war, they are all of them naturally disposed
to muster themselves under his banner, rather
than under that of any other person; and his
birth and fortune thus naturally procure to
him some sort of executive power. By commanding,
too, the united force of a greater
number of people than any of them, he is best
able to compel any one of them, who may
have injured another, to compensate the
wrong. He is the person, therefore, to whom
all those who are too weak to defend themselves
naturally look up for protection. It is
to him that they naturally complain of the
injuries which they imagine have been done to
them; and his interposition, in such cases, is
more easily submitted to, even by the person
complained of, than that of any other person
would be. His birth and fortune thus naturally
procure him some sort of judicial authority.
It is in the age of shepherds, in the second
period of society, that the inequality of fortune
first begins to take place, and introduces
among men a degree of authority and subordination,
which could not possibly exist before.
It thereby introduces some degree of
that civil government which is indispensably
necessary for its own preservation; and it
seems to do this naturally, and even independent
of the consideration of that necessity.
The consideration of that necessity comes, no
doubt, afterwards, to contribute very much to
maintain and secure that authority and subordination.
The rich, in particular, are necessarily
interested to support that order of
things, which can alone secure them in the
possession of their own advantages. Men of
inferior wealth combine to defend those of
superior wealth in the possession of their property,
in order that men of superior wealth
may combine to defend them in the possession
of theirs. All the inferior shepherds and
herdsmen feel, that the security of their own
herds and flocks depends upon the security of
those of the great shepherd or herdsman;
that the maintenance of their lesser authority
depends upon that of his greater authority;
and that upon their subordination to him depends
his power of keeping their inferiors in
subordination to them. They constitute a
sort of little nobility, who feel themselves interested
to defend the property, and to support
the authority, of their own little sovereign,
in order that he may be able to defend
their property, and to support their authority.
Civil government, so far as it is instituted for
the security of property, is, in reality, instituted
for the defence of the rich against the poor,
or of those who have some property against
those who have none at all.
The judicial authority of such a sovereign,
however, far from being a cause of expense,
was, for a long time, a source of revenue to
him. The persons who applied to him for
justice were always willing to pay for it, and
a present never failed to accompany a petition.
After the authority of the sovereign,
too, was thoroughly established, the person
found guilty, over and above the satisfaction
which he was obliged to make to the party,
was 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 in 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[47] which were given to the judges
of the circuit in the time of Henry II. will
see clearly that those judges were a sort of
itinerant factors, sent round the country for
the purpose of levying certain branches of the
king's revenue. In those days, the administration
of justice not only afforded a certain
revenue to the sovereign, but, to procure
this revenue, seems to have been one of the
principal advantages which he proposed to obtain
by the administration of justice.
This scheme of making the administration
of justice subservient to the purposes of revenue,
could scarce fail to be productive of several
very gross abuses. The person who applied
for justice with a large present in his
hand, was likely to get something more than
justice; while he who applied for it with a
small one was likely to get something less.
Justice, too, might frequently be delayed, in
order that this present might be repeated.
The amercement, besides, of the person complained
of, might frequently suggest a very
strong reason for finding him in the wrong,
even when he had not really been so. That
such abuses were far from being uncommon,
the ancient history of every country in Europe
bears witness.
When the sovereign or chief exercises his
judicial authority in his own person, how
much soever he might abuse it, it must have
been scarce possible to get any redress; because
there could seldom be any body powerful
enough to call him to account. When he
exercised it by a bailiff, indeed, redress might
sometimes be had. If it was for his own benefit