only, that the bailiff had been guilty of
an act of injustice, the sovereign himself might
not always be unwilling to punish him, or to
oblige him to repair the wrong. But if it
was for the benefit of his sovereign; if it was
in order to make court to the person who appointed
him, and who might prefer him, that
he had committed any act of oppression; redress
would, upon most occasions be as impossible
as if the sovereign had committed it
himself. In all barbarous governments, accordingly,
in all those ancient governments of
Europe in particular, which were founded
upon the ruins of the Roman empire, the administration
of justice appears for a long time
to have been extremely corrupt; far from being
quite equal and impartial, even under the
best monarchs, and altogether profligate under
the worst.
Among nations of shepherds, where the sovereign
or chief is only the greatest shepherd
or herdsman of the horde or clan, he is maintained
in the same manner as any of his vassals
or subjects, by the increase of his own
herds or flocks. Among those nations of husbandmen,
who are but just come out of the
shepherd state, and who are not much advanced
beyond that state, such as the Greek
tribes appear to have been about the time of
the Trojan war, and our German and Scythian
ancestors, when they first settled upon the
ruins of the western empire; the sovereign
or chief is, in the same manner, only the
greatest landlord of the country, and is maintained
in the same manner as any other landlord,
by a revenue derived from his own private
estate, or from what, in modern Europe,
was called the demesne of the crown. His
subjects, upon ordinary occasions, contribute
nothing to his support, except when, in order
to protect them from the oppression of some
of their fellow-subjects, they stand in need of
his authority. The presents which they make
him upon such occasions constitute the whole
ordinary revenue, the whole of the emoluments
which, except, perhaps, upon some very
extraordinary emergencies, he derives from
his dominion over them. When Agamemnon,
in Homer, offers to Achilles, for his friendship,
the sovereignty of seven Greek cities, the sole
advantage which he mentions as likely to be
derived from it was, that the people would
honour him with presents. As long as such
presents, as long 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 then. 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 expense 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 civilized 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