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country can be perpetuated, or even pre- to licentiousness, can be tolerated only in served, for any considerable time. countries where the sovereign is secured by a well regulated standing army. It is in such countries only, that the public safety does not require that the sovereign should be trusted with any discretionary power, for suppres sing even the impertinent wantonness of this licentious liberty.

As it is only by means of a well regulated standing army, that a civilized country can be defended, so it is only by means of it that a barbarous country can be suddenly and tolerably civilized. A standing army establishes, with an irresistible force, the law of the sovereign through the remotest pro- The first duty of the sovereign, therefore, vinces of the empire, and maintains some de- that of defending the society from the viogree of regular government in countries lence and injustice of other independent sowhich could not otherwise admit of any. cieties, grows gradually more and more ex. Whoever examines with attention, the im- pensive, as the society advances in civilizaprovements which Peter the Great introduced tion. The military force of the society, into the Russian empire, will find that they which originally cost the sovereign no exalmost all resolve themselves into the esta-pense, either in time of peace, or in time of blishment of a well regulated standing army. war, must, in the progress of improvement, It is the instrument which executes and main- first be maintained by him in time of war, tains all his other regulations. That degree and afterwards even in time of peace. of order and internal peace, which that empire has ever since enjoyed, is altogether owing to the influence of that army.

The great change introduced into the art of war by the invention of fire-arms, has enhanced still further both the expense of exer Men of republican principles have been cising and disciplining any particular number jealous of a standing army, as dangerous to of soldiers in time of peace, and that of emliberty. It certainly is so, wherever the in-ploying them in time of war. Both their terest of the general, and that of the principal arms and their ammunition are become more officers, are not necessarily connected with expensive. A musket is a more expensive the support of the constitution of the state. machine than a javelin or a bow and arrows; The standing army of Cæsar destroyed the a cannon or a mortar, than a balista or a caRoman republic. The standing army of tapulta. The powder which is spent in a Cromwell turned the long parliament out of modern review is lost irrecoverably, and ocdoors. But where the sovereign is himself casions a very considerable expense. The the general, and the principal nobility and javelins and arrows which were thrown or gentry of the country the chief officers of the shot in an ancient one, could easily be pickariny; where the military force is placed un-ed up again, and were, besides, of very little der the command of those who have the value. The cannon and the mortar are not greatest interest in the support of the civil only much dearer, but much heavier machines authority, because they have themselves the than the balista or catapulta; and require a greatest share of that authority, a standing greater expense, not only to prepare them for army can never be dangerous to liberty. On the field, but to carry them to it. As the the contrary, it may, in some cases, be fa- superiority of the modern artillery, too, over vourable to liberty. The security which it that of the ancients, is very great; it has begives to the sovereign renders unnecessary come much more difficult, and consequently that troublesome jealousy, which, in some much more expensive, to fortify a town, so modern republics, seems to watch over the as to resist, even for a few weeks, the attack minutest actions, and to be at all times ready of that superior artillery. In modern times, to disturb the peace of every citizen. Where many different causes contribute to render the the security of the magistrate, though sup- defence of the society more expensive. The ported by the principal people of the country, unavoidable effects of the natural progress of is endangered by every popular discontent; improvement have, in this respect, been a where a small tumult is capable of bringing good deal enhanced by a great revolution in about in a few hours a great revolution, the the art of war, to which a mere accident, the whole authority of government must be em- invention of gunpowder, seems to have given ployed to suppress and punish every murmur occasion.

and complaint against it. To a sovereign, In modern war, the great expense of fireon the contrary, who feels himself supported, arms gives an evident advantage to the nation not only by the natural aristocracy of the which can best afford that expense; and, country, but by a well regulated standing consequently, to an opulent and civilized, army, the rudest, the most groundless, and over a poor and barbarous nation. In anthe most licentious remonstrances, can give cient times, the opulent and civilized found little disturbance. He can safely pardon or it difficult to defend themselves against the neglect them, and his consciousness of his poor and barbarous nations. own superiority naturally disposes him to do times, the poor and barbarous find it difficult That degree of liberty which approaches to defend themselves against the opulent and

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In moderu

civilized. The invention of fire-arms, an invention which at first sight appears to be so pernicious, is certainly favourable, both to the permanency and to the extension of civilization. Note 38.

