PART II. Of the Expense of Justice

The second duty of the sovereign, that of protecting, as far as
possible, every member of the society from the injustice or oppression
of every other member of it, or the duty of establishing an exact
administration of justice, requires two very different degrees of
expense in the different periods of society.

Among nations of hunters, as there is scarce any property, or at least
none that exceeds the value of two or three days labour; so there is
seldom any established magistrate, or any regular administration of
justice. Men who have no property, can injure one another only in
their persons or reputations. But when one man kills, wounds, beats, or
defames another, though he to whom the injury is done suffers, he
who does it receives no benefit. It is otherwise with the injuries to
property. The benefit of the person who does the injury is often equal
to the loss of him who suffers it. Envy, malice, or resentment, are the
only passions which can prompt one man to injure another in his person
or reputation. But the greater part of men are not very frequently under
the influence of those passions; and the very worst men are so only
occasionally. As their gratification, too, how agreeable soever it may
be to certain characters, is not attended with any real or permanent
advantage, it is, in the greater part of men, commonly restrained by
prudential considerations. Men may live together in society with some
tolerable degree of security, though there is no civil magistrate to
protect them from the injustice of those passions. But avarice and
ambition in the rich, in the poor the hatred of labour and the love
of present ease and enjoyment, are the passions which prompt to invade
property; passions much more steady in their operation, and much more
universal in their influence. Wherever there is a great property, there
is great inequality. For one very rich man, there must be at least five
hundred poor, and the affluence of the few supposes the indigence of the
many. The affluence of the rich excites the indignation of the poor,
who are often both driven by want, and prompted by envy to invade his
possessions. It is only under the shelter of the civil magistrate, that
the owner of that valuable property, which is acquired by the labour
of many years, or perhaps of many successive generations, can sleep
a single night in security. He is at all times surrounded by unknown
enemies, whom, though he never provoked, he can never appease, and from
whose injustice he can be protected only by the powerful arm of the
civil magistrate, continually held up to chastise it. The acquisition
of valuable and extensive property, therefore, necessarily requires the
establishment of civil government. Where there is no property, or at
least none that exceeds the value of two or three days labour, civil
government is not so necessary.

Civil government supposes a certain subordination. But as the necessity
of civil government gradually grows up with the acquisition of
valuable property; so the principal causes, which naturally introduce
subordination, gradually grow up with the growth of that valuable
property.

The causes or circumstances which naturally introduce subordination, or
which naturally and antecedent to any civil institution, give some men
some superiority over the greater part of their brethren, seem to be
four in number.

The first of those causes or circumstances, is the superiority of
personal qualifications, of strength, beauty, and agility of body; of
wisdom and virtue; of prudence, justice, fortitude, and moderation of
mind. The qualifications of the body, unless supported by those of the
mind, can give little authority in any period of society. He is a very
strong man, who, by mere strength of body, can force two weak ones
to obey him. The qualifications of the mind can alone give very great
authority They are however, invisible qualities; always disputable, and
generally disputed. No society, whether barbarous or civilized, has
ever found it convenient to settle the rules of precedency of rank and
subordination, according to those invisible qualities; but according to
something that is more plain and palpable.

The second of those causes or circumstances, is the superiority of age.
An old man, provided his age is not so far advanced as to give suspicion
of dotage, is everywhere more respected than a young man of equal rank,
fortune, and abilities. Among nations of hunters, such as the native
tribes of North America, age is the sole foundation of rank and
precedency. Among them, father is the appellation of a superior;
brother, of an equal; and son, of an inferior. In the most opulent and
civilized nations, age regulates rank among those who are in every
other respect equal; and among whom, therefore, there is nothing else to
regulate it. Among brothers and among sisters, the eldest always takes
place; and in the succession of the paternal estate, every thing which
cannot be divided, but must go entire to one person, such as a title
of honour, is in most cases given to the eldest. Age is a plain and
palpable quality, which admits of no dispute.

