the section directing the Legislature to pass laws
reducing and rendering uniform the fees through-
out the whole State met his approval, he should
however vote for the reconsideration, because he
doubted the propriety of giving fixed salaries to
the clerks of the county courts as prescribed in
the first part of the same section. Gentlemen, it
seemed to him, had applied the improper remedy
to relieve the people, when they advocated fixed
salaries. What occasioned the great outcry
against this act of 1826? It was the uncertain,
and excessive rates of charge prescribed in the
schedule of that act. The only remedy thin was
to render certain that which was uncertain, and
to reduce that which was excessive. To do this
your legislation must be directed to the reduction
and uniformity of the fees, and not so much
to the ascertainment of the salary of the officer
A fixed salary is liable to two objections—it
must either be levied upon the people and be ta-
ken from the County Treasury, or it must be paid
from the fees of office. If paid out of the Coun-
ty Treasury it would by no means fall equally
upon all the people. More than two-thirds of
the people of a county upon an average, never en-
ter a court of justice to redress a wrong or to
enforce a right, hence if you levy a tax to pay a
salary to the clerk you oblige this class of per-
sons to contribute towards the expense of law-
suits in which they have no interest or concern.
You make in nine cases out of ten the non-suitor.
who has no interest in the trial of causes, pay
double as much as the suitor who may institute.
or the party who may defend the action. Taxes
should never be levied except for the public
good, and where each and every individual has
an interest in the object for which the tax is re-
quired in proportion to the sum paid in. Now
what interest has an individual in contributing to
pay the salary of an officer whose business it is
to keep the records and proceedings of cases to
which he is no party, an entire stranger, and in
which he has no interest? None whatever. Such
a tax would be manifestly unjust to a large por-
tion of the people of any county; its tendencies
would be to throw open the doors of your courts
of justice for the most trivial causes, and to in-
vite within them the most vicious and litigious
of the community as suitors at the public expense.
This, in his opinion, would be the effect of a
fixed salary, paid out of the public treasury.—
How would it be if paid out of the fees of office?
Gentlemen should recollect that these fees of
office are fluctuating, and are altogether con-
trolled in their amount, by the business of the
courts, in the respective counties. Some years
the amount may be large, greatly exceeding any
salary that may be fixed, whilst at other times
the diminished business of the courts may not
yield a sum sufficient to pay the salary, in the
first case, the fees arising above the salary
would be a fund for the county treasury. This
surplusage would be exacted how? From those
whose misfortune, for misfortune it is at best
had forced them into a court of justice. Not only
would they contribute to pay the expenses of the
court, but you would require of them a tribute |
upon their necessities to distribute for public
purposes. This he conceived unjust towards
suitors, whilst at the same time it would by no
means relieve the people from the payment of
the fees, for when the fees of office are the fund
out of which these salaries are to be paid, a
schedule high enough to meet any anticipated
deficiency in consequence of the reduction of
business, must always be provided. Hence you
must of necessity keep up the rates of fees,
which wee all desire so much to have changed.
What relief would it he to the people of his
county, to fix a salary for the clerk at $1500 or
$2,000 per year, to be paid out of the fees—when
you have in order to pay the salary to keep the
late of fees high, nearly as high as the present
rate? All who know any thing of the character
of the fees arising in courts of justice, know
this. A considerable portion of the fees arise
upon cases that are insolvent, and which it is im-
possible to collect, hence in fixing your rate of
charge, you must assess the fees in solvent cases
high enough to meet any deficiencies growing
out of insolvencies, so that the aggregate sum
collected may cover the salary prescribed for the
officer. The effect of this system, he believed,
would be in the smaller counties, where the business
of the courts were limited, to keep up the
present high charges, without any material
change from the rates fixed in the act of 1826,
which we all condemn. Again: who do you pro-
pose to make the collector of these fees? The
clerk himself. Now, these fees in their collec-
tion, require a great deal of attention and much
labor; and when you offer to the clerk no induce-
ment but his salary to collect them, you at once
offer an inducement to him not to collect beyond
his salary. His word for it, many of these offi-
cers would collect enough to pay themselves,
and the surplusage would never lie collected to
place in the county treasury or anywhere else.
This question of fees, as he before said, was
taken up by the Legislature last winter. As a
member of the committee to which it was re-
ferred, he had given it a great deal of thought
and reflection. It was one attended with much
difficulty, not in lowering the fees, but in fixing
the rates of charge at such a standard, as would
at the same time relieve the people, and pay the
officer such a compensation as he ought to re-
ceive. The objection to a fixed salary which he
had stated had then occurred to him, and the only
remedy he saw that could be applied, was to abol-
ish the whole act of 1826, and to pass in its stead,
a law allowing so much to the clerk, by every
plaintiff upon instituting a suit, and so much
upon the appearance of every defendant, in lieu
of all fees, and upon the rendition of the judg-
ment the plaintiff or defendant, as the case might
be, in whose favor the judgment was given, to
have the cost which he had paid. This though
was a matter of detail altogether for the Legisla-
ture, and not proper to be prescribed as a part of
the organic law by this Convention—the most
we could do, would be to pass an article enjoin- |