PART 11.

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.

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 o 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.

Among nations of hunters, as there is The causes or circumstances which naturalscarce any property, or at least none that ex-ly introduce subordination, or which naturalceeds the value of two or three days labour; ly and antecedent to any civil institution, give so there is seldom any established magistrate, some men some superiority over the greater or any regular administration of justice. part of their brethren, seem to be four in Men who have no property, can injure one number. another only in their persons or reputations. The first of those causes or circumstances, But when one man kills, wounds, beats, or is the superiority of personal qualifications, defames another, though he to whom the in- of strength, beauty, and agility of body; of jury is done suffers, he who does it receives wisdom and virtue; of prudence, justice, no benefit. It is otherwise with the injuries fortitude, and moderation of mind. The to property. The benefit of the person who qualifications of the body, unless supported does the injury is often equal to the loss of by those of the mind, can give little authority him who suffers it. Envy, malice, or resent-in any period of society. He is a very strong ment, are the only passions which can prompt man, who, by mere strength of body, can one man to injure another in his person or force two weak ones to obey him. The quareputation. But the greater part of men are lifications of the mind can alone give very not very frequently under the influence of great authority They are however, invisible those passions; and the very worst men are qualities; always disputable, and generally so only occasionally. As their gratification, disputed. No society, whether barbarous or too, how agreeable soever it may be to cer- civilized, has ever found it convenient to settain characters, is not attended with any real tle the rules of precedency of rank and suboror permanent advantage, it is, in the greater dination, according to those invisible qualipart of men, commonly restrained by pruden- ties; but according to something that is more tial considerations. Men may live together plain and palpable. in society with some tolerable degree of seThe second of those causes or circumstances, curity, though there is no civil magistrate to is the superiority of age. An old man, proprotect them from the injustice of those pas- vided his age is not so far advanced as to give sions. But avarice and ambition in the rich, suspicion of dotage, is everywhere more rein the poor the hatred of labour and the love spected than a young man of equal rank, forof present ease and enjoyment, are the pas-tune, and abilities. Among nations of huntsions which prompt to invade property; pas-ers, such as the native tribes of North Amesions much more steady in their operation, rica, age is the sole foundation of rank and and much more universal in their influence. precedency. Among them, father is the apWherever there is a great property, there is pellation of a superior; brother, of an equal; great inequality. For one very rich man, and son, of an inferior. In the most oputhere must be at least five hundred poor, and lent and civilized nations, age regulates rank the affluence of the few supposes the indi- among those who are in every other respect gence of the many. The affluence of the rich equal; and among whom, therefore, there is noexcites the indignation of the poor, who are thing else to regulate it. Among brothers and often both driven by want, and prompted by among sisters, the eldest always takes place; envy to invade his possessions. It is only and in the succession of the paternal estate, under the shelter of the civil magistrate, that every thing which cannot be divided, but must the owner of that valuable property, which is go entire to one person, such as a title of hoacquired by the labour of many years, or nour, is in most cases given to the eldest. perhaps of many successive generations, can Age is a plain and palpable quality, which ad. tleep a single night in security. He is at all mits of no dispute.

