Book V, Chapter I, 5

The office of judge is in itself so honorable that people are willing to accept it even with very small compensation. The lesser office of justice of the peace, though involving a good deal of trouble and usually bringing no compensation at all, is sought by most of our country gentlemen. The salaries of all the judges, high and low, together with the entire expense of administering and enforcing justice, amount in any civilized country to only a very small part of the total expense of government, even where they are not managed very economically.

The entire expense of justice, moreover, could easily be met by court fees; and without exposing its administration to any real danger of corruption, public revenue could thus be relieved entirely of a certain burden, though perhaps a small one. It is difficult to regulate court fees effectively when someone as powerful as the sovereign has a share in them and derives any considerable part of his revenue from them. It is very easy when the judge is the chief beneficiary. The law can very easily compel a judge to respect the regulation, though it might not always be able to compel the sovereign to do so. Where court fees are precisely regulated and fixed, and paid all at once at a specified stage of each case into the hands of a cashier or receiver, to be distributed by him in known proportions among the judges only after the case is decided, there seems no more danger of corruption than if such fees were prohibited altogether. These fees could be made fully sufficient to meet the whole expense of justice without significantly increasing the expense of a lawsuit. Since they would not be paid to the judges until the case was decided, they might encourage the court to examine and decide it diligently. In courts consisting of a considerable number of judges, if each judge's share were proportioned to the hours and days he spent examining the case, either in court or in a committee appointed by it, these fees might encourage each judge's diligence. Public services are never better performed than when payment follows their performance and is proportioned to the diligence with which they are performed. In the various parliaments of France, court fees (called epices and vacations) constitute by far the greater part of the judges' compensation. After all deductions, the net salary paid by the crown to a counselor or judge in the parliament of Thoulouse, the kingdom's second parliament in rank and dignity, amounts to only 150 livres, about £6:11s. sterling a year. About seven years ago, this sum was the ordinary yearly wage of a common footman in the same place. These epices, moreover, are distributed according to the judges' diligence. A diligent judge earns a comfortable, though moderate, income from his office; an idle one receives little more than his salary. Those parliaments are perhaps in many respects not very convenient courts of justice, but they have never been accused—or even, it seems, suspected—of corruption.

Court fees seem originally to have been the chief support of the different courts of justice in England. Each court tried to attract as much business as possible and was therefore willing to hear many suits not originally intended to fall within its jurisdiction. The court of king's bench, established solely for criminal cases, took up civil suits when the plaintiff pretended that the defendant, by failing to do him justice, had committed some trespass or misdemeanor. The court of exchequer, established to collect the king's revenue and enforce payment only of debts owed to the king, took up all other contract debts when the plaintiff alleged that he could not pay the king because the defendant would not pay him. Through such fictions, in many cases the parties could decide entirely for themselves which court should try their case, and each court tried to attract as many cases as it could by greater speed and impartiality. The present admirable constitution of England's courts of justice was perhaps originally shaped to a great extent by this rivalry among their judges: each judge strove in his own court to provide the quickest and most effective remedy the law allowed for every kind of injustice. Originally the courts of law awarded damages only for breach of contract. The court of chancery, acting as a court of conscience, was the first to undertake to enforce the specific performance of agreements. When a breach of contract consisted of failure to pay money, the resulting damage could be remedied only by ordering payment, equivalent to specific performance of the agreement. In such cases the remedy offered by the courts of law was sufficient. In others it was not. When a tenant sued his lord for unjustly evicting him from his lease, the damages he recovered were by no means equivalent to possession of the land. For some time, therefore, all such cases went to the court of chancery, to the considerable loss of the courts of law. To draw such cases back to themselves, the courts of law are said to have invented the artificial and fictitious writ of ejectment, the most effective remedy for unjust eviction or dispossession from land.

A stamp duty on the legal proceedings of each particular court, collected by that court and applied to the maintenance of its judges and other officers, might likewise provide revenue sufficient to meet the expense of administering justice without burdening society's general revenue. In this case, however, the judges might be tempted to multiply the proceedings in every case unnecessarily so as to increase the yield from the stamp duty as much as possible. In modern Europe it has usually been customary to set the payment of attorneys and court clerks according to the number of pages they had to write, while requiring each page to contain a specified number of lines and each line a specified number of words. To increase their payment, attorneys and clerks have contrived to multiply words beyond all necessity, corrupting the language of the law in, I believe, every European court of justice. A similar temptation might perhaps bring about a similar corruption in the form of legal proceedings.

