Book V, Chapter I, 4

The third of these causes or circumstances is superiority of fortune. The authority of riches, however, though great at every stage of society, is perhaps greatest at the earliest stages that allow any considerable inequality of fortune. A Tartar chief whose flocks and herds have increased enough to support a thousand men can hardly use that increase in any way other than to support a thousand men. His society in its rudimentary state offers him no manufactured goods, no trinkets or baubles of any kind, for which to exchange the part of his raw produce that exceeds his own consumption. The thousand men he thus supports, being entirely dependent on him for their subsistence, must obey his orders in war and submit to his judgment in peace. He is necessarily both their general and their judge, and his chieftainship follows necessarily from his greater fortune. In an affluent and civilized society, a man may possess a far greater fortune and yet be unable to command a dozen people. Though his estate's produce may suffice to support, and perhaps actually supports, more than a thousand people, they pay for everything they receive from him; he gives hardly anything to anyone except in return for its equivalent. Hardly anyone therefore considers himself entirely dependent on him, and his authority extends only to a few household servants. The authority of fortune, however, remains very great even in an affluent and civilized society. The fact that it is far greater than the authority of either age or personal qualities has been a constant complaint at every stage of society that allowed any considerable inequality of fortune. The first stage of society, that of hunters, allows no such inequality. Universal poverty establishes universal equality among them; superiority in age or personal qualities provides the weak but only foundations of authority and subordination. At this stage of society, therefore, there is little or no authority or subordination. The second stage, that of shepherds, allows very great inequalities of fortune, and at no other stage does superior fortune give its possessors such great authority. Accordingly, at no other stage are authority and subordination more firmly established. The authority of an Arabian scherif is very great; that of a Tartar khan is altogether despotic.

The fourth of these causes or circumstances is superiority of birth. Superior birth presupposes an ancient superiority of fortune in the family of the person who claims it. All families are equally ancient; and a prince's ancestors, though better known, can hardly be more numerous than a beggar's. Antiquity of family everywhere means antiquity either of wealth or of the greatness commonly founded on wealth or accompanied by it. New greatness is everywhere less respected than old greatness. Hatred of usurpers and love for the family of an ancient monarch are largely founded on people's natural contempt for the former and reverence for the latter. Just as a military officer submits without reluctance to the authority of a superior who has always commanded him, but cannot bear to see a former inferior placed above him, so people readily submit to a family to which they and their ancestors have always submitted, but burn with indignation when another family, whose superiority they have never recognized, claims dominion over them.

Distinction of birth follows inequality of fortune and therefore has no place among nations of hunters, where all are equal in fortune and must likewise be nearly equal in birth. The son of a wise and brave man may indeed be somewhat more respected even among them than an equally worthy man who has the misfortune of being the son of a fool or coward. The difference, however, will not be very great; and I believe there has never been a great family in the world whose distinction derived entirely from inherited wisdom and virtue.

Distinction of birth not only can arise among nations of shepherds but always does. Such nations are strangers to every form of luxury, and great wealth can hardly ever be dissipated among them through improvident extravagance. Accordingly, no nations abound more in families revered and honored for descent from a long line of great and illustrious ancestors, because among no nations is wealth more likely to remain longer in the same families.

Birth and fortune are clearly the two circumstances that chiefly place one person above another. They are the two great sources of personal distinction and therefore the principal causes that naturally establish authority and subordination among people. Among nations of shepherds, both causes operate with their full force. The great shepherd or herdsman, respected for his great wealth and the great number of people who depend on him for subsistence, and revered for his noble birth and the immemorial antiquity of his illustrious family, has a natural authority over all the lesser shepherds or herdsmen of his horde or clan. He can command the combined force of more people than any of them. His military power is greater than any of theirs. In war they are all naturally inclined to gather under his banner rather than anyone else's; his birth and fortune thus naturally confer on him a kind of executive power. By commanding the combined force of more people than any of them, he is also best able to compel anyone who has injured another to make amends. Thus those too weak to defend themselves naturally look to him for protection. They naturally bring him complaints about the injuries they believe they have suffered, and even the person complained against submits more readily to his intervention than to anyone else's. His birth and fortune thus naturally confer on him a kind of judicial authority.

