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 seem 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 prætor, 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 society,
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.