Justice Fees from Gifts to Gratisby Adam Smith
55 The second period of society is the age of shepherds where the inequality of fortune first begins.
- introduces a new degree of authority and subordination through a civil government
- contributes very much to maintain and secure that authority.
The rich need to secure their own advantages and so they support a government.
- Poorer men combine to defend the property of richer men so that those richer men may combine to defend the property of the poorer men.
- The inferior shepherds feel that their herd’s security depends on the security of the great shepherd’s herds.
- Their lesser authority depends on his greater authority.
- Their subordination to the great shepherd keeps their inferiors, in turn, subordinate to them.
- They constitute a little nobility.
- They support their sovereign so that he can defend their property and support their own authority.
Regarding the security of property, civil government is in reality instituted for the defence of the rich against the poor.
56 For a long time, the judicial authority of such a sovereign was his source of revenue.
The persons who applied to him for justice were always willing to pay for it.
- A gift always accompanied a petition.
After the authority of the sovereign was thoroughly established, the person found guilty was forced to pay a fine to:
- the injured party, and
- the sovereign.
A fine was due because:
- he had given trouble, and
- he had disturbed and broke the peace of his king.
In the ancient Mongol, German, Scythian governments, the administration of justice was a big source of revenue to the sovereign and his lesser chiefs.
Originally, they exercised this jurisdiction in their own persons.
- Afterwards, they universally found it convenient to delegate it to some substitute, bailiff, or judge.
- However, this substitute was still obliged to account to his principal or constituent for the profits of the jurisdiction.
The judges of Henry 2nd were itinerant agents sent around the country to levy the king’s revenue.
In those days, the administration of justice afforded a revenue to the sovereign. Procuring this revenue was one of the principal advantages the sovereign obtained by the administration of justice.
Money for Justice
57 This scheme of making a revenue out of the administration of justice was prone to gross abuses.
- The person who applied for justice with a large gift in his hand was likely to get something more than justice.
- The person who applied for it with a small gift was likely to get something less.
- Justice might also be frequently delayed so that this gift might be repeated.
- The fine of the person accused might be a very strong reason for finding him in the wrong even when he was not really so.
Such abuses were common in the ancient history of every European country.
58 It was impossible to get any redress when the sovereign exercised his judicial authority in his own person and abused it.
There could seldom be anybody powerful enough to call the sovereign to account. When the sovereign exercised judicial authority through a bailiff, there might be some redress only the bailiff had been guilty of injustice for the bailiff’s benefit.
The sovereign might be willing:
- to punish him, or
- to oblige him to repair the wrong.
But if the bailiff committed any act of oppression for the sovereign’s benefit, redress would usually be as impossible as if the sovereign had committed it himself.
For a long time, the administration of justice was extremely corrupt in=
- all barbarous governments, and
- all ancient European governments founded on the ruins of the Roman empire.
It was far from being equal and impartial even under the best monarchs. It was altogether profligate under the worst monarchs.
59 Among nations of shepherds, the chief is the greatest shepherd.
- He is maintained by the increase of his own herds just as his subjects are.
Examples of nations of husbandmen who have just come out of the shepherd state were:
- The Greek tribes during the Trojan war, and
- Our German and Scythian ancestors when they first settled on the ruins of the western empire.
The sovereign of such nations was their greatest landlord. He was maintained by:
- a revenue from his own private estate, and
- the demesne of the crown in modern Europe.
His subjects only supported him when they need his protection.
- The gifts they give him on such occasions make up his whole ordinary revenue or emoluments.
In Homer, Agamemnon offers the sovereignty of 7 Greek cities to Achilles for his friendship.
- The sole advantage he mentions was the gifts the people would give him in honour.
- Agamemnon would not have given up such gifts and the fees of court if they were his whole revenue.
- Those value of those gifts were impossible to regulate.
- The corruption of justice naturally resulted from the arbitrary and uncertain nature of those gifts.
- There was no effective remedy to it.
Fixed Salaries for Justice
60 The increasing cost of national defence made the sovereign’s private estate insufficient.
The people were required to contribute taxes for their own security.
- It was commonly stipulated that no gift for the administration of justice should be accepted by the sovereign or his judges, bailiffs, and substitutes.
- Those gifts could more easily be abolished than regulated and ascertained.
This led to fixed salaries for the judges.
- It was supposed to compensate to them for the loss of their ancient fees of justice, in the same way the taxes more than compensated the sovereign for the loss of his own gifts.
- “Justice was then said to be administered gratis.”
61 “Justice never was in reality administered gratis in any country.”
Lawyers and attorneys must always be paid by the parties.
- If not, they would perform their duty worse.
The fees annually paid to lawyers and attorneys are higher than the judges’ salaries.
- The salaries paid by the crown did not much reduce a lawsuit’s cost.
- Judges were prohibited from receiving any gift or fee from the parties to prevent the corruption of justice, not to reduce the cost.
62 The office of judge is so very honourable that men are willing to accept it with very small emoluments.
The inferior office of justice of peace is attended with a good deal of trouble. In most cases, it has no emoluments at all.
It is an object of ambition for most of our country gentlemen. The salaries of all judges and the total cost of the administration and execution of justice makes a very small part of government expences in any civilized country.