revenue might thus be entirely 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 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 L.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 distribution
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 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 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 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
by 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