We come now to explain how one man came to have more authority than the rest, and how chieftains were introduced. A nation consists of many families who have met together, and agreed to live with one another. At their public meetings there will always be one of superior influence to the rest, who will in a great measure direct and govern their resolutions, which is all the authority of a chieftain in a barbarous country. As the chieftain is the leader of the nation, his son naturally becomes the chief of the young people, and on the death of his father succeeds to his authority. Thus chieftainship becomes hereditary. This power of chieftainship comes in the progress of society to be increased by a variety of circum stances. The number of presents which he receives, increase his fortune, and consequently his authority; for amongst barbarous nations nobody goes to the chieftain, or makes any application for his interest, with out something in his hand. In a civilized nation the man who gives the present is superior to the person who receives it, but in a barbarous nation the case is directly opposite.
PUBLIC JURISPRUDENCE 17 We shall now consider the different powers which naturally belong to government, how they are distributed, and what is their progress in the first periods of society.
The powers of government are three, to wit, the legis lative, which makes laws for the public good: the judicial, or that which obliges private persons to obey these laws, and punishes those who disobey: the executive, or as some call it, the federal power, to which belongs the making war and peace1.
All these powers in the original form of government belonged to the whole body of the people. It was indeed long before the legislative power was introduced, as it is the highest exertion of government to make laws and lay down rules to bind not only ourselves, but also our posterity, and those wrho never gave any consent to the making them. As for the judicial power, when two persons quarrelled between themselves, the whole society naturally interposed, and when they could not make up matters, turned them out of the society. During this early age crimes were few 2, and it was long before the punish ment was made equal to the crime.
Cowardice and treason were the first crimes punished, for cowardice among hunters is considered as treason, because when they went out in small numbers, if their enemy attacked them, and some of their party deserted them, the rest might suffer by it, and therefore they who deserted were punished for treason.
The priest generally inflicted the punishment, as it were by command of the gods, so weak at that time was govern ment. The power of making peace and war in like manner belonged to the people, and all the heads of families were consulted about it Though the judicial power which concerns individuals 1 ' La puissance legislative'; quieu, Esprit des lots, liv. xi. ch.vi. 'la puissance executrice '; 'la 2 I.e. ' of few kinds,' not ' inpuissancc de juger.' Montes- frequent.' Cf. pp. 18, 19.
C l8 PART I: JUSTICE was long precarious, the society first interposing as friends and then as arbitrators, the executive power came very soon to be exerted absolutely. When any private quarrel happens concerning the property of this cow, or of that ox, society is not immediately concerned, but it is deeply interested in making peace and war. In the age of shepherds this power is absolutely exerted. In Great Britain we can observe vestiges of the precariousness of the judicial power, but none of the executive. When a criminal was brought to trial, he was asked how he would choose that his cause should be decided, whether by combat, the ordeal trial, or the laws of his country. The society only obliged him not to disturb them in the decision. In England the question still remains, though the answer is not now arbitrary1. It was very common in the ruder ages to demand a trial by dipping their hands in boiling water, by means of which almost every one was found innocent, though now scarce any one would escape by this means. When people were constantly exposed to the weather, boiling water could have little effect upon them, though now, when we are quite covered, it must have a contrary effect-. This choice of trial shows the weakness of the judicial laws. We find that the judicial combat continued in England as late as the days of Queen Elizabeth3. It has now worn out gradually and insensibly without so much as a law or a rule of court made against it. In the periods of hunters and fishers, and in that of shepherds, as was before observed, crimes are few; small crimes passed without any notice. In those ages no con troversies arose from interpretations of testaments, settle ments, contracts, which render our law-suits so numerous, 1 I.e. is not now dependent on accustomed to arms and labour, the will of the accused. Esprit des lots, liv. xxviii. ch. xvii.
2 Montesquieu attributes sue- 3 John Dairy m pie, Essay to- cess in passing the ordeal of fire wards a General History of Feudal or boiling water to the callous Property in Great Britain, third nature of the skin of people edition, 1758, p. 312.