But whether the administration of justice is arranged to meet its own expense or the judges are maintained on fixed salaries paid from another fund, it does not seem necessary to entrust the management of that fund or the payment of those salaries to those exercising executive power. The fund might come from the rent of landed estates, with management of each estate entrusted to the particular court it supported. It might even come from the interest on a sum of money, with the lending of that money likewise entrusted to the court it supported. Part, though only a small part, of the salaries of the judges of the court of session in Scotland comes from interest on a sum of money. The inevitable instability of such a fund, however, seems to make it unsuitable for maintaining an institution that ought to last forever.

The separation of judicial from executive power seems originally to have arisen from the growing business of society as it developed. Administering justice became so laborious and complicated a duty that it required the undivided attention of the person entrusted with it. The person holding executive power lacked the time to decide private cases himself, so a deputy was appointed to decide them for him. As Roman power grew, the consul was too occupied with the state's political affairs to attend to the administration of justice. A praetor was therefore appointed to administer it in his place. As the European monarchies founded on the ruins of the Roman empire developed, sovereigns and great lords everywhere came to regard administering justice as a task too laborious and too lowly to perform in person. They therefore all freed themselves from it by appointing a deputy, bailiff, or judge.

When judicial and executive power are united, it is hardly possible for justice not to be frequently sacrificed to what is commonly called politics. Those entrusted with the great interests of the state may sometimes imagine, even without corrupt motives, that it is necessary to sacrifice an individual's rights to those interests. But the liberty of every individual, and his sense of his own security, depend on the impartial administration of justice. To make everyone feel completely secure in the possession of every right belonging to him, judicial power must not only be separated from executive power but made as independent of it as possible. A judge should not be removable from office at the whim of the executive. The regular payment of his salary should not depend on its goodwill or even on its sound financial management.

PART III. On the Expense of Public Works and Public Institutions.

The third and last duty of the sovereign or commonwealth is to establish and maintain those public institutions and works which, though they may be of the greatest advantage to a large society, are nevertheless of such a nature that their profits could never repay the cost to an individual or a small number of individuals. One cannot therefore expect any individual or small group to establish or maintain them. Performing this duty also requires very different degrees of expense at different stages of society.

Apart from the public institutions and works necessary to defend society and administer justice, both already discussed, the other works and institutions of this kind serve chiefly to facilitate society's commerce and to promote the instruction of its people. Institutions for instruction are of two kinds: those for the education of youth and those for the instruction of people of all ages. An examination of how the expenses of these different kinds of public works and institutions can most properly be met will divide this third part of the present chapter into three articles.

ARTICLE I.—On Public Works and Institutions for Facilitating Society's Commerce.

First, on those necessary for facilitating commerce in general.

It is evident without proof that establishing and maintaining public works that facilitate a country's commerce, such as good roads, bridges, navigable canals, harbors, etc., must involve very different degrees of expense at different stages of society. The expense of building and maintaining a country's public roads must clearly increase with the annual produce of its land and labor, or with the quantity and weight of goods that must be carried along those roads. A bridge's strength must be suited to the number and weight of vehicles likely to cross it. The depth and water supply of a navigable canal must be proportionate to the number and tonnage of the barges likely to carry goods along it; a harbor's size, to the number of ships likely to seek shelter in it.

It does not seem necessary to meet the cost of these public works from what is commonly called public revenue, whose collection and use are assigned in most countries to executive power. Most such public works can easily be managed so as to provide a dedicated revenue sufficient to meet their own expenses without burdening society's general revenue.

A highway, bridge, or navigable canal, for instance, can in most cases be built and maintained by a small toll on the vehicles that use it; a harbor, by a moderate port duty on the tonnage of ships loading or unloading there. Coinage, another institution facilitating commerce, in many countries not only meets its own expenses but yields a small revenue, or seigniorage, to the sovereign. The post office, another such institution, besides meeting its own expenses, yields a very considerable revenue to the sovereign in almost all countries.

When vehicles crossing a highway or bridge, and barges sailing on a navigable canal, pay tolls proportionate to their weight or tonnage, they pay for the maintenance of these public works exactly in proportion to the wear and tear they cause. It seems hardly possible to devise a more equitable way of maintaining such works. This tax or toll, moreover, though initially paid by the carrier, is ultimately paid by the consumer, who must always be charged for it in the price of the goods. But since the cost of carriage is greatly reduced by such public works, the goods, despite the toll, reach the consumer more cheaply than they otherwise could: the toll raises their price less than cheaper carriage lowers it. The person who ultimately pays this tax therefore gains more from its use than he loses by paying it. His payment is exactly proportionate to his gain. In reality, he is required to surrender only part of that gain in order to enjoy the rest. It seems impossible to imagine a more equitable way of levying a tax. When the toll on luxury vehicles, on coaches, post-chaises, etc., is set somewhat higher in proportion to their weight than on vehicles used for necessities, such as carts, wagons, etc., the idleness and vanity of the rich are made, very easily, to contribute to the relief of the poor by making the transport of heavy goods to every part of the country cheaper.