It is in the age of shepherds, the second stage of society, that inequality of fortune first begins to arise and introduces among people a degree of authority and subordination that could not previously have existed. It thereby introduces some degree of the civil government indispensable for its own preservation; and it appears to do so naturally, even without regard to that necessity. Awareness of the necessity no doubt comes afterward and greatly helps maintain and secure that authority and subordination. The rich in particular necessarily have an interest in upholding the order of things that alone can secure their advantages. People of lesser wealth join together to defend the property of those with greater wealth so that the latter may join together to defend theirs. All the lesser shepherds and herdsmen feel that the security of their own herds and flocks depends on the security of the great shepherd's or herdsman's; that the maintenance of their lesser authority depends on the maintenance of his greater authority; and that his power to keep those below them subordinate to them depends on their own subordination to him. They form a sort of lesser nobility with an interest in defending the property and supporting the authority of their own lesser sovereign, so that he may defend their property and support their authority. Civil government, insofar as it is instituted to secure property, is in reality instituted to defend the rich against the poor, or those who have some property against those who have none at all.

The judicial authority of such a sovereign, however, far from costing him anything, was for a long time a source of revenue. Those who appealed to him for justice were always willing to pay for it, and a petition never came without a gift. Once the sovereign's authority was fully established, moreover, a person found guilty was forced to pay the sovereign a fine in addition to making restitution to the injured party. He had caused trouble, disturbed and broken the peace of his lord the king, and for these offenses a fine was thought due. In the Tartar governments of Asia, and in the governments of Europe founded by the German and Scythian nations that 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 exercising jurisdiction under him over a particular tribe or clan or a particular territory or district. Originally both the sovereign and the lesser chiefs exercised this jurisdiction in person. Later they all found it convenient to delegate it to a substitute, bailiff, or judge. This substitute, however, still had to account to the person who appointed him for the profits of his jurisdiction. Anyone who reads the instructions (They are to be found in Tyrol’s History of England) given to the circuit judges in the time of Henry II will clearly see that those judges were a kind of traveling agents sent around the country to collect certain branches of the king's revenue. In those days administering justice not only brought the sovereign a certain revenue, but obtaining that revenue seems to have been one of the chief advantages he hoped to gain from administering justice.

This scheme of making the administration of justice serve the purposes of revenue could hardly fail to produce several very serious abuses. The person who sought justice with a large gift in hand was likely to receive something more than justice, while the one who brought a small gift was likely to receive something less. Justice, too, might often be delayed to make the gift recur. The fine imposed on the person complained against could also often provide a strong reason to find him in the wrong even when he was not. That such abuses were far from rare is attested by the ancient history of every European country.

When the sovereign or chief exercised judicial authority in person, however much he abused it, redress must have been almost impossible, for there could seldom be anyone powerful enough to hold him accountable. When he exercised it through a bailiff, redress could sometimes be obtained. If the bailiff committed an injustice solely for his own benefit, the sovereign might not always be unwilling to punish him or require him to repair the wrong. But if he committed an act of oppression for his sovereign's benefit, to court the favor of the person who appointed him and might promote him, redress would usually be as impossible as if the sovereign himself had committed it. Accordingly, in all barbarous governments, particularly the ancient governments of Europe founded on the ruins of the Roman empire, the administration of justice appears to have remained extremely corrupt for a long time: far from wholly fair and impartial even under the best monarchs, and utterly venal under the worst.

