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Friday February 11th. 1763. - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence [1762]

Edition used:

Lectures On Jurisprudence, ed. R.. L. Meek, D. D. Raphael and P. G. Stein, vol. V of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982).

Part of: The Glasgow Edition of the Works and Correspondence of Adam Smith, 7 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Friday February 11th. 1763.

I have now explained in the four preceding lectures the origin of the perpetuity of marriage, and the injury that is conceived to be done by the infidelity of either party, and why this injury is conceived to be more grievous when committed by the wife against the husband than e contra. I have explain’d also the 4 severall sorts of marriage, the great inconveniencies of polygamy, and made also a comparison betwixt the other 3 sorts. I have shewed also the interest which the wife had in the husbands possessions in these severall sorts; that in the old marriage, where she was in manu mariti, she was considered only as | his servant, and had no more management during his life than as considered in that capacity; and that in the new marriage, where the powe<r> of divorce was common, she had very little power over her fortune; that in the present marriage the wife was in a middle way betwixt the two; as well as the differences betwixt the English and Scots law; and lastly the degrees of consanguinity and affinity in which marriage is reckoned incestuous and is accordingly prohibited.

We may here observe that the prohibitions which are in force in this country with regard to consanguinity, and are borrowed from the law of Moses, are alltogether agreable to nature and reason. It is altogether necessary that the marriage of the mother and the son should be prohibited; the contrary would be shocking and abominable. The marriage of the daughter and the father, of the uncle and the niece, and aunt and nephew, are also prohibited as being naturally shocking and contrary to reason. The marriage of brothers and sisters is also prohibited with great reason and according to naturall Blank in MS.73 . But some of the prohibitions with regard to the marriage of persons connected by affinity appears to | be rather an ordinance of a well regulated police than to be pointed out as naturally and originally improper. There are three points which may be observed with regard to this: 1st, that the passage of Leviticus74 from which this prohibition is collected is rather overstreatched; 2dly, that there are severall well regulated polices where this <is> allowed, with some reason; and 3dly, that it is however a better regulation of police to forbid them.— 1st, the passage in Levit. from which this is collected is ‘Thou shalt not marry the sister of thy wife least it vex her.’ Now the reason here assigned, least it vex her, plainly shews that this proceeded from the customs of the Jews, who allowed of a plurality of wives, and that here it was forbade to marry two sisters at the same time, least they should be jealous of and ill will each other. And it must be a considerable extension of this to make it be a rule in those countries where it is not allowed to have two wives at the same time, but only one after another. 2dly., there are severall countries under no bad regulations where there is no hindrance of these marriages. In the East Indies in particular they are not only allow’d but considered as the most proper of any, and are accordingly very common. | They consider that the sister of the childrens mother is likely to make a better mother in law than any other person; that she is more nearly connected with them and has already something of a parentall affection.75 And in this there is indeed some justice. But we will find perhaps, 3dly, that it is rather more suitable, and a sign of a better regulated police, that they should be prohibited. For tho there is not the same danger of corruption, as the sister of the wife does not before the marriage live in the same house with the husband as his own sister does, yet this prohibition greatly facilitates the sisters living in the house with her sister and her husband. The inseperable barr that is puth to the union of those persons by the law of the country makes all connections of that sort be looked on as abominable and shocking; they are considered as brother and sister, and are accordingly brothers and sisters in law. By this means the house of the married sister is made a certain refuge and shelter for the unmarried sister. As no one but a mad man would be jealous of the brother of his wife, | so by this constitution no one but a mad woman would be jealous of her husband with her sister, unless <he> be a very brutal man, as all intercourse of that sort is looked on as shocking. It may perhaps be true that the sister would make a better mother in law to the children. Yet they perhaps would be still better taken care of if the sister of the mother could live in the house of their father without scandalli tho not as his wife. This she can by the above constitution do very well; and in this case they will probably be very well taken care of, as she considers them as her sisters children without looking on them as the rivalls of her own.

