periods of society,

is evident without any proof. The expense of making and

maintaining the public roads of any country must evidently

increase with the annual produce of the land and labour of that

country, or with the quantity and weight of the goods which it

becomes necessary to fetch and carry upon those roads. The

strength of a bridge must be suited to the number and weight of

the carriages which are likely to pass over it. The depth and the

supply of water for a navigable canal must be proportioned to the

number and tonnage of the lighters which are likely to carry

goods upon it; the extent of a harbour, to the number of the

shipping which are likely to take shelter in it.

 

It does not seem necessary that the expense of those public works

should be defrayed from that public revenue, as it is commonly

called, of which the collection and application are in most

countries, assigned to the executive power. The greater part of

such public works may easily be so managed, as to afford a

particular revenue, sufficient for defraying their own expense

without bringing any burden upon the general revenue of the

society.

 

A highway, a bridge, a navigable canal, for example, may, in most

cases, be both made add maintained by a small toll upon the

carriages which make use