Among nations of shepherds, where the sovereign or chief is merely the greatest shepherd or herdsman of the horde or clan, he maintains himself as any of his vassals or subjects does, from the increase of his own herds or flocks. Among farming nations that have only just emerged from the shepherd state and have not advanced much beyond it, such as the Greek tribes appear to have been around the time of the Trojan war, and our German and Scythian ancestors when they first settled on the ruins of the western empire, the sovereign or chief is similarly only the country's greatest landlord. He maintains himself like any other landlord on revenue from his own private estate, or from what in modern Europe was called the demesne of the crown. Ordinarily his subjects contribute nothing to his support, except when they need his authority to protect them from oppression by fellow subjects. The gifts they make him on such occasions constitute all the ordinary revenue, all the proceeds that he derives from his dominion over them except perhaps in very extraordinary emergencies. When Agamemnon, in Homer, offers Achilles sovereignty over seven Greek cities in exchange for his friendship, the only benefit he mentions is that the people will honor him with gifts. So long as such gifts, the proceeds of justice, or what might be called court fees, formed the whole ordinary revenue the sovereign derived from sovereignty, one could hardly expect, or even decently propose, that he should surrender them entirely. It could be, and often was, proposed that he regulate and fix them. But once they were regulated and fixed, preventing an all-powerful person from increasing them beyond those limits remained very difficult, if not impossible. As long as this state of affairs endured, therefore, the corruption of justice that naturally arose from the arbitrary and uncertain nature of such gifts hardly admitted of any effective remedy.

But when, for various reasons and chiefly because of the continually rising expense of defending the nation against invasion by other nations, the sovereign's private estate became entirely insufficient to meet the expenses of sovereignty, and when people had to contribute to those expenses through various taxes for their own security, it seems to have become a common stipulation that neither the sovereign nor his bailiffs and deputies, the judges, should accept any gift for administering justice on any pretext. Such gifts, it seems, were thought easier to abolish entirely than to regulate and fix effectively. Fixed salaries were assigned to the judges to compensate them, it was supposed, for losing their share of the old proceeds of justice, just as the taxes more than compensated the sovereign for losing his. Justice was then said to be administered free of charge.

Justice, however, was never really administered free of charge in any country. Lawyers and attorneys, at least, must always be paid by the parties; if they were not, they would perform their duties even worse than they actually do. The fees paid annually to lawyers and attorneys amount in every court to far more than the judges' salaries. The fact that those salaries are paid by the crown can nowhere greatly reduce the necessary expense of a lawsuit. The judges were prohibited from receiving any gift or fee from the parties not so much to reduce expense as to prevent the corruption of justice.

The third cause is having more wealth. Wealth gives a person authority in every kind of society. But it may give the most authority in the least developed societies where wealth can differ substantially. Suppose a Tartar chief’s flocks and herds grow enough to feed a thousand men. He has little choice but to use the extra animals to feed a thousand men. His society has no manufactured goods, trinkets, or ornaments for which he can trade the part of his livestock he does not need himself. The thousand men he supports depend on him entirely for food. They must follow his orders in war and accept his judgments in peace. He must be their general and their judge. His position as chief follows directly from his greater wealth. In a rich, civilized society, a man can own far more and still be unable to command a dozen people. His estate may produce enough to support more than a thousand people and may actually support them. But all those people pay for what they receive from him. He gives almost nothing to anyone without receiving something of equal value in return. Almost no one therefore considers themselves wholly dependent on him, and his authority reaches only a few household servants. Wealth still brings great authority even in a prosperous, civilized society. People have complained throughout every period marked by considerable inequality of wealth that it brings far more authority than either age or personal qualities. In the first stage of society, among hunters, there is no such inequality. Everyone is poor, which makes everyone equal. Age and personal qualities are the only sources of authority and hierarchy, and they are weak ones. So there is little or no authority or hierarchy at that stage. In the second stage, among shepherds, wealth can be very unequal. At no other stage does greater wealth give its owners so much authority. Consequently, at no other stage are authority and hierarchy more firmly established. An Arabian scherif has great authority; a Tartar khan has complete, despotic power.