Being a judge is such an honorable position that people will take the job even for very little pay. The lower position of justice of the peace involves considerable work and usually no pay at all, yet most of our country gentlemen would like to hold it. In any civilized country, all judges’ salaries, high and low, plus the whole cost of administering and enforcing justice, make up only a very small part of government spending. This is true even where the work is not managed particularly efficiently.

Court fees could also easily pay the whole cost of justice. This would remove a definite burden, though perhaps a small one, from public revenue without any real risk of corrupting justice. It is hard to regulate court fees effectively when a ruler powerful enough to ignore the rules receives a share of them and gets a significant part of his income from them. Regulation is much easier if the judge is the main person who benefits. The law can readily make the judge follow the rules, even if it cannot always make the ruler do so. Suppose the fees are set at precise amounts. The parties pay them all at once at a fixed stage in each case to a cashier or receiver. Only after the case is decided does that person divide the money among the judges in fixed, known proportions. Under such rules, there seems to be no more risk of corruption than if the fees were banned outright. Without adding much to the cost of a lawsuit, these fees could fully cover the cost of administering justice. Since judges would not receive the fees until a case ended, the fees might encourage the court to work promptly on examining and deciding it. In a court with many judges, each judge’s share could reflect the hours and days spent examining the case in court or in a committee appointed by the court. That would encourage each judge to be diligent. Public work is done best when people are rewarded only after they do it and in proportion to the effort they put into it. In the different parliaments of France, court fees called epices and vacations make up by far the largest part of judges’ income. After all deductions, the net salary the crown pays a counselor or judge in the parliament of Thoulouse, the second-ranking parliament in the kingdom, is only 150 livres, about £6:11s. sterling a year. About seven years ago, that amount was also the usual annual wage of an ordinary footman there. The epices are also distributed according to how diligently the judges work. A diligent judge earns a comfortable, though modest, income from the office; an idle one gets little more than the salary. Those parliaments may have many shortcomings as courts, but no one has accused them of corruption or apparently even suspected them of it.

Court fees seem originally to have provided most of the income supporting England’s various courts. Each court tried to attract as many cases as it could. So it was willing to hear many cases that had not originally been placed under its authority. The court of king’s bench was set up to try only criminal cases but began hearing civil cases. The plaintiff would claim that the defendant’s failure to do him justice was a trespass or misdemeanor. The court of exchequer was set up to collect the king’s revenue and enforce payment of debts owed to him alone. It began hearing all other cases involving debts under contracts. The plaintiff would claim that he could not pay the king because the defendant had not paid him. These legal fictions often let the parties decide which court would hear their case. Each court then tried to attract cases by handling them more quickly and fairly. This competition between their judges may have largely shaped the present excellent organization of English courts. Each judge tried to give, in his own court, the quickest and most effective remedy the law allowed for every kind of wrong. At first, courts of law awarded only monetary damages for breaking a contract. The court of chancery, which acted as a court of conscience, was the first to require that an agreement actually be carried out. When a contract was broken simply by not paying money, ordering payment fully compensated the harm and was the same as requiring the agreement to be carried out. The courts of law provided a sufficient remedy in those cases, but not in others. When a tenant sued his lord for wrongfully removing him from leased land, the damages awarded were no substitute for possession of the land. For a while, all such cases went to the court of chancery, costing the courts of law considerable business. To draw these cases back, the courts of law are said to have invented the artificial, fictitious writ of ejectment. It was the most effective remedy for wrongful eviction or dispossession of land.

Each court could collect a stamp-duty on its legal proceedings and use it to support its judges and other officers. As with court fees, this could bring in enough to cover the cost of justice without burdening society’s general revenue. But it might tempt judges to add unnecessary steps to every case to raise as much stamp-duty as possible. In modern Europe, it has usually been customary to pay attorneys and court clerks by the number of pages they need to write. Courts set a minimum number of lines for each page and words for each line. To increase their pay, attorneys and clerks have still found ways to use many more words than necessary. I believe this has damaged the language of the law in every European court. A similar incentive might similarly damage legal procedure.

