The Online Library of Liberty

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• Key to Abbreviations and References
• [iv] Book Iv, Continued.
• [iv.vi] Chapter VI: Of Treaties of Commerce
• [iv.vii] Chapter VII: Of Colonies
• [iv.vii.a] Part First: of the Motives For Establishing New Colonies
• [iv.vii.b] Part Second: Causes of the Prosperity of New Colonies
• [iv.vii.c] Part Third: of the Advantages Which Europe Has Derived From the Discovery of America, and From That of a Passage to the East Indies By the Cape of Good Hope.
• [iv.viii] Chapter VIII: Conclusion of the Mercantile System
• [iv.ix] Chapter IX: Of the Agricultural Systems, Or of Those Systems of Political Œconomy, Which Represent the Produce of Land As Either the Sole Or the Principal Source of the Revenue and Wealth of Every Country
• [v] Book V: Of the Revenue of the Sovereign Or Commonwealth
• [v.i] Chapter I: Of the Expences of the Sovereign Or Commonwealth
• [v.i.a] Part First: of the Expence of Defence
• [v.i.b] Part II: Of the Expence of Justice
• [v.i.c] Part III: Of the Expence of Publick Works and Publick Institutions
• Article I: Of the Publick Works and Institutions For Facilitating the Commerce of the Society
• [v.i.d] And, First, of Those Which Are Necessary For Facilitating Commerce In General A–a
• [v.i.e] of the Publick Works and Institutions Which Are Necessary For Facilitating Particular Branches of Commerce
• [v.i.f] Article II: Of the Expence of the Institutions For the Education of a Youth 1
• [v.i.g] Article III: Of the Expence of the Institutions For the Instruction of People of All Ages
• [v.i.h] Part IV: Of the Expence of Supporting the Dignity of the Sovereign
• [v.i.i] Conclusion of the Chapter
• [v.ii] Chapter II: Of the Sources of the General Or Publick Revenue of the Society
• [v.ii.a] Part I: Of the Funds Or Sources of Revenue Which May Peculiarly Belong to the Sovereign Or Commonwealth
• [v.ii.b] Part II: Of Taxes
• [v.ii.c] Article I: Taxes Upon Rent; Taxes Upon the Rent of Land
• [v.ii.d] Taxes Which Are Proportioned, Not to the Rent, But to the Produce of Land
• [v.ii.e] Taxes Upon the Rent of Houses
• [v.ii.f] Article II: Taxes Upon Profit, Or Upon the Revenue Arising From Stock
• [v.ii.g] Taxes Upon the Profit of Particular Employments
• [v.ii.h] Appendix to Articles I and II: Taxes Upon the Capital Value of Lands, Houses, and Stock
• [v.ii.i] Article III: Taxes Upon the Wages of Labour
• Article IV: Taxes Which, It Is Intended, Should Fall Indifferently Upon Every Different Species of Revenue
• [v.ii.j] Capitation Taxes
• [v.ii.k] Taxes Upon Consumable Commodities
• [v.iii] Chapter III: Of Publick Debts
• Appendix
• Textual Schedules
• Schedule A. Emendations of Accidental Readings
• Schedule B. Excluded Variants
• Schedule C. Line–end Hyphenation
• Table of Corresponding Passages

[V.i.b] part ii

Of the Expence of Justice

1The 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 too very different degrees of expence in the different periods of society.1

2Among 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.2 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.3 Wherever there is 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 ^aand^a 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.4

3Civil 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.5

4The 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.6

5The 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.7 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.

6 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 every where 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.8 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 ^btake^b 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.

7The 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 age of society which admits of any considerable inequality of fortune.9 A Tartar chief, the increase of whose herds and flocks is sufficient to maintain a thousand men, cannot well employ that increase in any other way than in maintaining a thousand men.10 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.11 He is necessarily both their general and their judge, and his chieftainship is the necessary effect of the superiority of his fortune.12 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.13 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 any body who considers himself as entirely dependent upon him, and his authority extends only over a few menial servants.14 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 ^cthere^c 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.15

8The fourth of those causes or circumstances is the superiority of birth. Superiority of birth supposes an antient 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 every where the antiquity either of wealth, or of that greatness which is commonly either founded upon wealth, or accompanied with it. Upstart greatness is every where less respected than antient greatness.16 The hatred of usurpers, the love ^dof^d the family of an antient 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.

