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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。 A
like 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。
When the judicial is united to the executive power； it is
scarce possible that justice should not frequently be sacrificed
to what is vulgarly called polities。 The persons entrusted with
the great interests of the state may； even without any corrupt
views； sometimes imagine it necessary to sacrifice to those
interests the rights of a private man。 But upon the impartial
administration of justice depends the liberty of every
individual； the sense which he has of his own security。 In order
to make every individual feel himself 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 the good…will or even upon the good
economy payment of his salary should not depend upon of that
power。
PART 3
Of the Expense of Public Works and Public Institutions
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
different periods of society。
After the public institutions and public works necessary for
the defence of the society； and for the administration of
justice； both of which have already been mentioned； the other
works and institutions of this kind are chiefly those for
facilitating the commerce of the society； and those for promoting
the instruction of the people。 The institutions for instruction
are of two kinds：