Chapter 1 Part 2c

Justice Fees from Gifts to Gratis

by Adam Smith Icon

63 The whole expence of justice might be easily defrayed by the fees of court.

The public revenue might thus be discharged from a small incumbrance without exposing justice to corruption.

When the sovereign has a share in the fees of court, it is:

  • difficult to regulate the fees effectively, and
  • difficult for the sovereign to derive any considerable revenue from them.

It is very easy where the judge is the principal person who can reap any benefit from the fees. The law can very easily oblige the judge to respect the regulation. It might not always be able to make the sovereign respect it.

There is no additional danger of corruption when:

  • the court fees are precisely regulated and ascertained, and
  • the fees are paid all at once in every process into the cashier or receiver.

The fees are distributed by the cashier in known proportions among the judges after the ruling is made, and not before. Those fees do not increase the lawsuit’s cost considerably. It might be enough to defray the total cost of justice.

By not paying the fees to the judges until the process is determined, they might be incited to diligence in examining and deciding it. In courts with many judges, those fees might encourage the diligence of each judge by proportioning the share of each judge to the number of hours and days he examined the process.

“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 French parliaments, the fees of court are called Epicès and vacations. They make up most of the emoluments of the judges. The Toulouse parliament is second in rank and dignity in France. After all the deductions, the net salary paid by the crown to a judge there is only 150 livres, about 1,572 pence a year. Around seven years ago, that was the yearly wage of a common footman in Toulouse. The distribution of those Epicès is also according to the judge’s diligence. A diligent judge gains a comfortable, moderate revenue. An idle one gets little more than his salary. Those parliaments are perhaps not very convenient courts of justice. They were never accused nor suspected of corruption.

64 The court fees were originally the principal support of the English courts of justice.

Each court tried to draw as much business as it could to itself. It was willing to take many suits which did not fall under its jurisdiction. The court of king’s bench was instituted for criminal trials only. It took civil suits. The plaintiff pretended that the defendant was guilty of some crime in not giving him civil justice.

The court of exchequer was instituted to:

  • levy the king’s revenue, and
  • enforce the payment of the debts due to the king.

It took all other suits on contract debts.

The plaintiff alleged that he could not pay the king because the defendant would not pay him. Because of such fictions, the courts came to depend on the parties instead of the people depending on the court. Each court tried to draw to itself as many cases as it could through superior dispatch and impartiality.

The present admirable constitution of the courts of justice in England was, perhaps, originally formed by this emulation which anciently took place between their respective judges.

In his own court, each judge endeavoured to give the speediest and most effective remedy for every sort of injustice. Originally, the courts of law gave damages only for breach of contract. The court of chancery was a court of conscience. It first enforced the specific performance of agreements. When the breach of contract consisted in the non-payment of money, the damage could only be compensated by ordering payment. The payment was equal to a specific performance of the agreement. In such cases, the remedy of the courts of law was sufficient. In other cases, it was insufficient. When the tenant sued his landlord for outing him unjustly of his lease, the damages he recovered were not equal to the possession of the land.

For some time, such causes went all to the court of chancery. It was no small loss of the courts of law. The artificial and fictitious writ of ejectment is the most effective remedy for an unjust dispossession of land. It was invented by the courts of law to draw back such cases to themselves.

65 A stamp-duty on the law proceedings of each court might afford enough revenue to defray the cost of administering justice without burdening the society’s revenue.

It would be levied by that court and paid to maintain its judges and officers. The judges might be tempted to unnecessarily multiply the proceedings on every case to increase the stamp-duty. It was the custom in modern Europe to regulate the payment of the attorneys and clerks of court according to the number of pages they wrote. The court required each page to have a certain number of lines. Each line should have a certain number of words. To increase their payment, the attorneys and clerks contrived to unnecessarily multiply words. It corrupted the law language of every European court of justice. A similar temptation might perhaps create a similar corruption in law proceedings.

66 It is unnecessary that the executive branch should manage the fund for justice.

That fund might come from the rent of landed estates. The management of each estate could be entrusted to the court to be maintained by the estate. That fund might even come from the interest of money. Its lending out could be entrusted to the court to be maintained by the interest earned. A small part of the court judges’ salary in Scotland comes from the interest of money. The instability of such a fund makes it an improper fund to maintain a perpetual institution.

67 The separation of the judicial from the executive power originally arose from the increasing business of society from its increasing improvement.

The administration of justice became so laborious and complicated. It required the undivided attention of the judges and clerks. The executive did not have the leisure to attend to private cases. He appointed a deputy to decide for him. In Rome, the consul was too much occupied with political affairs to attend to the administration of justice. A prætor was appointed to administer it. In the European monarchies after the Roman empire, the sovereigns and great lords universally came to consider the administration of justice as too laborious and ignoble for themselves. They universally appointed a deputy, bailiff, or judge.

68 When the judicial is united to the executive power, justice is frequently sacrificed to polities.

Even without any corrupt views, the executive might think it necessary to sacrifice the rights of a private man to the interests of the state. The liberty of every person depends on the impartial administration of justice. To make every person feel perfectly secure in his rights, the judicial must be separated and made independent from the executive power The judge should not be liable to be removed according to the caprice of that executive power. His salary should not depend on the goodwill or even on the good economy of that power.


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