9The 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.17 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.

10The distinction of birth not only may, but always does take place among nations of shepherds.18 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.19

11Birth and fortune are evidently the two circumstances which principally set one man above another.20 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 of 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.

12It 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.21

13The judicial authority of such a sovereign, however, far from being a cause of expence, 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 likewise 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 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.22

14This 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.23 Justice too might frequently be delayed, in order that this present might be repeated.24 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 antient history of every country in Europe bears witness.

15When the sovereign or chief exercised 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 any 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 antient 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.

16Among 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.25 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^e, in order to protect them from the oppression of some of their fellow–subjects, they stand in need of his authority.^e 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.26 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.

17 But when from different causes, chiefly from the continually increasing expence of defending the nation against the invasion of other nations, the private estate of the sovereign had become altogether insufficient for defraying the expence of the sovereignty; and when it had become necessary that the people should, for their own security, contribute towards this expence 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 antient emoluments of justice; as the taxes more than compensated to the sovereign the loss of his. Justice was then said to be administered gratis.

18Justice, however, never was in reality administered gratis in any country. Lawyers and attornies, 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 attornies 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 no where much diminish the necessary expence of a law–suit. But it was not so much to diminish the expence, as to prevent the corruption of justice, that the judges were prohibited from receiving any present or fee from the parties.

19The office of judge is in itself so very honourable, that men are willing to accept of it, though accompanied with very small emoluments.27 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.28 The salaries of all the different judges, high and low, together with the whole expence of the administration and execution of justice, even where it is not managed with very good œconomy, makes, in any civilized country, but a very inconsiderable part of the whole expence of government.

20The whole expence 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 publick 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 where such fees are prohibited altogether. Those fees, without occasioning any considerable increase in the expence of a law–suit, might be rendered fully sufficient for defraying the whole expence of justice. By 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. Publick 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.29 In the different parliaments of France, the fees of court (called Epicès 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 Toulouse, in rank and dignity the second parliament of the kingdom, amounts only to a hundred and fifty livres, about six pounds eleven shillings 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 those Epicès 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.

21The 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.30 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 misdemeanor. 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 plaintiff 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 chuse 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 antiently 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 specifick 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 specifick 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.31

22A 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 expence 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 attornies 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 attornies 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.32 A like temptation might perhaps occasion a like corruption in the form of law proceedings.

23But whether the administration of justice be so contrived as to defray its own expence, 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.33 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.

24The 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.34 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.35 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.

25When 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 œconomy of that power.36

[1 ]Cf. LJ (A) i.9: ‘The first and chief design of all civill governments is . . . to preserve justice amongst the members of the state and to prevent all incroachments on the individualls in it, from others of the same society.’ See above, V.i.a.1.

[2 ]It is stated in LJ (A) v.109 that ‘Savages of all things hate a judge set over their heads’. LJ (A) i.33 comments with regard to the age of hunters that ‘As there is almost no property amongst them, the only injury that can be done is the depriving them of their game. Few laws or regulations will be requisite in such an age of society . . .’ Smith did add, however, that ‘even in the age of hunters there may be fixt habitations for the families, but property would not be extended to what was without the house’ (i.48). It therefore followed, that in this general situation ‘there can be very little government of any sort, but what there is will be of a democraticall kind’. LJ (A) iv.4; see also LJ (A) ii.152; LJ (B) 19, 183, ed. Cannan 14 and 137. Smith comments in LJ (A) iv.74 that at this stage ‘there was properly no government at all’ and that there was ‘no occasion for any laws or regulations, property not extending at this time beyond possession’ (iv.19). He also remarks at p. 22 that ‘In the age of hunters a few temporary exertions of the authority of the community will be sufficient for the few occasions of dispute which can occur. Property, the grand fund of all dispute, is not then known.’ Cf. LJ (B) 25, ed. Cannan 18–19.

[3 ]Cf. TMS VII.iv.36:

Every system of positive law may be regarded as a more or less imperfect attempt towards a system of natural jurisprudence, or towards an enumeration of the particular rules of justice. As the violation of justice is what men will never submit to from one another, the public magistrate is under a necessity of employing the power of the commonwealth to enforce the practice of this virtue. Without this precaution, civil society would become a scene of bloodshed and disorder, every man revenging himself at his own hand whenever he fancied he was injured.

