Chapter Of the Expense of Justice

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.