I shall only observe farther with regard to marriage what are the effects of the want of it. The great effect of marriage is that the children are looked on as legitimate and inherit from their father.— On the other hand those children who are not born in lawfull wedlock are not capable of inheriting. They are called spurii, nothi, sine patre nati, etc. These and all other | illegitimate children are conceiv’d to have no relations either by the father or mothers side. Their father is thought to be uncertain, even although he should acknowledge them; and tho the mother is certain yet they are not allowed to succeed her; and on the other hand as they are not supposed to be capable of receiving any thing by inheritance so they are not allowed to make a testament, at least in some countries. These dissadvantages of illegitimacy may in some respects be taken away in Scotland by letters of legitimation issued by the king.76 The effect of these however is only to render the person capable of testing; this however is not used in England. The bastard in both countries, as he was conceived to have no relations, so his goods fell back to the community, and as the king in Scotland and England is the representative of the community in these matters, and ultimus haeres of every one, so he succeeded to the fortunes which illegitimate children may have acquired.77 In Scotland it seems it was thought that where the king was the heir | there was no power to cut him out of his right by testament. (This, viz the succession of the king, indeed is the case in all countries only in case the person have no children; for if he has married and has children they succeed as in other cases <?and his widow> has her tierce of the moveables and the third of his land estate if he has any; and if he has a wife only, she will have the liferent as before of her dower and the half of the moveables;78 {and if a child has beenj born tho it be dead, that is, there was inheritable blood of the marriage, the estates go to the nearest of kin, but this is not allowed if the child be not born at the parents death; it is considered as a res non existens, contrary to the practise of the civill law which accounts children unborn as giving the same rights as those which are born in the time of the father.}) In England on the other hand this notion was never receiv’d, so that there is there no occasion for any such letters; and if they were to be issu’d they would give the person no right which he had not before. But in Scotland they are necessary to give thosek who are illegitimate the power of testing. The inheritance is supposed to be due to the king, and therefore if he does not give up his right to it the person can not give it away to any other; and the kings letters will be fully sufficient to do this. But tho they make him capable of leaving by will, they will not make him capable of succeding ab intestato to any of his relations. Tho the king can dispose of what is his own, yet he can not give one the power of depriving another of his right. The heir at | law, that is, the nearest of the legitimate relations, would in this case be injur’d, and this the king has in this country no power to do. There is however <?a means> by which in most countries bastards may be made legitimate even with regard to the power of inheriting, viz by subsiquent marriage. That is, if one marries a woman who before lived with him as a concubine, the children born <?before> the marriage are supposed to be legitimate and the stain of their blood is conceived to be washed off; which is indeed but a mere fiction as no subsequent deed can alter the manner of their origin. This manner of legitimation was introduced by the later emperors, and from them borrowed by the cannonists and so spread over the greatest part of Europe. The Romans had severall methods of legitimation besides this.79 As they allowed of adoption of the sons whose fathers were alive, so those who were sui juris were adrogated.80 If therefore a naturall son, who [was] as he was reckoned to have no father was sui juris, submitted himself to the patria potestas of his real father, he was reckond to have the same rights with regard to him | as any other who was adrogated. The rescript of the prince81 also legitimated them in every respect.— 4th, if a father presented his son to the parish court or curia, and the son subjectedl himself to be liable to the office of decurio, a parish office of a very troublesome nature, he was said to be legitimated per curiae dationem.82 But this as well as that per adrogationem served only to make him capable of succession with regard to the father and some offices of which he was otherwise incapable; and this was also the effect of another method, viz that by which the later emperors allowed, viz that a father should by testament legitimate his children. The legitimatio per subsequens matrimonium was at first introduced by the later emperors, Anastasius, Xeno,83 etc., but not with design that it should be perpetuall. They ordained that all those who should marry their concubines before a certain time should by that means legitimate their children; and so far was it from being designed to be perpetuall that it was intended to encourage them to marry rather than to keep concubines. Justinian however | made it perpetuall; and from his novells,84 which are generally followed by the cannonists with respect to marriage, the cannonists transcribed it into their law. {The cannonists however introduced some restriction with regard to this which seem not to have been acknowledged by the civill law, as that adulterous bastards, that is, such as were born by a concubine when one or both of the parties was married, could not be legitimate by their marrying on the death of the former wife or husband.} The cannon law, as it was at one time or other in force in all countries of Europe, spread this custom over the whole and it has been accordingly universally receivd, excepting England. The clergy at the time this was introduced into other countries had rendered themselves very odious to the nobility by joinin[in]g with King John and Blank in MS.85 in their designs against the people. So that when this law was proposed they replied nolumus veteres leges Angliae mutari.86 It has been intirely receivd in Scotland. The ecclesiasticall court however receivd this custom, and accounted all those legitimate whose parents had married together;m and as the civil courts did not acknowledge it there have arose several niceities which are unknown in other countries. If one marries a woman who has bore him children before, those born after are without <?doubt> lawfulln and may succeed him; but those who were born before are not by the civill or common lawso | accounted legitimated. These are called speciall and all others generall bastards. These however do not by the English law succeed in preference of the younger sonsp born after the marriage. He is therefore called the mulier Blanks in MS.87 , corrupted from the French Blanks in MS.87 . {Robert IIId. succeeded to Robert IId., tho he was born of Eleanor More88 who was within the prohibited degrees, before the dispensation came from the Pope.} But if the eld<?er> speciall bastard, or bastard enné, gets possession of the estate and is not disturbed by his brothers, and his children are allowd to succeed, they cannot be turned out by the heirs of the mu Blanks in MS.87 . Speciall bastards also are allowed to be clergymen, as they are not reckoned bastards by the ecclesiasticall law, but generall bastards, who are so by both laws, are not. An Act of Parliament however can legitimate any one. The predecessor of Henry the Blank in MS.q , by whom he came to the crown, was a bastard who had been legitimated.89 Other dissadvantages attend bastards in some countries, as they are not capable of publick offices.