Smith went on to observe that ‘In some countries, the rudeness and barbarism of the people hinder the natural sentiments of justice from arriving at that accuracy and precision which, in more civilised nations, they naturally attain to. Their laws are, like their manners, gross and rude, and undistinguishing.’ He therefore concluded that systems of positive law, ‘though they deserve the greatest authority, as the records of the sentiments of mankind in different ages and nations, yet can never be regarded as accurate systems of the rules of natural justice’.

[a–a]or 1

[4 ]LJ (A) i.33–4 comments: ‘But when flocks and herds come to be reared property then becomes of a very considerable extent; there are many opportunities for injuring one another and such injuries are extremely pernicious to the sufferer.’

[5 ]Smith remarks at LJ (A) iv.19 that government arose, ‘not as some writers imagine, from any consent or agreement of a number of persons to submit themselves to such or such regulations, but from the natural progress which men make in society’. He went on, ‘I should also say that the age of shepherds is that where government first commences. Property makes it absolutely necessary’ (21). See also LJ (B) 15–18, ed. Cannan 11–13, for Smith’s criticism of the ‘contract’ theory, and LJ (A) v.114–19 where he rejects the contract theory, as represented by Locke and Sidney.

[6 ]The four sources of authority are examined in LJ (B) 12, ed. Cannan 9–10. The argument of this section places a good deal of emphasis on the sources of authority and subordination and on the way in which these are affected by the mode of subsistence, or type of economy, prevailing. The argument finds a close parallel in that offered by Smith’s pupil, John Millar, Origin of the Distinction of Ranks (1771), chapter iii. For comment on Millar and his relation to the other members of the ‘Scottish Historical School’, see W. C. Lehmann, John Millar of Glasgow (Cambridge, 1960).

[7 ]Cf. LRBL ii. 199, ed. Lothian 168: ‘The first thing which makes men submit themselves to the authority of others is the difficulty they feel in accomodating their matters either by their own judgment or by that of their opponents, and find it most adviseable to submit it to some impartiall person. By this means some persons of eminent worth came to be settled as judges and umpires.’

[8 ]LJ (B) 161, ed. Cannan 118, comments: ‘In the beginings of society age itself is very much respected, and to this day among the Tartars the king is not succeded by his son, but by that one of the royal family who is oldest.’ Montesquieu also states that in the case of primitive peoples, the old men have great authority, ‘They cannot there be distinguished by wealth, but by wisdom and valour’ (Esprit, XVIII.xiii.3). The Anderson Notes (37) observe that in the barbarous state ‘the older the wiser a good maxim in the choice of magistrates, because there are no means of acquiring knowledge by books, etc. Hence the governours or chiefs in Africa are old men.’ The notes go on to comment that ‘Two chiefs may often be found in such a state’ without causing disruption, and that governing may become hereditary in one family ‘because it is natural to transplant our love or dislike to the representative of the deceast person’.

[b–b]takes 5–6

[9 ]Cf. LJ (A) iv.41: ‘Superiority of wealth gives one in this age a greater influence and authority than the same disproportion does at any other time.’ A similar point is made at p. 8. See also p. 116: ‘This inequality of property would, in a country where agriculture and division of land was introduced, but not practisd, introduce still greater dependance than among shepherds, tho there too it is very great.’ Cf. LJ (B) 20, ed. Cannan 16.

[10 ]See above, III.iv.5.

[11 ]Cf. V.iii.1 and also III.iv.5, 8. See also LJ (B) 21, ed. Cannan 16: ‘Even at present a man may spend a great estate and yet acquire no dependents. Arts and manufactures are increased by it, but it may make very few persons dependent. In a nation of shepherds it is quite otherways. They have no possible means of spending their property, having no domestic luxury, but by giving it in presents to the poor, and by this means they attain such an influence over them as to make them in a manner their slaves.’

[12 ]It is remarked in LRBL ii.199, ed. Lothian 168, that: ‘When men, especially in a barbarous state, are accustomed to submit themselves in some points, they naturally do it in others. The same persons therefore who judged them in peace, lead them also to battle.’

[13 ]Smith comments on the absence of this kind of dependence in the modern state in LJ (A) iv.8.

[14 ]This point is elaborated above, III.iv.11.

