Chap. 1c: Judicial Expences

PART 2: the Expence of Justice

44 The second duty of the sovereign is to protect every member of society from the injustice or oppression of every other member.

  • The administration of justice requires very different costs in the different periods of society.

 

45 A nation of hunters has:

  • no property that exceeds the value of two or three days labour
  • no established magistrate or any regular administration of justice

Men who have no property can only injure one another in their persons or reputations.

  • When a man kills, wounds, beats, or defames another, the doer receives no benefit.
  • When a person injures another person’s property, the doer’s benefit is often equal to the sufferer’s loss.
  • Envy, malice, or resentment are the only passions which can prompt one man to injure another in his person or reputation.
    • But most men are not very frequently under the influence of those passions.
    • The very worst of men are only occasionally under them.
  • The gratification of those passions do not give any real or permanent advantage.
    • Thus, it is commonly restrained in most men by prudence.
  • Men may live in society with some tolerable security even if there is no civil magistrate to protect them from those passions.
  • The passions which prompt men to invade property are:
    • the avarice and ambition in the rich
    • the hatred of labour and the love of present ease and enjoyment in the poor
  • These passions are much more steady in their operation and much more universal in their influence.
    • “Wherever there is great property there is great inequality.”
    • For every very rich man. there must be at least 500 poor.
      • The affluence of the few supposes the indigence of the many.
      • The affluence of the rich excites the indignation of the poor.
      • The poor are often driven by want and prompted by envy to invade his possessions.
      • The owner of that valuable property can sleep in security only under the civil magistrate’s shelter.
        • That property may have been acquired:
          • by many years’ labour or
          • by many successive generations.
        • He is always surrounded by unknown enemies.
          • He can never appease his enemies.
          • He can be protected from their injustice by the civil magistrate’s powerful arm which continually chastises it.
  • The acquisition of valuable and extensive property necessarily requires the establishment of civil government.
    • Where there is no property that exceeds the value of two or three days labour, civil government is not so necessary.

 

46 “Civil government supposes a certain subordination.”

  • 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.

 

47 Four causes naturally introduce subordination.

 

  1. 48 The superiority of personal qualifications:
    • Strength
    • Beauty
    • Agility of body
    • Wisdom and virtue
    • Prudence
    • Justice
    • Fortitude
    • Moderation of mind
  • The qualifications of the body can give little authority unless supported by the qualifications of the mind.
    • A man who can force two weak men to obey him through bodily strength is a very strong man,
  • The qualifications of the mind can alone give a very great authority.
    • They are invisible qualities, always disputable, and generally disputed.
    • No society has ever settled the rules of precedency of rank and subordination according to those invisible qualities.
    • They have settled it according to something more plain and palpable.

 

  1. 49 The superiority of age.
  • An old man is more respected than a young man of equal rank, fortune, and abilities.
  • Among nations of hunters, such as the North American tribes, age is the sole foundation of rank and precedency.
    • To them:
      • ‘father’ has a superior rank
      • ‘brother’ is of an equal rank
      • ‘son’ is of an inferior rank
  • In the most civilized nations, age regulates rank among those who are equal in every respect.
    • Among brothers and sisters, the eldest always takes place.
    • In the succession of the paternal estate, everything which cannot be divided, such as a title of honour, is given to the eldest in most cases.
  • “Age is a plain and palpable quality which admits of no dispute.”

 

  1. 50 The superiority of fortune.
  • The authority of riches is great in every age of society.
    • It is perhaps greatest in the rudest age of society.
    • Inequality of fortune is greatest in the rudest age of society.
  • The increase of a Mongol chief’s herds and stocks can only be used in maintaining a thousand men.
    • The rude state of his society does not afford him any manufactured produce, any trinkets or baubles, for which he can exchange his surplus rude produce.
    • The thousand men he maintains, depends entirely on him.
      • They must obey him in peace and war.
      • He is their general and judge.
      • His chieftainship is the effect of his superior fortune.
  • In a civilized society, a man may possess more fortune and yet not be able to command a dozen people.
    • His estate’s produce might maintain more than a thousand people.
      • But they pay for everything that they get from him.
      • He gives to others what he gets in equivalent.
      • No one is entirely dependent on him.
      • His authority extends only over a few menial servants.
    • However, the authority of fortune is very great even in an opulent and civilized society.
  • The authority of fortune is much greater than the authority of age or personal qualities.
    • This has been the constant complaint of every society which had any considerable inequality of fortune.
  • The first period of society is the period of hunters.
    • It has no such inequality.
    • Its universal poverty establishes universal equality.
    • The superiority of age or personal qualities are the feeble and sole foundations of authority.
    • There is little or no authority or subordination in this period.
  • The second period of society is the period of shepherds.
    • It has very great inequalities of fortune.
    • It gives the greatest superiority of fortune.
      • This gives great authority to those who possess it.
    • Authority and subordination are most perfectly established in this period.
      • The authority of an Arabian scherif is very great.
      • The authority of a Mongol khan is totally despotical.