[73 ]Blank in MS. Possibly ‘law’ was intended.

[74 ]18:18: ‘Neither shalt thou take a wife to her sister, to vex her, to uncover her nakedness, beside the other in her life time.’

[75 ]Montesquieu, XXVI.14 fin.

[h]Reading doubtful

[i]Reading doubtful

[76 ]Erskine, III.10.3.

[77 ]The words ‘If they have no ch’ are written vertically in the margin at about this point, but may possibly have been deleted. The king acquired only if the bastard died childless.

[78 ]Terce was a life–rent of one–third of the husband’s heritage (land). The bastard’s widow had terce, together with her ius relictae, which was one–third or one–half of his movables, according as there were children or not; ‘tierce’ should be ‘third’ and ‘dower’ should be ‘terce’.

[j]The last two words replace ‘be not’

[k]Reading doubtful

[79 ]Heineccius, I.10.23 ff.

[80 ]A legitimate son became sui iuris (not subject to paternal power) either because his father had died or because he had been emancipated. Adoption, being the transfer of a son from the power of one father to that of another, was a purely private transaction. Adrogation, involving the subjection of an independent person to the power of another, was subject to the approval of the popular assembly. Cf. i.152 above.

[81 ]i.e. the emperor.

[l]Reading doubtful

[82 ]Per oblationem curiae (‘by favour of the court’).

[83 ]In fact Constantine, recorded by Zeno, C. 5.27.5; Anastasius, C. 5.27.6.

[84 ]Novel 89.

[85 ]Blank in MS. Possibly Henry III was intended.

[86 ]Statute of Merton, 20 Henry III, c. 9 (1236).

[m]Reading doubtful

[n]Reading of last four words in MS. doubtful

[o]Reading doubtful

[p]‘after’ deleted

[87 ]Blanks in MS. Mulier puisne, legitimate issue preferred before an elder brother born out of wedlock, known as bastard eigne.

[88 ]Elizabeth Mure, mistress of King Robert II of Scotland, was married to him c. 1347 by papal dispensation, thereby legitimating their children, including the future King Robert III, born c. 1340. Canon law widened the prohibited degrees well beyond those of Leviticus; 64 above.

[q]Blank in MS.

[89 ]Henry VII derived his claim to the throne from his mother’s great–grandfather, John of Gaunt. The bastard ‘predecessor’ (ancestor) was John Beaufort, son of John of Gaunt and Catherine Swynford, whose children, born before their marriage, were legitimated by Act of Parliament.