[c–c]their 5

[15 ]In LJ (A) ii.97 Smith remarks with reference to the transition from the hunting to the shepherd state that ‘The step betwixt these two is of all others the greatest in the progression of society, for by it the notion of property is extended beyond possession, to which it is in the former state confined.’

[16 ]See above, IV.vii.b.51. In LJ (A) iv.46 the upstart family is defined as one of those who ‘have been but lately raised to dignity’. Cf. iv.162. It is also remarked in LJ (B) 13, ed. Cannan 10, that ‘It is evident that an old family, that is, one which has been long distinguished, by its wealth has more authority than any other. An upstart is always disagreeable, we envy his superiority over us, and think ourself as well entitled to wealth as he.’ A similar point is made in LJ (A) v.129, where it is stated that ‘an old family excites no such jealousy as an upstart does’, and in TMS I.ii.5.1: ‘An upstart, though of the greatest merit, is generally disagreeable, and a sentiment of envy commonly prevents us from heartily sympathizing with his joy.’

[d–d]for 1

[17 ]LJ (A) iv.42 states that ‘In the age of hunters there can be no hereditary nobility or respect to families.’

[18 ]See above, III.iv.16.

[19 ]LJ (A) iv.43 claims that ‘in the age of shepherds descent gives one more respect and authority than perhaps in any other stage of society whatever’, and cites in support of this contention the genealogies in an unidentified Tartarian history. Smith added that the Jews also pay great respect and attention to family, explaining their continuing influence by their lack of luxury; i.e. forms of expenditure which would dissipate their fortunes and therefore influence (p. 44).

[20 ]Smith refers at V.iii.89 to the ‘natural and respectable distinctions of birth and fortune’. It is remarked in TMS VI.ii.1.20 that: ‘Nature has wisely judged that the distinction of ranks, the peace and order of society, would rest more securely upon the plain and palpable difference of birth and fortune, than upon the invisible and often uncertain difference of wisdom and virtue.’

[21 ]Cf. LJ (B) 20, ed. Cannan 15: ‘The appropriation of herds and flocks, which introduced an inequality of fortune, was that which first gave rise to regular government. Till there be property there can be no government, the very end of which is to secure wealth, and to defend the rich from the poor.’ LJ (A) iv.21 states that ‘the age of shepherds is that where government first commences. Property makes it absolutely necessary.’ A similar point is made at iv.7 and Smith added at iv.22–3 that ‘Laws and government may be considered in this and indeed in every case as a combination of the rich to oppress the poor, and preserve to themselves the inequality of the goods which would otherwise be soon destroyed by the attacks of the poor, who if not hindered by the government would soon reduce the others to an equality with themselves by open violence.’ Cf. also LJ (B) 11, ed. Cannan 8: ‘Property and civil government very much depend on one another. The preservation of property and the inequality of possession first formed it, and the state of property must always vary with the form of government.’

[* ]They are to be found in Tyrrell’s History of England. [J. Tyrrell, General History of England both Ecclesiastical and Civil (London, 1700), ii.402 and 457–9. Fuller information on the activities of the justices is given for the reign of Richard I, ii.542 and 576–9.]

[22 ]See below, V.ii.a.15.

[23 ]LJ (B) 307, ed. Cannan 237, remarks that ‘When applications are made, everyone must bring his present and the man who pays best will be best heard’. Smith also noted that the provision of a gift to those who are to deliver judgement ‘is the case among the Tartars, Arabs, and Hottentots even to this day’. Similar points are made in LJ (A) iv.32 where the Americans and Mongols are also included, together with the Saxon kings and ‘some of the first of the Norman race’. It is stated at iv.16 that ‘A Tartar prince cannot be spoke to without you open his ears by a gift. As this will soon increase their riches, so the number of their dependants and their power must rise proportionably, and their influence on the council will also be increased.’ Cf. Montesquieu, Esprit, V.xvii.1: ‘It is a received custom in despotic countries never to address any superior whomsoever, not excepting their kings, without making them a present. The Mogul never receives the petitions of his subjects if they come with empty hands.’

[24 ]TMS III.i.2.24 offers an interesting aside: ‘When a man has bribed all the judges, the most unanimous decision of the court, though it may gain him his law–suit, cannot give him any assurance that he was in the right; and had he carried on his law–suit merely to satisfy himself that he was in the right, he never would have bribed the judges.’

