revenue might thus be entirely discharged (ness as it could, and was. upon that account, from a certain, though perhaps but a small willing to take cognizance of many suits incumbrance. It is difficult to regulate the which were not originally intended to fall fees of court effectually, where a person so under its jurisdiction. The court of king's powerful as the sovereign is to share in them, bench, instituted for the trial of criminal and to derive any considerable part of his re-causes only, took cognizance of civil suits; venue from them. It is very easy, where the the plaintiff pretending that the defendant, in judge is the principal person who can reap any not doing him justice, had been guilty of benefit from them. The law can very easily some trespass or misdemeanour. The court oblige the judge to respect the regulation, of exchequer, instituted for the levying of the though it might not always be able to make king's revenue, and for enforcing the paythe sovereign respect it. Where the fees of ment of such debts only as were due to the court are precisely regulated and ascertained; king, took cognizance of all other contract where they are paid all at once, at a certain debts; the plantiff alleging that he could not period of every process, into the hands of a pay the king, because the defendant would cashier or receiver, to be by him distributed not pay him. In consequence of such ficin certain known proportions among the tions, it came, in many cases, to depend altodifferent judges after the process is decided, gether upon the parties, before what court and not till it is decided; there seems to be they would choose to have their cause tried, no more danger of corruption than where and each court endeavoured, by superior dissuch fees are prohibited altogether. Those patch and impartiality, to draw to itself as fees, without occasioning any considerable many causes as it could. The present ad. increase in the expense of a law-suit, might mirable constitution of the courts of justice be rendered fully sufficient for defraying the in England was, perhaps, originally, in a whole expense of justice. But not being great measure, formed by this emulation, paid to the judges till the process was deter- which anciently took place between their remined, they might be some incitement to the spective judges: each judge endeavouring to diligence of the court in examining and de- give, in his own court, the speediest and ciding it. In courts which consisted of a most effectual remedy which the law would considerable number of judges, by propor- admit, for every sort of injustice. Origitioning the share of each judge to the number nally, the courts of law gave damages only of hours and days which he had employed in for breach of contract. The court of chanexamining the process, either in the court, or cery, as a court of conscience, first took upon in a committee, by order of the court, those it to enforce the specific performance of fees might give some encouragement to the agreements. When the breach of contract diligence of each particular judge. Public consisted in the non-payment of money, the services are never better performed, than damage sustained could be compensated in when their reward comes only in consequence no other way than by ordering payment, of their being performed, and is proportioned which was equivalent to a specific perforto the diligence employed in performing mance of the agreement. In such cases, them. In the different parliaments of therefore, the remedy of the courts of law France, the fees of court (called epices and was sufficient. It was not so in others. vacations) constitute the far greater part of When the tenant sued his lord for having the emoluments of the judges. After all unjustly outed him of his lease, the damages deductions are made, the neat salary paid by the crown to a counsellor or judge in the parliament of Thoulouse, in rank and dignity the second parliament of the kingdom, amounts only to 150 livres, about L.6. 11s. 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 these epices, too, is according to the diligence of the judges. A diligent judge gains a comfortable, though moderate re- A stamp-duty upon the law proceedings venue, by his office; an idle one gets little of each particular court, to be levied by that more than his salary. Those parliaments court, and applied towards the maintenance are, perhaps, in many respects, not very con- of the judges, and other officers belonging to venient courts of justice; but they have it, might in the samne manner, afford a re never been accused; they seem never even to venue sufficient for defraying the expense of nave been suspected of corruption. the administration of justice, without bring The fees of court seem originally to have ing any burden upon the general revenue of been the principal support of the different the society. The judges, indeed, might in courts of justice in England. Each court this case, be under the temptation of multiendeavoured to draw to itself as much busi-plying unnecessarily the proceedings upon

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.

every cause, in order to increase, as much as therefore, discharged themselves of it, by ap possible, the produce of such a stamp-duty. pointing a deputy, bailiff, or judge. It has been the custom in modern Europe to When the judicial is united to the execu regulate, upon most occasions, the payment tive power, it is scarce possible that justice of the attorneys and clerks of court accord- should not frequently be sacrificed to what is ing to the number of pages which they had vulgarly called politics. The persons enoccasion to write; the court, however, re- trusted with the great interests of the state quiring that each page should contain so may even without any corrupt views, somemany lines, and each line so many words. times imagine it necessary to sacrifice to those In order to increase their payment, the attor- interests the rights of a private man. But neys and clerks have contrived to multiply upon the impartial administration of justice words beyond all necessity, to the corruption depends the liberty of every individual, the of the law language of, I believe, every court sense which he has of his own security. In of justice in Europe. A like temptation order to make every individual feel himself might, perhaps, occasion a like corruption in the form of law proceedings.

perfectly secure in the possession of every right which belongs to him, it is not only necessary that the judicial should be separated from the executive power, but that it should be rendered as much as possible independent of that power. The judge should not be liable to be removed from his office according to the caprice of that power. The regular payment of his salary should not depend upon the good will, or even upon the good economy That fund might arise from the rent of of that power. Note 39. landed estates, the management of each estate being entrusted to the particular court which was to be maintained by it. That

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.

