An Inquiry into the Nature and Causes of the Wealth of Nations by Adam Smith (ebook reader with highlighter txt) 📖

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 necesarily 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 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

(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 likeiy 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