The third of those causes or circumstances, is the superiority of
fortune. The authority of riches, however, though great in every age
of society, is, perhaps, greatest in the rudest ages of society, which
admits of any considerable inequality of fortune. A Tartar chief, the
increase of whose flocks and herds is sufficient to maintain a
thousand men, cannot well employ that increase in any other way than
in maintaining a thousand men. The rude state of his society does not
afford him any manufactured produce any trinkets or baubles of any kind,
for which he can exchange that part of his rude produce which is over
and above his own consumption. The thousand men whom he thus maintains,
depending entirely upon him for their subsistence, must both obey
his orders in war, and submit to his jurisdiction in peace. He is
necessarily both their general and their judge, and his chieftainship
is the necessary effect of the superiority of his fortune. In an opulent
and civilized society, a man may possess a much greater fortune, and
yet not be able to command a dozen of people. Though the produce of
his estate may be sufficient to maintain, and may, perhaps, actually
maintain, more than a thousand people, yet, as those people pay for
every thing which they get from him, as he gives scarce any thing to
any body but in exchange for an equivalent, there is scarce anybody
who considers himself as entirely dependent upon him, and his authority
extends only over a few menial servants. The authority of fortune,
however, is very great, even in an opulent and civilized society. That
it is much greater than that either of age or of personal qualities, has
been the constant complaint of every period of society which admitted
of any considerable inequality of fortune. The first period of society,
that of hunters, admits of no such inequality. Universal poverty
establishes their universal equality; and the superiority, either of age
or of personal qualities, are the feeble, but the sole foundations of
authority and subordination. There is, therefore, little or no authority
or subordination in this period of society. The second period of
society, that of shepherds, admits of very great inequalities of
fortune, and there is no period in which the superiority of fortune
gives so great authority to those who possess it. There is no period,
accordingly, in which authority and subordination are more perfectly
established. The authority of an Arabian scherif is very great; that of
a Tartar khan altogether despotical.

The fourth of those causes or circumstances, is the superiority of
birth. Superiority of birth supposes an ancient superiority of fortune
in the family of the person who claims it. All families are equally
ancient; and the ancestors of the prince, though they may be better
known, cannot well be more numerous than those of the beggar. Antiquity
of family means everywhere the antiquity either of wealth, or of that
greatness which is commonly either founded upon wealth, or accompanied
with it. Upstart greatness is everywhere less respected than ancient
greatness. The hatred of usurpers, the love of the family of an ancient
monarch, are in a great measure founded upon the contempt which men
naturally have for the former, and upon their veneration for the latter.
As a military officer submits, without reluctance, to the authority of a
superior by whom he has always been commanded, but cannot bear that his
inferior should be set over his head; so men easily submit to a family
to whom they and their ancestors have always submitted; but are
fired with indignation when another family, in whom they had never
acknowledged any such superiority, assumes a dominion over them.

The distinction of birth, being subsequent to the inequality of fortune,
can have no place in nations of hunters, among whom all men, being equal
in fortune, must likewise be very nearly equal in birth. The son of
a wise and brave man may, indeed, even among them, be somewhat more
respected than a man of equal merit, who has the misfortune to be the
son of a fool or a coward. The difference, however will not be very
great; and there never was, I believe, a great family in the world,
whose illustration was entirely derived from the inheritance of wisdom
and virtue.

The distinction of birth not only may, but always does, take place among
nations of shepherds. Such nations are always strangers to every sort
of luxury, and great wealth can scarce ever be dissipated among them
by improvident profusion. There are no nations, accordingly, who abound
more in families revered and honoured on account of their descent from
a long race of great and illustrious ancestors; because there are no
nations among whom wealth is likely to continue longer in the same
families.

Birth and fortune are evidently the two circumstances which principally
set one man above another. They are the two great sources of personal
distinction, and are, therefore, the principal causes which naturally
establish authority and subordination among men. Among nations of
shepherds, both those causes operate with their full force. The great
shepherd or herdsman, respected on account of his great wealth, and
of the great number of those who depend upon him for subsistence, and
revered on account of the nobleness of his birth, and of the immemorial
antiquity or his illustrious family, has a natural authority over all
the inferior shepherds or herdsmen of his horde or clan. He can command
the united force of a greater number of people than any of them. His
military power is greater than that of any of them. In time of war,
they are all of them naturally disposed to muster themselves under his
banner, rather than under that of any other person; and his birth and
fortune thus naturally procure to him some sort of executive power. By
commanding, too, the united force of a greater number of people than any
of them, he is best able to compel any one of them, who may have injured
another, to compensate the wrong. He is the person, therefore, to whom
all those who are too weak to defend themselves naturally look up for
protection. It is to him that they naturally complain of the injuries
which they imagine have been done to them; and his interposition, in
such cases, is more easily submitted to, even by the person complained
of, than that of any other person would be. His birth and fortune thus
naturally procure him some sort of judicial authority.