PART III.

fund might arise even from the interest of a

stitutions.

sum of money, the lending out of which of the Expense of public Works and public In 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 third and last duty of the sovereign or commonwealth, is that of erecting and maintaining those public institutions and those public works, which though they may be in the highest degree advantageous to a great society, are, however, of such a nature, that the profit could never repay the expense to any individual, or small number of individuals; and which it, therefore, cannot be expected that any individual, or small number of individuals, should erect or maintain. The performance of this duty requires, too, very different degrees of expense in the dif ferent periods of society.

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 person to whom it was entrusted. The After the public institutions and public person entrusted with the executive power, works necessary for the defence of the society, not having leisure to attend to the decision and for the administration of justice, both or of private causes himself, a deputy was ap- which have already been mentioned, the other pointed to decide them in his stead. In the works and institutions of this kind are chiefly progress of the Roman greatness, the consul for facilitating the commerce of the society, was too much occupied with the political af- and those for promoting the instruction of fairs of the state, to attend to the administra- the people. The institutions for instruction tion of justice. A prætor, therefore, was are of two kinds: those for the education of appointed to administer it in his stead. In the youth, and those for the instruction of the progress of the European monarchies, people of all ages. The consideration of the which were founded upon the ruins of the manner in which the expense of those difRoman empire, the sovereigns and the great ferent sorts of public works and institutions lords came universally to consider the admi- may be most properly defrayed will divide this nistration of justice as an office both too la- third part of the present chapter into three borious and too ignoble for them to execute different articles. in their own persons. They universally,

charged in the price of the goods. As the expense of carriage, however, is very much reduced by means of such public works, the goods, notwithstanding the toll, come cheap. er to the consumer than they could otherwise have done, their price not being so much rais ed by the toll, as it is lowered by the cheapness of the carriage. The person who finally pays this tax, therefore, gains by the application more than he loses by the payment of it. His payment is exactly in proportion to his gain. It is, in reality, no more than a part of that gain which he is obliged to give up, in order to get the rest. It seems impossible to imagine a more equitable method of raising a tax.

THAT the erection and maintenance of the public works which facilitate the commerce of any country, such as good roads, bridges, navigable canals, harbours, &c. must require very different degrees of expense in the different periods of society, is evident without any proof. The expense of making and maintaining the public roads of any country must evidently increase with the annual pro- When the toll upon carriages of luxury, duce of the land and labour of that country, upon coaches, post-chaises, &c. is made or with the quantity and weight of the goods somewhat higher in proportion to their which it becomes necessary to fetch and carry weight, than upon carriages of necessary use, upon those roads. The strength of a bridge such as carts, waggons, &c. the indolence and must be suited to the number and weight of vanity of the rich is made to contribute, in a the carriages which are likely to pass over it. | very easy manner, to the relief of the poor, The depth and the supply of water for a na- by rendering cheaper the transportation of vigable canal must be proportioned to the heavy goods to all the different parts of the number and tonnage of the lighters which country. are likely to carry goods upon it; the extent When high-roads, bridges, canals, &c. are of a harbour, to the number of the shipping in this manner made and supported by the which are likely to take shelter in it. commerce which is carried on by means of

A

It does not seem necessary that the expense them, they can be made only where that of those public works should be defrayed commerce requires them, and, consequently, from that public revenue, as it is commonly where it is proper to make them. Their excalled, of which the collection and applica- pense, too, their grandeur and magnificence, tion are in most countries, assigned to the must be suited to what that commerce can executive power. The greater part of such afford to pay. They must be made, consepublic works may easily be so managed, as to quently, as it is proper to make them. afford a particular revenue, sufficient for de- magnificent high-road cannot be made through fraying their own expense, without bringing a desert country, where there is little or no any burden upon the general revenue of the commerce, or merely because it happens to society. lead to the country villa of the intendant of A highway, a bridge, a navigable canal, for the province, or to that of some great lord, example, may, in most cases, be both made to whom the intendant finds it convenient to and maintained by a small toll upon the car-make his court. A great bridge cannot be riages which make use of them; a harbour, thrown over a river at a place where nobody by a moderate port-duty upon the tonnage of passes, or merely to embellish the view from the shipping which load or unload in it. The coinage, another institution for facilitating commerce, in many countries, not only defrays its own expense, but affords a small revenue or a seignorage to the sovereign. The post-office, another institution for the same In several different parts of Europe, the purpose, over and above defraying its own toll or lock-duty upon a canal is the property expense, affords, in almost all countries, a of private persons, whose private interest very considerable revenue to the sovereign. obliges them to keep up the canal. If it is When the carriages which pass over a high- not kept in tolerable order, the navigation way or a bridge, and the lighters which sail necessarily ceases altogether, and, along with upon a navigable canal, pay toll in proportion it, the whole profit which they can make by to their weight or their tonnage, they pay for the tolls. If those tolls were put under the the maintenance of those public works exactly management of commissioners, who had in proportion to the wear and tear which they themselves no interest in them, they might occasion of them. It seems scarce possible be less attentive to the maintenance of the to invent a more equitable way of maintain- works which produced them. The canal of ing such works. This tax or toll, too, though Languedoc cost the king of France and the it is advanced by the carrier, is finally paid province upwards of thirteen millions of livres, by the consumer, to whom it must always be which (at twenty-eight livres the mark of sil