 

  1. 51 The superiority of birth.
  • It supposes an ancient superiority of fortune in the family of the person who claims it.
    • All families are equally ancient.
    • A prince’s ancestors may be better known.
      • But they cannot be more ancient than a beggar’s ancestors.
  • Everywhere, the antiquity of family means:
    • the antiquity of wealth or
    • that greatness which accompanies wealth.
  • Everywhere, upstart greatness is less respected than ancient greatness.
    • The hatred of usurpers and the love of an ancient monarch family are founded on:
      • people’s natural contempt for usurpers, and
      • people’s natural veneration for monarchs,
  • A military officer always obeys his superior who has always commanded him.
    • He cannot bear to obey his inferior.
  • Men easily submit to a family which their ancestors have always submitted to.
    • They are angered when another family, whom they had never acknowledged any such superiority, dominates over them.

 

52 The distinction of birth is subsequent to the inequality of fortune.

  • It can have no place in nations of hunters where all men are equal in fortune.
    • They must likewise be very nearly equal in birth.
  • The son of a wise and brave man may be more respected than a man of equal merit who has a coward or foolish son.
    • The difference will not be very great.
  • There never was a great family whose illustration was entirely derived from the inheritance of wisdom and virtue.

 

53 The distinction of birth always takes place among nations of shepherds.

  • Such nations are always strangers to luxury.
  • Great wealth can scarce ever be dissipated among them by improvident profusion.
  • Shepherd nations have the most number of revered families with great ancestors.
    • This is because only shepherd nations can continue the wealth in the same families.

 

54 Birth and fortune are the two circumstances which principally set one man above another.

  • They are:
    • the two great sources of personal distinction, and
    • the principal causes which naturally establish authority and subordination among men.
  • Among nations of shepherds, birth and fortune operate with their full force.
    • The great shepherd has a natural authority over his clan’s inferior shepherds.
    • He is respected because of:
      • his great wealth
      • the many people who depend on him for subsistence
      • his birth’s nobleness, and
      • his illustrious family’s immemorial antiquity.
    • He can command the united force of more people than other shepherds.
    • His military power is greater than that of other shepherds.
      • In wartime, all shepherds naturally gather under his banner.
    • His birth and fortune naturally procures to him some executive power.
      • By commanding the united force of more people, he is best able to compel anyone who has injured another to compensate the wrong.
      • Those who are too weak to defend themselves naturally look up to him for protection.
        • They naturally complain to him of the injuries done to them.
        • His interposition is more easily submitted to even by the person complained of.
    • His birth and fortune naturally procures him some judicial authority.

 

55 The second period of society is the age of shepherds.

  • The inequality of fortune first begins in this period.
  • This period introduces a new degree of authority and subordination.
    • It introduces some civil government necessary for its own preservation.
    • It seems to do this naturally and independent of that necessity.
      • The consideration of that necessity comes afterwards.
      • It contributes very much to maintain and secure that authority and subordination.
  • The rich are necessarily interested to support those who secure them in their own advantages.
    • Poorer men combine to defend the property of richer men so that those richer men may combine to defend the property of the poorer men.
  • All the inferior shepherds feel that their herd’s security depend on the security of the great shepherd’s herds.
    • Their lesser authority depends on his greater authority.
    • Their subordination to the great shepherd keeps their inferiors, in turn, subordinate to them.
    • They constitute a little nobility.
    • They support their sovereign so that he can defend their property and support their own authority.
    • Regarding the security of property, civil government is in reality instituted for the defence of the rich against the poor.

 

56 For a long time, the judicial authority of such a sovereign was his source of revenue .

  • The persons who applied to him for justice were always willing to pay for it.
    • A gift never failed to accompany a petition.
  • After the authority of the sovereign was thoroughly established, the person found guilty was forced to pay a fine to:
    • the injured party and
    • the sovereign.
  • A fine was due because:
    • he had given trouble, and
    • he had disturbed and broke the peace of his king.
  • In the ancient Mongol, German, Scythian governments, the administration of justice was a big source of revenue to the sovereign and his lesser chiefs.
    • Originally, they exercised this jurisdiction in their own persons.
    • Afterwards, they universally found it convenient to delegate it to some substitute, bailiff, or judge.
      • However, this substitute was still obliged to account to his principal or constituent for the profits of the jurisdiction.
  • The judges of Henry II were itinerant agents sent around the country to levy the king’s revenue.
    • In those days, the administration of justice afforded a revenue to the sovereign.
    • Procuring this revenue was one of the principal advantages the sovereign obtained by the administration of justice.