PUBLIC JURISPRUDENCE 19 for these were unknown among them. When these took place and difficult trades began to be practised, contro versies became more frequent, but as men were generally employed in some branch of trade or another, without great detriment to themselves they could not spare time to wait upon them. All causes must be left undecided, which would be productive of every inconvenience, or they must fall upon some other method more suitable to the several members of society. The natural means they would fall upon would be to choose some of their number to whom all causes should be referred. The chieftain who was before this distinguished by his superior influence, when this comes to be the case, would preserve his wonted pre cedence, and would naturally be one of those who were chosen for this purpose. A certain number would be chosen to sit along with him, and in the first ages of society this number was always considerable1. They would be afraid to trust matters of importance to a few, and accordingly we find that at Athens there were 500 judges at the same time2. By this means the chieftain would still further increase his authority, and the government would appear in some degree monarchical. But this is only in appearance, for the final decision is still in the whole body of the people, and the government is really democratical.
The power of making peace and war, as was before observed, was at first lodged in the whole body of the people. But when society advanced [and] towns \vere fortified, magazines prepared, stocks of money got together, generals and officers appointed, the whole body of the people could not attend to deliberations of this kind. This province would either fall to the court of justice, or 1 Brady, quoting from Tacitus, and authority, which were called Germ. cap. 12, says, ' Every one of cotm'fes.' Complete History of Eng- these princes had a hundred of land, 1685, p. 55. the common people their asses- 2 W. of N. bk. v. ch. i. pt. 3, sors, from whom they had advice art. 2, vol. ii. pp. 361, 362.
20 PART I: JUSTICE there would be another set of people appointed for this purpose, though it would naturally at first fall to the court of justice. This is properly called the senatorial power, which at Rome took care of the public revenue, public buildings, and the like. But afterwards at Rome, the court of justice and the senatorial one became quite distinct. The same may be said of the Areopagite court at Athens.
We shall now make some observations on nations in the two first periods of society. Those, viz. of hunters and shepherds.
In a nation of hunters and fishers few people can live together, for in a short time any considerable number would destroy all the game in the country, and consequently would want a means of subsistence. Twenty or thirty families are the most that can live together, and these make up a village. But as they live together for their mutual defence, and to assist one another, their villages are not far distant from each other. When any controversy happens between persons of different villages, it is decided by a general assembly of both villages. As each particular village has its own leader, so there is one who is the leader of the whole nation. The nation consists of an alliance of the different villages, and the chieftains have great influence on their resolutions, especially among shepherds. In no age is antiquity of family more respected than in this. The principle of authority operates very strongly, and they have the liveliest sense of utility in the main tenance of law and government.
The difference of the conduct of these nations in peace and war is worth our observation.
The exploits of hunters, though brave and gallant, are never very considerable. As few of them can march to gether, so their number seldom exceeds 200 men, and even these cannot be supported above fourteen days. There is therefore very little danger from a nation of hunters. Our colonies are much afraid of them without any just grounds.
PUBLIC JURISPRUDENCE 21 They may indeed give them some trouble by their inroads and excursions, but can never be very formidable1. On the other hand a much greater number of shepherds can live together. There may be a thousand families in the same village. The Arabs and Tartars, who have always been shepherds, have on many occasions made the most dreadful havoc. A Tartar chief is extremely formidable, and when one of them gets the better of another, there always happens the most dreadful and violent revolutions. They take their whole flocks and herds into the field along with them, and whoever is overcome loses both his people and wealth. The victorious nation follows its flocks, and pursues its conquest, and if it comes into a cultivated country with such numbers of men, it is quite irresistible. It was in this manner that Mahomet ravaged all Asia-.
There is a very great difference betwixt barbarous nations and those that are a little civilized. Where the land is not divided, and the people live in huts which they carry about with them, they can have no attachment to the soil, as all their property consists in living goods which they can easily carry about with them. On this account bar barous nations are always disposed to quit their country. Thus we find such migrations among the Helvetii, Teu- tones, and Cimbrians. The Huns, who dwelt for a long time on the north side of the Chinese wall, drove out the Astrogoths on the other side of the Palus Maeotis, they again the Wisigoths, &c.