The fourth cause is higher birth. A claim to higher birth assumes that the claimant’s family was wealthy long ago. Every family is equally old. A prince’s ancestors may be better known than a beggar’s, but there can hardly be more of them. An old family is really one that has long been wealthy or long held a high position, which is usually based on or accompanied by wealth. People everywhere respect a recently powerful family less than one powerful for generations. Their hatred of people who seize a throne and their affection for an old ruling family are largely based on contempt for the first and reverence for the second. A military officer readily accepts orders from a superior who has always commanded him but cannot bear being put under someone formerly beneath him. In the same way, people readily accept a family that they and their ancestors have always obeyed. But they are furious when a family whose superiority they have never recognized claims power over them.

Distinctions of birth arise only after differences in wealth. So they cannot exist among hunters, who are equal in wealth and must therefore be nearly equal in birth. Even among hunters, the son of a wise, brave man might receive somewhat more respect than someone equally capable whose father was a fool or coward. But the difference will not be great. I believe no great family has ever owed all its prestige to an inherited legacy of wisdom and virtue.

Among shepherding peoples, distinctions of birth can arise and always do. Such peoples are not familiar with any kind of luxury, and even lavish, careless spending can hardly use up great wealth among them. No other peoples have more families honored and respected for descending from a long line of great and famous ancestors. That is because nowhere else is wealth more likely to stay in the same families for so long.

Birth and wealth are clearly the two main things that raise one person above another. They are the two great sources of personal distinction and therefore the main natural causes of authority and hierarchy. Both operate at full strength among shepherding peoples. A great shepherd or herdsman is respected for his wealth and for the many people who depend on him for food. He is also revered for his noble birth and his famous family, whose high standing goes back beyond anyone’s memory. This gives him a natural authority over the other shepherds and herdsmen of his horde or clan. He can call on more people to act together than any of them can, so his military power is greater. In war they are naturally more inclined to gather under his banner than under anyone else’s. His birth and wealth thus give him a kind of executive authority. Because he can bring more people together than anyone else, he is also best able to compel someone who has injured another person to make up for it. People too weak to defend themselves naturally turn to him for protection. They bring him complaints about injuries they believe they have suffered. Even the person accused finds it easier to accept his intervention than anyone else’s. So his birth and wealth also give him a kind of judicial authority.

In the age of shepherds, society’s second stage, inequality of wealth first appears. It creates a degree of authority and hierarchy that could not have existed before. It thereby creates some of the civil government needed to protect that wealth. This seems to happen naturally, even without anyone thinking about that need. Later, awareness of the need certainly helps sustain and secure the authority and hierarchy. The rich in particular have an interest in supporting the system that alone keeps their advantages safe. People with smaller fortunes join in defending the property of those with larger ones so that the wealthier people will join in defending theirs. Each of the lesser shepherds and herdsmen knows that his own herds and flocks are safe only if the great shepherd’s are safe. He knows his smaller authority depends on the great shepherd’s larger authority, and that obeying the great shepherd gives the great shepherd the power to keep those beneath each lesser shepherd obedient. These lesser leaders form a small nobility. They have an interest in defending the property and authority of their own little ruler so that he can defend their property and authority in turn. To the extent that civil government exists to protect property, it actually exists to defend the rich against the poor, or those who own some property against those who own none.

For a long time, a ruler’s power to administer justice brought him revenue rather than costing him money. People seeking his judgment were always willing to pay, and they always brought a gift with their request. Once his authority was firmly established, the person found guilty had to pay a fine to the ruler as well as compensate the injured party. He had caused trouble, disturbed his lord the king, and broken his peace; a fine was considered due for these offenses. In the Tartar governments of Asia and the European governments founded by the German and Scythian peoples who brought down the Roman empire, administering justice brought substantial revenue. The ruler received it, as did lesser chiefs or lords who had jurisdiction under him over a particular tribe, clan, territory, or district. At first, both rulers and lesser chiefs exercised this power personally. Later they all found it useful to delegate it to a substitute, bailiff, or judge. But the substitute still had to account to the person who appointed him for the income earned from judging cases. Anyone who reads the instructions given to the traveling judges in the time of Henry II (they are in Tyrol’s History of England) will see that these judges were a kind of traveling agents. They were sent around the country to collect certain sources of the king’s revenue. Administering justice then brought the ruler an income. Earning this income even seems to have been one of his main aims in administering justice.