 

57 This scheme of making a revenue out of the administration of justice was prone to gross abuses.

  • The person who applied for justice with a large gift in his hand was likely to get something more than justice.
    • The person who applied for it with a small gift was likely to get something less.
  • Justice might also be frequently delayed so that this gift might be repeated.
  • The fine of the person accused might be a very strong reason for finding him in the wrong even when he was not really so.
    • Such abuses were common in the ancient history of every European country.

 

58 It was impossible to get any redress when the sovereign exercised his judicial authority in his own person and abused it.

  • There could seldom be anybody powerful enough to call the sovereign to account.
  • When the sovereign exercised judicial authority through a bailiff, there might be some redress only the bailiff had been guilty of injustice for the bailiff’s benefit.
    • The sovereign might be willing:
      • to punish him, or
      • to oblige him to repair the wrong.
  • But if the bailiff committed any act of oppression for the sovereign’s benefit, redress would usually be as impossible as if the sovereign had committed it himself.
    • For a long time, the administration of justice was extremely corrupt in:
      • all barbarous governments and
      • all ancient European governments founded on the ruins of the Roman empire.
  • It was far from being equal and impartial even under the best monarchs.
    • It was altogether profligate under the worst monarchs.

 

59 Among nations of shepherds, the sovereign or chief is the only greatest shepherd.

  • He is maintained by the increase of his own herds or flocks in the same way as his subjects.
  • Examples of nations of husbandmen who have just come out of the shepherd state were:
    • The Greek tribes during the Trojan war, and
    • Our German and Scythian ancestors when they first settled on the ruins of the western empire.
  • The sovereign of those nations is their greatest landlord.
    • He is maintained in the same way as any other landlord:
      • by a revenue from his own private estate, and
      • the demesne of the crown in modern Europe.
    • His subjects contributed nothing to his support except when they need his protection.
      • The gifts they give him on such occasions make up his whole ordinary revenue or emoluments.
  • In Homer, Agamemnon offers the sovereignty of seven Greek cities to Achilles for his friendship.
    • The sole advantage he mentions was the gifts the people would give him in honour.
    • The sovereign could not be expected to give up such gifts and the fees of court if they were his whole revenue.
    • He might regulate and ascertain them.
      • But after they had been so regulated and ascertained, it was still very difficult or impossible to hinder him from extending those gifts beyond those regulations.
      • The corruption of justice naturally resulted from the arbitrary and uncertain nature of those gifts.
        • There was no effective remedy to it.

 

60 The sovereign’s private estate became insufficient for defraying the cost of his sovereignty chiefly because of the increasing expences of national defence.

  • When it became necessary for the people to contribute taxes for their own security, it was commonly stipulated that no gift for the administration of justice should be accepted by the sovereign or his judges, bailiffs, and substitutes.
    • Those gifts could more easily be abolished than regulated and ascertained.
  • Fixed salaries were appointed to the judges.
    • It was supposed to compensate to them for the loss of their ancient emoluments of justice, in the same way the taxes more than compensated the sovereign for the loss of his emoluments.
    • “Justice was then said to be administered gratis.”

 

61 “Justice never was in reality administered gratis in any country.”

  • Lawyers and attorneys must always be paid by the parties.
    • If not, they would perform their duty worse.
  • The fees annually paid to lawyers and attorneys are higher than the judges’ salaries.
  • The salaries paid by the crown did not much reduce a lawsuit’s cost.
  • Judges were prohibited from receiving any gift or fee from the parties to prevent the corruption of justice, not to reduce the cost.

 

62 The office of judge is so very honourable that men are willing to accept it with very small emoluments.

  • The inferior office of justice of peace is attended with a good deal of trouble.
    • In most cases, it has no emoluments at all.
    • It is an object of ambition for most of our country gentlemen.
  • The salaries of all judges and the total cost of the administration and execution of justice makes a very small part of government expences in any civilized country.

 

63 The whole expence of justice might be easily defrayed by the fees of court.

  • The public revenue might thus be discharged from a small incumbrance without exposing justice to corruption.
  • When the sovereign has a share in the fees of court, it is:
    • difficult to regulate the fees effectively, and
    • difficult for the sovereign to derive any considerable revenue from them.
  • It is very easy where the judge is the principal person who can reap any benefit from the fees.
    • The law can very easily oblige the judge to respect the regulation.
    • It might not always be able to make the sovereign respect it.
  • There is no additional danger of corruption when:
    • the court fees are precisely regulated and ascertained, and
    • the fees are paid all at once in every process into the cashier or receiver.
      • The fees are distributed by the cashier in known proportions among the judges after the ruling is made, and not before.
      • Those fees do not increase the lawsuit’s cost considerably.
        • It might be enough to defray the total cost of justice.
  • By not paying the fees to the judges until the process is determined, they might be incited to diligence in examining and deciding it.
    • In courts with many judges, those fees might encourage the diligence of each judge by proportioning the share of each judge to the number of hours and days he examined the process.
  • “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 French parliaments, the fees of court are called Epicès and vacations.
    • They make up most of the emoluments of the judges.
  • The Toulouse parliament is second in rank and dignity in France.
    • After all the deductions, the net salary paid by the crown to a judge there is only 150 livres, about 1,572 pence a year.
    • Around seven years ago, that was the yearly wage of a common footman in Toulouse.
    • The distribution of those Epicès is also according to the judge’s diligence.
      • A diligent judge gains a comfortable, moderate revenue.
      • An idle one gets little more than his salary.
  • Those parliaments are perhaps not very convenient courts of justice.
    • They were never accused nor suspected of corruption.