The third of those causes or circumstances, mily means everywhere the antiquity either is the superiority of fortune. The authority of wealth, or of that greatness which is com of riches, however, though great in every age monly either founded upon wealth, or accomof society, is, perhaps, greatest in the rudest panied with it. Upstart greatness is everyages of society, which admits of any consider-where less respected than ancient greatness. able inequality of fortune. A Tartar chief, The hatred of usurpers, the love of the family the increase of whose flocks and herds is of an ancient monarch, are in a great measufficient to maintain a thousand men, cannot sure founded upon the contempt which men well employ that increase in any other way naturally have for the former, and upon their than in maintaining a thousand men. The veneration for the latter. As a military offirude state of his society does not afford him cer submits, without reluctance, to the authoany manufactured produce; any trinkets or rity of a superior by whom he has always been baubles of any kind, for which he can ex- commanded, but cannot bear that his inferior change that part of his rude produce which should be set over his head; so men easily is over and above his own consumption. The submit to a family to whom they and their thousand men whom he thus maintains, de-ancestors have always submitted; but are pending entirely upon him for their subsist- fired with indignation when another family, ence, must both obey his orders in war, and in whom they had never acknowledged any submit to his jurisdiction in peace. He is ne- such superiority, assumes a dominion over cessarily both their general and their judge, them. and his chieftainship is the necessary effect of The distinction of birth, being subsequent the superiority of his fortune. In an opulent to the inequality of fortune, can have no place and civilized society, a man may possess a in nations of hunters, among whom all men, much greater fortune, and yet not be able to being equal in fortune, must likewise be very command a dozen of people. Though the nearly equal in birth. The son of a wise and produce of his estate may be sufficient to main- brave man may, indeed, even among them, tain, and may, perhaps, actually maintain, be somewhat more respected than a man of more than a thousand people, yet, as those equal merit, who has the misfortune to be people pay for every thing which they get the son of a fool or a coward. The differfrom him, as he gives scarce any thing to any ence, however, will not be very great; and body but in exchange for an equivalent, there there never was, I believe, a great family in is scarce any body who considers himself as the world, whose illustration was entirely deentirely dependent upon him, and his autho-rived from the inheritance of wisdom and rity extends only over a few menial servants, The authority of fortune, however, is very The distinction of birth not only may, but great, even in an opulent and civilized society. always does, take place among nations of That it is much greater than that either of age shepherds. Such nations are always strangers or of personal qualities, has been the constant to every sort of luxury, and great wealth can complaint of every period of society which scarce ever be dissipated among them by inadmitted of any considerable inequality of for- provident profusion. There are no nations, tune. The first period of society, that of accordingly, who abound more in families rehunters, admits of no such inequality. Uni-vered and honoured on account of their deversal 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 fa

virtue.

scent from a long race of great and illustri. ous ancestors; because there are no nations among whom wealth is likely to continue longer in the same families.

Among

Birth and fortune are evidently the two circumstances which principally set one man above another. They are the two great sources of per sonal distinction, and are, therefore, the principal causes which naturally establish authority and subordination among men. nations of shepherds, both those causes operate with their full force. The great shep. herd 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 iminemorial 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 greater than that of any of them. In time of

is

war, they are all of them naturally disposed a present never failed to accompany a peti to muster themselves under his banner, rather tion. After the authority of the sovereign, than under that of any other person; and his too, was thoroughly established, the person birth and fortune thus naturally procure to found guilty, over and above the satisfaction him some sort of executive power. By com- which he was obliged to make to the party, manding, too, the united force of a greater was likewise forced to pay an amercement to number of people than any of them, he is best the sovereign. He had given trouble, he had able to compel any one of them, who may disturbed, he had broke the peace of his lord have injured another, to compensate the the king, and for those offences an amercewrong. He is the person, therefore, to whom ment was thought due. In the Tartar goall those who are too weak to defend them-vernments of Asia, in the governments of selves naturally look up for protection. It is Europe which were founded by the German to him that they naturally complain of the and Scythian nations who overturned the injuries which they imagine have been done to Roman empire, the administration of justice them; and his interposition, in such cases, is was a considerable source of revenue, both to more easily submitted to, even by the person the sovereign, and to all the lesser chiefs or complained of, than that of any other person lords who exercised under him any particular would be. His birth and fortune thus natu- jurisdiction, either over some particular tribe rally procure him some sort of judicial authority.

principal advantages which he proposed to obtain by the administration of justice.

