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| Tuesday. February 22d. 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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| Tuesday. February 22d. 1763

In the foregoing lecture I endeavoured to explain to you the origin and something of the progress of government. How it arose, not as some writers56 imagine from any consent or agreement of am number of persons to submit themselves to such or such regulations, but from the natural progress which men make in society.— I shewed that in the age of hunters there was nothing which could deserve the name of government. There was in this case no occasion for any laws or regulations, property not extending at this time beyond possession. The little of order which was preserved amongst men in this state was by the interposition of the whole community to accommodate such differences as threatend to disturb the peace of the state. But this was not as judges, but merely to bring about an accommodation and agreement betwixt the parties at variance. The executive power or that of making peace and war was also equally in the hands of the whole people, and each individuall had the same powern as an other. They do not conceive that they have power to force any of the particular persons to engage in war at their pleasure. If two or three families | did not incline to go out to war and commit hostilities against their neighbours, the others were not conceived to have any right to compel them. And in the same way if after the community has made peace with their neighbours a few families should still continue to commit hostilities and make incursions with their scalping parties on their neighbours, the community does not pretend to have any authority to punish them or compel them to submit to the generall agreement. But there is here one difference. Men are generally much more hot and eager when they engage in war than when they make peace. They are for this reason more enraged against those who do not join in the common wars of the country than those who continue hostilities after the generall peace or make incursions without the consent of the others. For this reason it frequently happens that the body of the nation will lye in wait for one who thus denies to join in the common cause, and assassinate him. Tho the other is without doubt more dangerous to the state | and will often bring on the ruin of the whole, yet <he> is not so apt to raise their resentment. But when any one is put to death for that injury to the community, it is not as by the authority the people have over the individualls but in the same way as they would put an enemy to death, thro resentment.— I should also <?say> that the age of shepherds is that where government first commences. Property makes it absolutely necessary. When once it has been agreed that a cow or a sheep shall belong to a certain person not only when actually in his possession but where ever it may have strayed, it is absolutely necessary that the hand of government should be continually held up and the community asserto their power to preserve the property of the individualls. The chase can no longer be depended on for the support of any one. All the animalls fit for the support of man are in a great measure appropriated. Certain individualls become very rich in flocks and herds, possessed of many cattle and sheep, while others have not one single animall. One will have a stock sufficient to maintain himself and 50 or 60 besides | himself, when others have not any thing whereon to subsist themselves. In the agep of the hunters a few temporary exertions of the authority of the community will be sufficient for the few occasions of dispute which can occur. Property, the grand fund of all dispute, is not then known. The individualls may sometimes quarrel where there is no interest of either in question, as school boys will, and perhaps kill one another; but this will but rarely happen, and when it does may be made up with the friends of the injured person, as I showed before,57 by the interposition of the community. But here when in the manner above mentioned some haveq great wealth and others nothing, it is necessary that the arm of authority should be continually stretched forth, and permanent laws or regulations made which may ascertain58 the property of the rich from the inroads of the poor, who would otherwise continually make incroachments upon it, and settle in what the infringement of this property consists and in what cases they will be liable to punishment.59 Laws and government mayr be considered in this | and indeed in every case as a combination of the rich to oppress the poor, and preserve to themselves the inequality of the goods which would otherwise be soon destroyed by the attacks of the poor, who if not hindered by the government would soon reduce the others to an equality with themselves by open violence. The government and laws hinder the poor from ever acquiring the wealth by violence which they would otherwise exert on the rich; they tell them they must either continue poor or acquire wealth in the same manner as they have done.— Settled laws therefore, or agreements concerning property, will soon be made after the commencement of the age of shepherds. The whole of the administration of these rules and settling of all disputes will as I mentioned in the last lecture60 naturally be left to the generall assembly of the whole people. This alone seemss has authority and weight sufficient, or figures enough in the eyes of the men, to claim the determi|nation of any disputes in this respect; therefore the government is entirely democraticall. The community has also here a great opportunity of authority and influence over the individualls; as every club or society has a title to say to the severall members of it, Either submit to the regulations we make or get you about your business, so the community may say to the individualls who are members of it, Either make your behaviour agreable to our laws and rules or depart from amongst us. This will be a very grievous punishment after the society has been some time formed and the members born and bred up in it, as they will then have no other acquaintances or know where to retire to. This authority they may very readily exercise but will not for some considerable time venture any farther.