It is in the age of shepherds, in the second period of society, that the
inequality of fortune first begins to take place, and introduces among
men a degree of authority and subordination, which could not possibly
exist before. It thereby introduces some degree of that civil government
which is indispensably necessary for its own preservation; and it seems
to do this naturally, and even independent of the consideration of
that necessity. The consideration of that necessity comes, no doubt,
afterwards, to contribute very much to maintain and secure that
authority and subordination. The rich, in particular, are necessarily
interested to support that order of things, which can alone secure
them in the possession of their own advantages. Men of inferior wealth
combine to defend those of superior wealth in the possession of their
property, in order that men of superior wealth may combine to defend
them in the possession of theirs. All the inferior shepherds and
herdsmen feel, that the security of their own herds and flocks depends
upon the security of those of the great shepherd or herdsman; that the
maintenance of their lesser authority depends upon that of his greater
authority; and that upon their subordination to him depends his power of
keeping their inferiors in subordination to them. They constitute a
sort of little nobility, who feel themselves interested to defend the
property, and to support the authority, of their own little sovereign,
in order that he may be able to defend their property, and to support
their authority. Civil government, so far as it is instituted for the
security of property, is, in reality, instituted for the defence of the
rich against the poor, or of those who have some property against those
who have none at all.

The judicial authority of such a sovereign, however, far from being a
cause of expense, was, for a long time, a source of revenue to him. The
persons who applied to him for justice were always willing to pay
for it, and a present never failed to accompany a petition. After the
authority of the sovereign, too, was thoroughly established, the person
found guilty, over and above the satisfaction which he was obliged to
make to the party, was like-wise forced to pay an amercement to the
sovereign. He had given trouble, he had disturbed, he had broke the
peace of his lord the king, and for those offences an amercement was
thought due. In the Tartar governments of Asia, in the governments
of Europe which were founded by the German and Scythian nations who
overturned the Roman empire, the administration of justice was a
considerable source of revenue, both to the sovereign, and to all
the lesser chiefs or lords who exercised under him any particular
jurisdiction, either over some particular tribe or clan, or over some
particular territory or district. Originally, both the sovereign and the
inferior chiefs used to exercise this jurisdiction in their own persons.
Afterwards, they universally found it convenient to delegate it to
some substitute, bailiff, or judge. This substitute, however, was still
obliged to account to his principal or constituent for the profits of
the jurisdiction. Whoever reads the instructions (They are to be found
in Tyrol's History of England) which were given to the judges of the
circuit in the time of Henry II will see clearly that those judges were
a sort of itinerant factors, sent round the country for the purpose
of levying certain branches of the king's revenue. In those days, the
administration of justice not only afforded a certain revenue to the
sovereign, but, to procure this revenue, seems to have been one of the
principal advantages which he proposed to obtain by the administration
of justice.

This scheme of making the administration of justice subservient to the
purposes of revenue, could scarce fail to be productive of several very
gross abuses. The person who applied for justice with a large present
in his hand, was likely to get something more than justice; while he
who applied for it with a small one was likely to get something less.
Justice, too, might frequently be delayed, in order that this present
might be repeated. The amercement, besides, of the person complained
of, might frequently suggest a very strong reason for finding him in the
wrong, even when he had not really been so. That such abuses were far
from being uncommon, the ancient history of every country in Europe
bears witness.

When the sovereign or chief exercises his judicial authority in his
own person, how much soever he might abuse it, it must have been scarce
possible to get any redress; because there could seldom be any body
powerful enough to call him to account. When he exercised it by a
bailiff, indeed, redress might sometimes be had. If it was for his own
benefit only, that the bailiff had been guilty of an act of injustice,
the sovereign himself might not always be unwilling to punish him, or
to oblige him to repair the wrong. But if it was for the benefit of his
sovereign; if it was in order to make court to the person who appointed
him, and who might prefer him, that he had committed any act of
oppression; redress would, upon most occasions, be as impossible as if
the sovereign had committed it himself. In all barbarous governments,
accordingly, in all those ancient governments of Europe in
particular, which were founded upon the ruins of the Roman empire, the
administration of justice appears for a long time to have been extremely
corrupt; far from being quite equal and impartial, even under the best
monarchs, and altogether profligate under the worst.