[§ 3. How Republican Governments were introduced] Having considered the original principles of government, and its progress in the first ages of society, having found 1 Douglass, British Settlements ist's mistake for 'Arabia.' This in North America, vol. i. p. 183, paragraph reappears without im- note. portant alteration in W. of N. bk.
22 PART I: JUSTICE it in general to be democratical, we come now to consider how republican] governments were introduced.
It is to be observed in general that the situation of a country, and the degree of improvement of which it is susceptible, not only in the cultivation of the land, but in other branches of trade, is favourable to the introduction of a republican government. There is little probability that any such government will ever be introduced into Tartary or Arabia, because the situation of their country is such that it cannot be improved. The most part of these is hills and deserts which cannot be cultivated, and is only fit for pasturage. Besides, they are generally dry, and have not any considerable rivers1. The contrary of this is the case in those countries where republican governments have been established, and particularly in Greece. Two-thirds of Attica are surrounded by sea, and the other side by a ridge of high mountains. By this means they have a communication with their neigh bouring countries by sea, and at the same [time] are secured from the inroads of their neighbours. Most of the European countries have most part of the same advantages. They are divided by rivers and branches of the sea, and are naturally fit for the cultivation of the soil and other arts. We shall now see how favour able this is to the reception of a republican government.
We may suppose the progress of government in Attica in the infancy of the society to have been much the same with that in Tartary and the other countries we have mentioned, and we find in reality that at the time of the Trojan war it was much in the same situation, for then there was little or no cultivation of the ground, and cattle was the principal part of their property. All the contests about property in Homer regard cattle2. Here, as in every other country in the same period, the 1 Different reasons for the same quieu, Esprit des lois,\\v. xvii.ch.vi. proposition are given by Montes- 2 E.g. Iliad, I. 154, XI. 670.
PUBLIC JURISPRUDENCE 23 influence of the chieftain over his own vassals was very considerable. A people inhabiting such a country, when the division of land came to take place and the cultivation of it to be generally practised, would naturally dispose of the surplus of their product among their neighbours, and this would be a spur to their industry. But at the same time it would be a temptation to their neighbours to make inroads upon them. They must therefore fall upon some method to secure themselves from danger, and to preserve what it formerly cost them so much trouble to procure. It would be more easy to fortify a town in a convenient place than to fortify the frontiers of the whole country, and accordingly this was the method they fell upon. They built fortified towns in the most convenient places, and whenever they were invaded took shelter in them with their flocks and moveable goods, and here they cultivated the arts and sciences. Agreeable to this, we find that Theseus fortified Athens and made the people of Attica carry into it all their goods1, which not only increased his power over them, but also the authorit}' of that state above others. When people agreed in this manner to live in towns, the chieftains of the several clans would soon lose their authority, and the government would turn republican, because their revenue was small, and could not make them so conspicuous and distin guished above others as to retain them in dependence. The citizens gradually increase in riches, and coming nearer the level of the chieftain, become2 jealous of his authority. Accordingly we find that Theseus himself was turned out. After this nine regents were set up who were at first to have authority for life, but were after wards continued only for ten years3. Thus Athens, and in 1 The reporter may have omit- 2 MS. reads 'his' after 'become.'
ted some qualifying phrase such 3 It was the single 'regent' or as 'to market' or 'in time of archon who held office at first for war.' life and afterwards for ten years; 24 PART I: JUSTICE like manner all the Greek states, came from a chieftain ship to something like monarchy, and from thence to aristocracy. In general, as was before observed, the revenue becomes insufficient to support the authority of a number of chieftains, but a few, getting into their hands superior wealth, form an aristocracy.
It is to be observed that there is a considerable dif ference between the ancient and modern aristocracies. In the modern republics of Venice, Milan, &c., the govern ment of the state is entirely in the hands of the hereditary nobility, who are possessed of all the three powers of government. Both in modern and ancient aristocracies the people had the choice of those in authority, but the difference is this, that only the nobility could be elected in modern times. The institution of slavery is the cause of this difference. When the free men had all their work done by slaves, they had it in their power to attend on public deliberations, but when the ground came to be cultivated by free men, the lower sort could not have it in their power to attend, but, consulting their interest, they would endeavour to avoid it. Agreeable to this we find that at Venice the populace desired to be free of it. In the same manner the towns in Holland voluntarily gave it up to the town council, which was, in consequence of this, vested with the whole power.