Whether justice pays its own costs or judges receive fixed salaries from another fund, there seems to be no need for the people holding executive power to control the fund or pay the salaries. The money could come from rent on landed estates, with each court managing the estate that pays for it. It could even come from interest on a sum of money, with the court that it supports managing the loans. A small part of the salaries of judges in Scotland’s court of session does come from interest on money. But such a fund is necessarily unstable. That seems to make it unsuitable for supporting an institution meant to last forever.

Judicial and executive power seem to have been separated originally because society’s development created more business. Administering justice became so demanding and complicated that it required the full attention of the person in charge. A person responsible for executive power no longer had time to decide private cases, so a deputy was appointed to do it instead. As Rome grew more powerful, the consul became too busy with affairs of state to administer justice. A praetor was therefore appointed to do that work. As the European monarchies established on the ruins of the Roman empire developed, rulers and great lords everywhere came to regard administering justice as too demanding and too lowly a job to do themselves. So they handed it over to a deputy, bailiff, or judge.

When judicial and executive power belong to the same people, justice can hardly avoid being sacrificed frequently to what people commonly call politics. Those responsible for the state’s major interests may sometimes believe they must sacrifice an individual’s rights to those interests, even without corrupt motives. Yet everyone’s liberty and sense of personal safety depend on the impartial administration of justice. To make each person feel fully secure in every right they hold, judicial power must not only be separate from executive power. It must also be as independent of it as possible. Executive officials should not be able to remove a judge whenever they feel like it. Regular payment of the judge’s salary should not depend on their goodwill or even on how well they manage money.

PART III. The Cost of Public Works and Public Institutions

The ruler’s or commonwealth’s third and last duty is to build and maintain certain public institutions and public works. They can bring tremendous benefits to a large society, but an individual or small group could never earn enough from them to recover the cost. So no individual or small group can be expected to build or maintain them. Carrying out this duty also costs very different amounts at different stages of society.

Public institutions and works needed for defense and justice have already been discussed. Most of the remaining ones make commerce easier or help educate people. Educational institutions are of two kinds: those for educating young people and those for instructing people of all ages. How to pay for these various kinds of public works and institutions will be the subject of the three articles of this third part of the chapter.

ARTICLE I.—Public Works and Institutions That Make Commerce Easier

First, those needed to make commerce easier in general.

It is obvious without proof that building and maintaining works that make a country’s commerce easier, such as good roads, bridges, navigable canals, harbors, and similar works, costs very different amounts at different stages of society. The cost of building and maintaining public roads must rise with the yearly output of the country’s land and labor, or with the quantity and weight of the goods that must be transported on those roads. A bridge must be strong enough for the number and weight of vehicles likely to cross it. A navigable canal needs enough depth and water for the number and tonnage of the cargo boats likely to use it. A harbor must be large enough for the number of ships likely to shelter there.

These works do not seem to need funding from what is usually called public revenue, which in most countries is collected and spent by the executive authorities. Most can easily be run so as to bring in their own revenue, enough to pay for them without burdening society’s general revenue.

For example, a small toll on vehicles using a highway or bridge, or on cargo boats using a navigable canal, can usually pay to build and maintain it. A moderate port-duty based on the tonnage of ships loading or unloading in a harbor can pay for the harbor. Coinage, another institution that helps commerce, not only pays for itself in many countries but also brings the ruler a small income, or seignorage. The post-office serves the same purpose. In almost every country, it pays for itself and brings the ruler a very substantial income besides.

When vehicles crossing a highway or bridge and cargo boats sailing on a navigable canal pay a toll based on their weight or tonnage, their payment for maintaining the works is exactly proportional to the wear and tear they cause. It is hard to imagine a fairer way to maintain them. The carrier pays the tax or toll up front, but the consumer ultimately pays it in the price of the goods. Yet these public works greatly reduce the cost of transporting goods. Even with the toll, the goods reach the consumer more cheaply than they otherwise could. The toll increases their price by less than cheaper transport reduces it. So the person who ultimately pays the tax gains more from the project than the payment costs. The payment is exactly proportional to the gain. It is really just part of the gain that the person must give up to receive the rest. It is hard to imagine a fairer way to collect a tax. Suppose the toll on luxury vehicles, such as coaches and post-chaises, is somewhat higher relative to their weight than the toll on practical vehicles, such as carts and wagons. Then the rich people’s idleness and vanity can easily help the poor by lowering the cost of transporting heavy goods to every part of the country.