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 cognisance 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 cognisance 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 cognisance 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 of 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 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 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.Alike 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 persons 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 praetor, 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.