the windows of a neighbouring palace; things which sometimes happen in countries, where works of this kind are carried on by any other revenue than that which they themselves are capable of affording.

ver, the value of French money in the end own hands, and by employing the soldiers of the last century) amounted to upwards of who would work for a very small addition to nine hundred thousand pounds sterling. their pay, could keep the roads in good order, When that great work was finished, the most at a much less expense than it can be done by likely method, it was found, of keeping it in trustees, who have no other workmen to emconstant repair, was to make a present of the ploy, but such as derive their whole subsisttolls to Riquet, the engineer who planned ence from their wages. A great revenue, and conducted the work. Those tolls con- half a million, perhaps, it has been pretendstitute, at present, a very large estate to the ed, might in this manner be gained, without different branches of the family of that gen-laying any new burden upon the people; and tleman, who have, therefore, a great interest the turnpike roads might be made to contri. to keep the work in constant repair. But had bute to the general expense of the state, in those tolls been put under the management the same manner as the post-office does at of commissioners, who had no such interest, present. they might perhaps, have been dissipated in That a considerable revenue might be gainornamental and unnecessary expenses, while ed in this manner, I have no doubt, though the most essential parts of the works were al-probably not near so much as the projectors lowed to go to ruin. of this plan have supposed. The plan itself, The tolls for the maintenance of a high- however, seems liable to several very impor. road cannot, with any safety, be made the tant objections.

property of private persons. A high-road, First, If the tolls which are levied at the though entirely neglected, does not become turnpikes should ever be considered as one of altogether impassable, though a canal does. the resources for supplying the exigencies of The proprietors of the tolls upon a high-road, the state, they would certainly be augmented therefore, might neglect altogether the repair as those exigencies were supposed to require. of the road, and yet continue to levy very According to the policy of Great Britain, nearly the same tolls. It is proper, therefore, therefore, they would probably be augmented that the tolls for the maintenance of such a work should be put under the management of commissioners or trustees.

very fast. The facility with which a great revenue could be drawn from them, would probably encourage administration to recur In Great Britain, the abuses which the very frequently to this resource. Though it trustees have committed in the management may, perhaps, be more than doubtful, whe. of those tolls, have, in many cases, been very ther half a million could by any economy be justly complained of. At many turnpikes, saved out of the present tolls, it can scarcely it has been said, the money levied is more be doubted, but that a million might be saved than double of what is necessary for execut-out of them, if they were doubled; and pering, in the completest manner, the work, haps two millions, if they were tripled. This which is often executed in a very slovenly great revenue, too, might be levied without manner, and sometimes not executed at all. the appointment of a single new officer to colThe system of repairing the high-roads by lect and receive it. But the turnpike tolls, tolls of this kind, it must be observed, is not being continually augmented in this manner, of very long standng. We should not wonder, instead of facilitating the inland commerce of therefore, if it has not yet been brought to the country, as at present, would soon bethat degree of perfection of which it seems come a very great incumbrance upon it. The capable. If mean and improper persons are expense of transporting all heavy goods from frequently appointed trustees; and if proper one part of the country to another, would courts of inspection and account have not yet soon be so much increased, the market for been established for controuling their conduct, all such goods, consequently, would soon be and for reducing the tolls to what is barely so much narrowed, that their production sufficient for executing the work to be done would be in a great measure discouraged. by them; the recency of the institution both and the most important branches of the doaccounts and apologizes for those defects, of mestic industry of the country annihilated alwhich, by the wisdom of parliament, the together. greater part may, in due time, be gradually Secondly, A tax upon carriages, in proremedied. portion to their weight, though a very equal The money levied at the different turnpikes tax when applied to the sole purpose of rein Great Britain, is supposed to exceed so pairing the roads, is a very unequal one when much what is necessary for repairing the roads, that the savings which, with proper economy, might be made from it, have been I considered, even by some ministers, as a very great resource, which might, at some time or another, be applied to the exigencies of the Government, it has been said, by taking the management of the turnpikes into its

state.