Nothing like this happened in the republics of Greece and Rome. In the early ages of these states, though the populace had the whole power, they were called aristo cracies, because they always chose their magistrate from among the nobility. They were not indeed hindered by any express law to do otherwise, but it was customary when his duties were divided follow John Potter, Archaeologia among nine archons, the office Graeca, 1706. The phrase 'con- became an annual one. The con- tinued them in their government fusion in the text might easily only for ten years ' occurs in that be made by any one trying to work, vol. i. p. 13.
PUBLIC JURISPRUDENCE 25 to do so, because the lower classes were maintained by the fortunes of the rich, and thereby became dependent on them, and gave their vote for him whose bounty they shared. The nobility might differ among themselves about elections, but would never propose the election of plebeians. Thus the influence of the nobility was the law, and not any express prohibition.
At Athens Solon enacted that none of the lower of the four classes into which the people were divided should be elected; but afterwards magistrates were elected out of all classes, and the government became democratical l.
At Rome it was long before the power of being elected extended to the whole body of the people. After decem virs were appointed, the power of the people began to encroach more and more upon the nobles, and still more when they got military tribunes elected. The cause of this was the improvement of arts and manufactures. When a man becomes capable of spending on domestic luxury what formerly supported an hundred retainers, his power and influence naturally decrease. Besides, the great usually had every trade exercised by their own slaves, and there fore the tailors and shoemakers, being no longer dependent on them, would not give them their votes. The popular leaders then endeavoured to get laws passed by which they might be allowed to be elected magistrates. It was long before the generality even of the plebeians would consent to this, because they thought it disagreeable to have their equals so far above them2. In process of time, however, they got it enacted that there should be in authority an equal number of patricians and plebeians, viz., a consul chosen out of each.
1 Potter, Archaeologia Craeca, vol. i. pp. 14, 16.
2 Livy, Hist., lib. iv. cap. 25.
26 PART I: JUSTICE [$4. How Liberty ivas lost.']
We have shown how republics arose, and how they again became democratical; we are next to show how this liberty was lost, and monarchy or something like it was introduced.
Considering these states in the situation above described, as possessed of their towns and a small territory in the adjacent country, they must either confine themselves within their ancient boundaries, or enlarge their territory by conquest. They must either be what may not im properly be called a defensive republic or a conquering one. The Grecian states are a good example of the former, and Rome and Carthage of the latter. We are to show how each of these lost their liberty: and first how the defensive states lost theirs.
When a country arrives at a certain degree of refinement it becomes less fit for war. When the arts arrive at a certain degree of improvement, the number of the people increases, yet that of fighting men becomes less. In a state of shepherds the whole nation can go out to war; and even when it becomes more refined, and the division of labour takes place, and everyone is possessed of a small farm, they can send out a great number. In such an age their campaigns are always in summer, and from seed time till harvest their young men have nothing ado but to serve in them. The whole business at home can be performed by the old men and women, and even these have sometimes beat the enemy in the absence of their soldiers. In a state where arts are carried on, and which consists chiefly of manufacturers1, there cannot be sent out such numbers, 1 The word is used (as always modern sense of ' persons who by Adam Smith) in its old and employ others to make things by more literal sense, not in its machinery.'