Using the administration of justice to raise revenue was almost bound to cause serious abuses. Someone who brought a large gift when asking for justice was likely to get more than justice. Someone with a small gift was likely to get less. A decision might be delayed so that another gift could be collected. The prospect of a fine from the accused could also create a strong reason to find him at fault when he was not. The early history of every European country shows that such abuses were common.

When a ruler or chief administered justice himself, it was almost impossible to get redress for abuses, however badly he acted. There was rarely anyone powerful enough to hold him accountable. When he worked through a bailiff, it was sometimes possible. If the bailiff had acted unjustly for his own benefit alone, the ruler might be willing to punish him or require him to make things right. But suppose the bailiff had oppressed someone for the ruler’s benefit, to win the favor of the person who appointed him and could promote him. In that case, obtaining redress was usually as impossible as if the ruler had committed the wrong himself. So justice appears to have been extremely corrupt for a long time in all governments considered barbarous, and especially in the early European governments built on the ruins of the Roman empire. Even under the best rulers it was far from fully fair and impartial. Under the worst it was thoroughly dishonest.

Among shepherding peoples, the ruler or chief is simply the greatest shepherd or herdsman in the horde or clan. Like any of his subjects or followers, he lives from the growth of his own herds and flocks. The same is true among farming peoples who have only recently stopped being shepherds and have not developed much beyond that stage. The Greek tribes around the time of the Trojan war seem to have been like this, as were our German and Scythian ancestors when they first settled on the ruins of the western empire. Their ruler or chief was simply the country’s biggest landowner. Like any other landowner, he lived on the revenue from his private estate, or what modern Europeans called the demesne of the crown. His subjects normally gave him nothing for his upkeep, except when they needed his authority to protect them from oppression by other subjects. The gifts they gave him then were all the regular revenue and benefits he received from ruling them, apart perhaps from very unusual emergencies. In Homer, when Agamemnon offers Achilles rule over seven Greek cities to win his friendship, the only benefit he mentions is that their people will honor Achilles with gifts. While gifts and payments for justice, or court fees, were all the ordinary income a ruler received from ruling, no one could reasonably expect him to give them up entirely. It would not even have been proper to ask. People could, and often did, propose setting and controlling the amounts. But once the amounts had been fixed, it remained very difficult, if not impossible, to stop an all-powerful ruler from charging more. While this state of affairs continued, there was hardly any effective way to remedy the corruption caused by gifts whose size was unpredictable and set at the ruler’s discretion.

Eventually, for several reasons, the ruler’s private estate became far too small to cover the cost of governing. The main reason was the continually rising expense of defending the nation against invasions. People then had to contribute through various taxes for their own security. At that point, it seems to have become common to require that neither the ruler nor his bailiffs and deputies, the judges, accept gifts for administering justice under any pretext. People apparently thought it easier to abolish these gifts altogether than to control them and fix their amounts effectively. Judges received fixed salaries, meant to make up for any share of the former income from justice they might have lost. Taxes more than made up for the ruler’s lost income. People then said that justice was administered for free.

But justice has never really been administered for free in any country. The parties must at least pay lawyers and attorneys. Without payment, these professionals would do their jobs even worse than they do now. The fees paid each year to lawyers and attorneys in every court add up to much more than the judges’ salaries. Paying those salaries from the crown’s funds can do little anywhere to lower the necessary cost of a lawsuit. Judges were barred from receiving any gift or fee from the parties mainly to prevent corruption in justice, not to cut its cost.