[25 ]See below, V.ii.a.2. It is pointed out at I.iv.3 that in this state cattle were a common instrument of commerce.

[e–e]they stand in need of the interposition of his authority in order to protect them from the oppression of some of their fellow subjects. 1

[26 ]‘Seven well–peopled cities will I give him, Cardamyle, Enope, and grassy Hire, and sacred Pherae and Antheia with deep meadows, and fair Aepeia and vine–clad Pedasus. All are nigh to the sea, on the uttermost border of sandy Pylos, and in them dwell men rich in flocks and rich in kine, men that shall honour him with gifts as though he were a god, and beneath his sceptre shall bring his ordinances to prosperous fulfilment. All this will I bring to pass for him, if he but cease from his wrath.’ (Homer, Iliad, ix.149–57, translated by A. T. Murray in Loeb Classical Library (1965), i.392–3.)

[27 ]See above, I.x.b.24.

[28 ]LJ (A) v.5 refers to sheriffs appointed by the Crown for life as an office which ‘is not attended with great dignity and no profit, so that many pay a fine of £500 to be excused from it’.

[29 ]This point is forcibly made below, V.i.f.4.

[30 ]Smith comments on the rivalry between the courts in LJ (A) v.25–6 and LJ (B) 69, ed. Cannan 49. The structure of the courts is described in LJ (A) v. lectures 1 and 2; LJ (B) 64–75, ed. Cannan 46–53.

[31 ]This writ is also mentioned above, III.ii.14.

[32 ]Smith refers above, II.iv.11, to the ‘conveyances of a verbose attorney’. Here as elsewhere he does not object so much to the action taken as to the circumstances within which it takes place. See for example IV.vii.c.107, where Smith comments on the activities of some members of the East India Company and below, V.i.e.26, where he refers to the ‘irresistible moral causes’ to which they were subject. The point is of course that while nothing can be done about the principles of human nature, it should be possible to ensure an environment within which men will find it in their interest to act in such a way as to be compatible with the effective provision of some service. Cf. I.viii.44.

[33 ]In Letter 235, addressee unknown, possibly dated 1783, Smith recorded that: ‘By the 10th Anne Cap. 26 Sect. 108, all the duties of customs and excise at that time payable in Scotland were made liable to the expence of keeping up the three courts of Session, Justiciary and Exchequer.’

[34 ]Cf. Anderson Notes, 39. LRBL ii.203, ed. Lothian 170, states that the separation of powers is ‘one of the most happy parts of the British Constitution’ and that this:

is the great advantage which modern times have over antient, and the foundation of that greater security which we now enjoy, both with regard to liberty, property, and life. It was introduced only by chance and to ease the Supreme Magistrate of this the most laborious and less glorious part of his power, and has never taken place untill the increase of refinement and the growth of society have multiplied business immensely. LJ (B) 63, ed. Cannan 45 comments on the ‘happy mixture of all the different forms of government properly restrained’ which exists in Britain and adds that as an additional security, judges are appointed for life, and quite independent of the king. In LJ (A) Smith makes the above point in reviewing the basis of English liberties, and includes the power of the Commons to impeach the king’s ministers, Habeas Corpus, the frequency and method of elections, etc. He concluded, however, that the most important guarantee was that ‘The system of government now supposes a system of liberty as a foundation. Every one would be shocked at any attempt to alter this system, and such a change would be attended with greatest difficulties.’ LJ (A) v.5. The Anderson Notes observe that ‘Montesquieu’s division of powers in a state [is] very just’ (39).

[35 ]The scope of the office of praetor is described in LRBL ii.202, ed. Lothian 169–70.

[36 ]Smith had remarked in LJ (A) v.5 on the importance of independent judges with regard to liberty; the point is underlined in Letter 117 addressed to Smith, dated 6 March 1769 and written in the violent aftermath of the Douglas Cause. Lord Hailes wrote that ‘Judges must not only be free, but they must feel themselves free . . . hitherto I imagined that I was answerable for my Conduct to the laws of my Country . . . now there is a sovereign Tribunal at every Bonfire.’ See also Letter 116 addressed to Hailes, dated 5 March 1769. In the course of this letter, Smith made the interesting remark that: I have read law entirely with a view to form some general notion of the great outlines of the plan according to which justice has [been] administered in different ages & nations, & I have entered very little into the detail of Particulars, . . .