* Since publishing the two first editions of this book, have got good reasons to believe that all the turnpike venue that amounts to half a million; a sum whiche tolls levied in Great Britain do not produce a neat re under the management of government, would not be sufficient to keep in repair five of the principal roads in the kingdom.

I have now good reason to believe that all these coniectural sums are by much too large.

applied to any other purpose, or to supply | which is destined for any public purpose. In the common exigencies of the state. When France, however, the great post-roads, the

it is applied to the sole purpose above mentioned, each carriage is supposed to pay exactly for the wear and tear which that carriage occasions of the roads. But when it is applied to any other purpose, each carriage is supposed to pay for more than that wear and tear, and contributes to the supply of some other exigency of the state. But as the turnpike toll raises the price of goods in proportion to their weight and not to their value, it is chiefly paid by the consumers of coarse and bulky, not by those of precious and light commodities. Whatever exigency of the state, therefore, this tax might be intended to supply, that exigency would be chiefly supplied at the expense of the poor, not of the rich; at the expense of those who are least able to supply it, not of those who are most able.

roads which make the communication between the principal towns of the kingdom, are in general kept in good order; and, in some provinces, are even a good deal superior to the greater part of the turnpike roads of England. But what we call the cross roads, that is, the far greater part of the roads in the country, are entirely neglected, and are in many places absolutely impassable for any heavy carriage. In some places it is even dangerous to travel on horseback, and mules are the only conveyance which can safely be trusted. The proud minister of an ostentatious court, may frequently take pleasure in executing a work of splendour and magnificence, such as a great highway, which is fre quently seen by the principal nobility, whose applauses not only flatter his vanity, but even contribute to support his interest at court. But to execute a great number of little works, in which nothing that can be done can make any great appearance, or excite the smallest degree of admiration in any traveller, and which, in short, have nothing to recommend them but their extreme utility, is a business which appears, in every respect, too mean and paltry to merit the attention of so great a magistrate. Under such an administration, therefore, such works are almost always entirely neglected.

Thirdly, If government should at any time neglect the reparation of the high-roads, it would be still more difficult, than it is at present, to compel the proper application of any part of the turnpike tolls. A large revenue might thus be levied upon the people, without any part of it being applied to the only purpose to which a revenue levied in this manner ought ever to be applied. If the meanness and poverty of the trustees of turnpike roads render it sometimes difficult, at present, to oblige them to repair their wrong; In China, and in several other governments their wealth and greatness would render it of Asia, the executive power charges itself ten times more so in the case which is here both with the reparation of the high-roads, supposed. and with the maintenance of the navigable In France, the funds destined for the re-canals. In the instructions which are given paration of the high-roads are under the immediate direction of the executive power. Those funds consist, partly in a certain number of days labour, which the country people are in most parts of Europe obliged to give to the reparation of the highways; and partly in such a portion of the general revenue of the state as the king chooses to spare from his other expenses.

to the governor of each province, those objects, it is said, are constantly recommended to him, and the judgment which the court forms of his conduct is very much regulated by the attention which he appears to have paid to this part of his instructions. This branch of public police, accordingly, is said to be very much attended to in all those countries, but particularly in China, where the high-roads, By the ancient law of France, as well as and still more the navigable canals, it is preby that of most other parts of Europe, the tended, exceed very much every thing of the labour of the country people was under the same kind which is known in Europe. The direction of a local or provincial magistracy, accounts of those works, however, which have which had no immediate dependency upon been transmitted to Europe, have generally the king's council. But, by the present been drawn up by weak and wondering trapractice, both the labour of the country peo-vellers; frequently by stupid and lying mis. ple, and whatever other fund the king may sionaries. If they had been examined by choose to assign for the reparation of the more intelligent eyes, and if the accounts of high-roads in any particular province or ge- them had been reported by more faithful nerality, are entirely under the management witnesses, they would not, perhaps, appear to of the intendant; an officer who is appointed be so wonderful. The account which Berand removed by the king's council who re- nier gives of some works of this kind in ceives his orders from it, and is in constant Indostan, falls very short of what had been correspondence with it. In the progress of reported of them by other travellers, more despotism, the authority of the executive disposed to the marvellous than he was. power gradually absorbs that of every other may too, perhaps, be in those countries, as it power in the state, and assumes to itself the is in France, where the great roads, the great management of every branch of revenue communications, which are likely to be the

It