or clan, or over some particular territory or district. Originally, both the sovereign and It is in the age of shepherds, in the second the inferior chiefs used to exercise this jurisperiod of society, that the inequality of for- diction in their own persons. Afterwards, tune first begins to take place, and introduces they universally found it convenient to deleamong men a degree of authority and subor- gate it to some substitute, bailiff, or judge. dination, which could not possibly exist be. This substitute, however, was still obliged to fore. It thereby introduces some degree of account to his principal or constituent for the that civil government which is indispensably profits of the jurisdiction. Whoever reads the necessary for its own preservation; and it instructions which were given to the judges seems to do this naturally, and even inde- of the circuit in the time of Henry II. will pendent of the consideration of that necessity. see clearly that those judges were a sort of The consideration of that necessity comes, no itinerant factors, sent round the country for doubt, afterwards, to contribute very much to the purpose of levying certain branches of the maintain and secure that authority and subor- king's revenue. In those days, the admidination. The rich, in particular, are neces-nistration of justice not only afforded a cersarily interested to support that order of tain revenue to the sovereign, but, to procure things, which can alone secure them in the this revenue, seems to have been one of the possession of their own advantages. Men of inferior wealth combine to defend those of superior wealth in the possession of their pro- This scheme of making the administration perty, in order that men of superior wealth of justice subservient to the purposes of reve may combine to defend them in the possession nue, could scarce fail to be productive of seof theirs. All the inferior shepherds and veral very gross abuses. The person who apherdsmen feel, that the security of their own plied for justice with a large present in his herds and flocks depends upon the security of hand, was likely to get something more than those of the great shepherd or herdsman; justice; while he who applied for it with a that the maintenance of their lesser authority small one was likely to get something less depends upon that of his greater authority; Justice, too, might frequently be delayed, in and that upon their subordination to him de- order that this present might be repeated. pends his power of keeping their inferiors in The amercement, besides, of the person comsubordination to them. They constitute a plained of, might frequently suggest a very sort of little nobility, who feel themselves in-strong reason for finding him in the wrong, terested to defend the property, and to sup- even when he had not really been so. port the authority, of their own little sove. such abuses were far from being uncommon, reign, in order that he may be able to defend the ancient history of every country in Eu. their property, and to support their authority. rope bears witness. 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.

That

When the sovereign or chief exercises nis 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 be.

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 They are to be found in Tyrol's History of England

ing 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.

uefit only, that the bailiff had been guilty of still very difficult, not to say impossible. Dur 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 adininistration 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.

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 sove reign 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, Among nations of shepherds, where the so- or by his bailiffs and substitutes, the judges. vereign or chief is only the greatest shepherd Those presents, it seems to have been supposor herdsman of the horde or clan, he is main-ed, could more easily be abolished altogether, tained in the same manner as any of his vas- than effectually regulated and ascertained. sals or subjects, by the increase of his own Fixed salaries were appointed to the judges herds or flocks. Among those nations of hus- which were supposed to compensate to them bandmen, who are but just come out of the the loss of whatever might have been their shepherd state, and who are not much ad-share of the ancient emoluments of justice; vanced beyond that state, such as the Greek as the taxes more than compensated to the tribes appear to have been about the time of sovereign the loss of his. Justice was then the Trojan war, and our German and Scythian said to be administered gratis. ancestors, when they first settled upon the Justice, however, never was in reality ad ruins of the western empire; the sovereign ministered gratis in any country. Lawyers or chief is, in the same manner, only the and attorneys, at least, must always be paid greatest landlord of the country, and is main- by the parties; and if they were not, they tained in the same manner as any other land- would perform their duty still worse than lord, by a revenue derived from his own pri- they actually perform it. The fees annually vate estate, or from what, in modern Europe, paid to lawyers and attorneys, amount, in was called the demesne of the crown. His every court, to a much greater sum than the subjects, upon ordinary occasions, contribute salaries of the judges. The circumstance of nothing to his support, except when, in order those salaries being paid by the crown, can to protect them from the oppression of some nowhere much diminish the necessary expense of their fellow-subjects, they stand in need of of a law-suit. But it was not so much to his authority. The presents which they make diminish the expense, as to prevent the corhim upon such occasions constitute the whole ruption of justice, that the judges were proordinary revenue, the whole of the emolu-hibited from receiving any present or fee from ments which, except, perhaps, upon some very the parties. 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 The whole expense of justice, too, might had been so regulated and ascertained, how easily be defrayed by the fees of court; and, te hinder a person who was all-powerful from without exposing the administration of justice extending them beyond those regulations, was to any real hazard of corruption, the public

The office of judge is in itself so very honourable, that men are willing to accept of it, though accompanied with very small emolu ments. 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.

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