 

64 The court fees were originally the principal support of the English courts of justice.

  • Each court tried to draw as much business as it could to itself.
    • It was willing to take many suits which did not fall under its jurisdiction.
  • The court of king’s bench was instituted for criminal trials only.
    • It took civil suits.
    • The plaintiff pretended that the defendant was guilty of some crime in not giving him civil justice.
  • The court of exchequer was instituted to:
    • levy the king’s revenue, and
    • enforce the payment of the debts due to the king.
  • It took all other suits on contract debts.
    • The plaintiff alleged that he could not pay the king because the defendant would not pay him.
  • Because of such fictions, the courts came to depend on the parties instead of the people depending on the court.
    • Each court tried to draw to itself as many cases as it could through superior dispatch and impartiality.
  • The present admirable constitution of the courts of justice in England was, perhaps, originally formed by this emulation which anciently took place between their respective judges.
    • In his own court, each judge endeavoured to give the speediest and most effective remedy for every sort of injustice.
  • Originally, the courts of law gave damages only for breach of contract.
    • The court of chancery was a court of conscience.
      • It first enforced the specific performance of agreements.
    • When the breach of contract consisted in the non-payment of money, the damage could only be compensated by ordering payment.
      • The payment was equal to a specific performance of the agreement.
      • In such cases, the remedy of the courts of law was sufficient.
        • In other cases, it was insufficient.
  • When the tenant sued his landlord for outing him unjustly of his lease, the damages he recovered were not equal to the possession of the land.
    • For some time, such causes went all to the court of chancery.
    • It was no small loss of the courts of law.
  • The artificial and fictitious writ of ejectment is the most effective remedy for an unjust dispossession of land.
    • It was invented by the courts of law to draw back such cases to themselves.

 

65 A stamp-duty on the law proceedings of each court might afford enough revenue to defray the cost of administering justice without burdening the society’s revenue.

  • It would be levied by that court and paid to maintain its judges and officers.
    • The judges might be tempted to unnecessarily multiply the proceedings on every case to increase the stamp-duty.
  • It was the custom in modern Europe to regulate the payment of the attorneys and clerks of court according to the number of pages they wrote.
    • The court required each page to have a certain number of lines.
      • Each line should have a certain number of words.
    • To increase their payment, the attorneys and clerks contrived to unnecessarily multiply words.
      • It corrupted the law language of every European court of justice.
  • A similar temptation might perhaps create a similar corruption in law proceedings.

 

66 It is unnecessary that the executive branch should manage the fund for justice.

  • That fund might come from the rent of landed estates.
    • The management of each estate could be entrusted to the court to be maintained by the estate.
    • That fund might even come from the interest of money.
      • Its lending out could be entrusted to the court to be maintained by the interest earned.
  • A small part of the court judges’ salary in Scotland comes from the interest of money.
    • The instability of such a fund makes it an improper fund to maintain a perpetual institution.

 

67 The separation of the judicial from the executive power originally arose from the increasing business of society from its increasing improvement.

  • The administration of justice became so laborious and complicated.
    • It required the undivided attention of the judges and clerks.
  • The executive did not have the leisure to attend to private cases.
    • He appointed a deputy to decide for him.
  • In Rome, the consul was too much occupied with political affairs to attend to the administration of justice.
    • A prætor was appointed to administer it.
  • In the European monarchies after the Roman empire, the sovereigns and great lords universally came to consider the administration of justice as too laborious and ignoble for themselves.
    • They universally appointed a deputy, bailiff, or judge.

 

68 When the judicial is united to the executive power, justice is frequently sacrificed to polities.

  • Even without any corrupt views, the executive might think it necessary to sacrifice the rights of a private man to the interests of the state.
  • The liberty of every person depends on the impartial administration of justice.
  • To make every person feel perfectly secure in his rights, the judicial must be separated and made independent from the executive power
    • The judge should not be liable to be removed according to the caprice of that executive power.
      • His salary should not depend on the goodwill or even on the good economy of that power.

Words: 3,863

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