Among nations of shepherds, where the sovereign or chief is only the
greatest shepherd or herdsman of the horde or clan, he is maintained in
the same manner as any of his vassals or subjects, by the increase of
his own herds or flocks. Among those nations of husbandmen, who are
but just come out of the shepherd state, and who are not much advanced
beyond that state, such as the Greek tribes appear to have been about
the time of the Trojan war, and our German and Scythian ancestors, when
they first settled upon the ruins of the western empire; the sovereign
or chief is, in the same manner, only the greatest landlord of the
country, and is maintained in the same manner as any other landlord, by
a revenue derived from his own private estate, or from what, in modern
Europe, was called the demesne of the crown. His subjects, upon ordinary
occasions, contribute nothing to his support, except when, in order to
protect them from the oppression of some of their fellow-subjects, they
stand in need of his authority. The presents which they make him upon
such occasions constitute the whole ordinary revenue, the whole of
the emoluments which, except, perhaps, upon some very extraordinary
emergencies, he derives from his dominion over them. When Agamemnon, in
Homer, offers to Achilles, for his friendship, the sovereignty of seven
Greek cities, the sole advantage which he mentions as likely to be
derived from it was, that the people would honour him with presents. As
long as such presents, as long as the emoluments of justice, or what
may be called the fees of court, constituted, in this manner, the whole
ordinary revenue which the sovereign derived from his sovereignty, it
could not well be expected, it could not even decently be proposed,
that he should give them up altogether. It might, and it frequently was
proposed, that he should regulate and ascertain them. But after they
had been so regulated and ascertained, how to hinder a person who was
all-powerful from extending them beyond those regulations, was still
very difficult, not to say impossible. During the continuance of
this state of things, therefore, the corruption of justice, naturally
resulting from the arbitrary and uncertain nature of those presents,
scarce admitted of any effectual remedy.

But when, from different causes, chiefly from the continually increasing
expense of defending the nation against the invasion of other nations,
the private estate of the sovereign had become altogether insufficient
for defraying the expense of the sovereignty; and when it had become
necessary that the people should, for their own security, contribute
towards this expense by taxes of different kinds; it seems to have been
very commonly stipulated, that no present for the administration of
justice should, under any pretence, be accepted either by the sovereign,
or by his bailiffs and substitutes, the judges. Those presents, it seems
to have been supposed, could more easily be abolished altogether, than
effectually regulated and ascertained. Fixed salaries were appointed
to the judges, which were supposed to compensate to them the loss
of whatever might have been their share of the ancient emoluments of
justice; as the taxes more than compensated to the sovereign the loss of
his. Justice was then said to be administered gratis.

Justice, however, never was in reality administered gratis in any
country. Lawyers and attorneys, at least, must always be paid by the
parties; and if they were not, they would perform their duty still worse
than they actually perform it. The fees annually paid to lawyers and
attorneys, amount, in every court, to a much greater sum than the
salaries of the judges. The circumstance of those salaries being paid
by the crown, can nowhere much diminish the necessary expense of a
law-suit. But it was not so much to diminish the expense, as to
prevent the corruption of justice, that the judges were prohibited from
receiving my present or fee from the parties.

The office of judge is in itself so very honourable, that men are
willing to accept of it, though accompanied with very small emoluments.
The inferior office of justice of peace, though attended with a good
deal of trouble, and in most cases with no emoluments at all, is an
object of ambition to the greater part of our country gentlemen. The
salaries of all the different judges, high and low, together with the
whole expense of the administration and execution of justice, even
where it is not managed with very good economy, makes, in any civilized
country, but a very inconsiderable part of the whole expense of
government.

The whole expense of justice, too, might easily be defrayed by the fees
of court; and, without exposing the administration of justice to any
real hazard of corruption, the public revenue might thus be entirely
discharged from a certain, though perhaps but a small incumbrance. It is
difficult to regulate the fees of court effectually, where a person
so powerful as the sovereign is to share in them and to derive any
considerable part of his revenue from them. It is very easy, where the
judge is the principal person who can reap any benefit from them. The
law can very easily oblige the judge to respect the regulation though
it might not always be able to make the sovereign respect it. Where the
fees of court are precisely regulated and ascertained where they are
paid all at once, at a certain period of every process, into the hands
of a cashier or receiver, to be by him distributed in certain known
proportions among the different judges after the process is decided and
not till it is decided; there seems to be no more danger of corruption
than when such fees are prohibited altogether. Those fees, without
occasioning any considerable increase in the expense of a law-suit,
might be rendered fully sufficient for defraying the whole expense
of justice. But not being paid to the judges till the process was
determined, they might be some incitement to the diligence of the
court in examining and deciding it. In courts which consisted of a
considerable number of judges, by proportioning the share of each judge
to the number of hours and days which he had employed in examining the
process, either in the court, or in a committee, by order of the court,
those fees might give some encouragement to the diligence of each
particular judge. Public services are never better performed, than when
their reward comes only in consequence of their being performed, and
is proportioned to the diligence employed in performing them. In the
different parliaments of France, the fees of court (called epices and
vacations) constitute the far greater part of the emoluments of the
judges. After all 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 £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 revenue,
by his office; an idle one gets little more than his salary. Those
parliaments are, perhaps, in many respects, not very convenient courts
of justice; but they have never been accused; they seem never even to
have been suspected of corruption.

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 cognizance 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 cognizance 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
cognizance of all other contract debts; the planitiff 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 a
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 seen 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 person 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 politics. 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 payment of his salary should not
depend upon the good will, or even upon the good economy of that power.