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 expenses 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 civilised 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 revenue might thus be 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 lawsuit, might be rendered fully sufficient for defraying the whole expense of justice.By 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 net salary paid by the crown to a counsellor or judge in the Parliament of Toulouse, in rank and dignity the second parliament of the kingdom, amounts only to a hundred and fifty livres, about six pounds eleven shillings 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 those 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.