PUBLIC JURISPRUDENCE 27 because if a weaver or tailor be called away, nothing is done in his absence. Scarce one in an hundred can be spared from Britain and Holland1. Of an hundred inhabit ants fifty are women, and of fifty men twenty-five are unfit for war. In the last war Britain could not spare so many, as any one almost may be convinced, if he reflect whether among his acquaintances he missed one out of twenty-five. According to this principle Athens, though a small state, could once send out 30,000 fighting men, wrhich made a very considerable figure; but after the improvement of arts, they could not send out more than 10,000, which was quite inconsiderable. Britain, notwithstanding the politeness and refinement at which it has arrived, on account of the largeness of its territories2, can still send out a very formidable army, but a small state necessarily declines. However, there is one advantage attending slavery in a small republic, which seems to be its only advantage, that it retards their declension. At Rome and Athens the arts were carried on by slaves, and the Lace daemonians went so far as not to allow any freeman to be brought up to mechanic employments, because they imagined that they hurt the body. Accordingly we find that at the battle of Chaeronea, when the Athenians were come to a considerable degree of politeness, they were able to send out great numbers of men purely on this account, that all trades were carried on by slaves. We may observe that in the Italian republics, where slavery did not take place, they soon lost their liberty. When, in consequence of the improvement of arts, a state has become opulent, it must be reckoned a great hardship to go out to war, where as among our ancestors it was thought no inconvenience to take the field. A knight (eques) was no more than a horseman, and a foot-soldier was a gentleman. They were inured to hardships at home, and therefore a campaign 1 W. of N. bk. v. ch. i. pt. i, vol. ii. pp. 276-279. - Scil. 'compared with those of Greek states.'
28 PART I! JUSTICE appeared no way dreadful. But when opulence and luxury increased, the rich would not take the field but on the most urgent account, and therefore it became necessary to em ploy mercenaries and the dregs of the people to serve in war. Such persons could never be trusted in war unless reduced to the form of a standing army, and subjected to rigid discipline, because their private interest was but little concerned, and therefore without such treatment they could not be expected to be very resolute in their undertakings. Gentlemen may carry on a war without much discipline, but this a mob can never do. As the citizens in Greece thought it below them to bear arms, and entrusted the republic to mercenaries, their military force was diminished, and consequently a means was provided for the fall of the government. Another cause of their declension was the improvement of the art of war, which rendered everything precarious. In early ages it was very difficult to take a city, as it could only be done by a long blockade. The siege of Troy lasted ten years, and Athens once could with stand for two years1 a siege both by land and sea. In modern times the besiegers have an advantage over the besieged, and a good engineer can force almost any town to surrender in six weeks. But it was not so once. Philip of Macedon made great improvements in this art, which at last occasioned the dissolution of all the Greek governments and their subjection to foreign powers. Rome stood out much longer than Greece because the number of its citizens was daily increasing. At Rome any person might be made a citizen, as this was of little advantage. But at Athens the right of citizenship was given to very few, as it was itself a little estate. However, Rome itself after opulence and luxury increased, shared the fate of other republics, though the event was brought about in a different manner. Till the time of Marius, the better sort of free men went out 1 No siege of Athens of such long duration appears to be known to historians.
PUBLIC JURISPRUDENCE 29 to the field. Marius was the first that recruited [slaves]. He gathered the freed slaves into his army, and established a rigid military discipline. That army which before had consisted of gentlemen was now made up of runaway slaves and the lowest of the people. With such an army Marius conquered and kept in awe the provinces. He had the disposal of all offices and posts in this army. Every one among them owed his rise to him, and was consequently dependent upon him.
Whenever such a general was affronted he would naturally apply to his army for relief, who would easily be induced to side with their general against their own nation. This was the very expedient that Marius fell upon. By the influence of Sylla he was, in his absence, banished from Rome, and a price set upon him. Marius applied to his army, who were determined at all events to follow him, marched to Rome when Sylla was abroad on an expedition against Mithridates, took possession of the government and vanquished Sylla's party. Marius died soon after, and Sylla, having conquered Mithridates, returned to Rome, and in his turn beat the Marian party, changed the government into a monarchy, and made himself perpetual Dictator, though he afterwards had the generosity and magnanimity to resign it. About thirty or forty years afterwards the same thing happened between Caesar and Pompey. Caesar as well as Sylla got himself made perpetual Dictator, but had not enough of public spirit to resign it. His veteran troops which were settled in Italy, mindful of the favours which he conferred upon them, after his death gathered about Octavius, his adopted son, and invested him with the supreme authority. Much the same thing happened in our own country with respect to