— The executive power or that of making peace and war will also be intirely in the hands of the body of the people. They will have the regulation both of the preparations for the defence of the state | and the determination in what cases war shall be made, etc. But altho the power of the government with regard to the private affairs of individualls under disputes betwixt them was for some time considerably restricted, yet with regard to all public matters their authority was soon after the settlement of shepherds in all countries pretty absolute. The affairs of private persons do not much concern the state; they concern it so far as that it is their interest to prevent disputes from running very high, but then this does not strike immediately at the community. But all those which concern the state directly and immediately will be taken under theirt consideration with much more exactness, and their authority would be more exerted in preventing every thing that tended to the detriment of the community than in the former case. They therefore are much more severe in the prevention of them. I observed before61 that it was not those crimes which | appear the most heinous to individualls which were first liable to what is properly called punishment after compensation had begun to be laid aside, but those which immediately struck at the wellfare of the community. These are two in number, viz treachery and cowardice. Treasonable practises or joining with the enemy must undoubtedly appear very heinous, as it tends immediately to the ruin of the state and is accordingly punished most severely. Cowardice in a common soldier is still liable to punishment, but is not considered as treachery as the running away of one man can have little effect on the fate of the battle. But in a party of hunters or shepherds consisting often of twelve men only, the desertion of one may be the ruin of the whole body and has all the effects of treachery. This therefore is punished as treachery by all early nations. The Germans punished these crimes with death in the manner mentioned by Tacitus chap. 12.62 They punished no other crimes however but theft and robbery, which were punished | by a pecuniary fine. The Tartars in like manner punish no other crimes but these two, and theft and murther; the latter by a pecuniary fine or composition and the other by death. A severe punishment was absolutely necessary as their way of life exposes them much to it. Tho perhaps if the man was able to give it a compensation would be receivd, but then poor persons are those who most commonly commit this crime. There are many things in the modern governments which shew that the government was at some time or other in a very weakly condition with regard to the triall of private causes.— In this country when one comes before the court he is asked how he inclines to be tried; to this he can give now but one answer, viz By God and my country. But formerly he might have given many others. He might have referred it to the judiciall combat and demanded that it should be determined by the strength of | his arm. This plainly was avoiding a submission of his cause to his country, and a demand that it should be determind by the method any one trustsu to in the first ages before government is established. They however have gained here a considerable point. They say to them when they are offered this, which was called the judiciall combat, which they said was trusting their cause to God, that they must notv disturb the country by gathering their dependants together and fighting in a body, but decide by their own private arm. Thus the great end they had in view is considerably answered. That which would otherwise have provd a sort of a rebellion is decided by a single duel. The trial by boiling water and the ordial trial in like manner are all signs of the weak authority of the court, which could not oblige those who came before it to stand to its judgement. They however answered one great end as they put a speedy end to the dispute. We would be apt to imagine that in the triall by boiling water every one would | be brought in guilty. The way was that the person accused should put his hand into a kettle of boiling water and take something from the bottom of it.w {The hand was then wrapt up and sealed, and threex days afterwards it was unloosed and if no scar appeard the person was acquitted.} But the skins of persons who are much abroad or much amongst water, as our ancestors were, the skin becomes hard and callous so that boiling water will not hurt them.63 {A man opened a red hot oyster.} So that very few were brought in guilty. And the same happend in that where they held a piecey of hot iron in their hand, or in the ordial trial. All these were no more than committing the issue of the cause to chance, as it were to a throw of the dice, rather than to the judgement of the country.— They were however very long kept, which shews the weakness of the government with respect to these matters. The judicial combat extended not only to criminall causes when the one party had beat or hurt or affronted an other, but even to civill ones. A dispute concerning the right of an estate was often decided by it. This has now worn into desuetude in England. There was however one demanded as late as Queen Elizabeths time64 with regard to a crim. cause, and one in King Chas. Ist time65 to decide | a criminall one; but they were prevented. There is however no express statute or Act of Parliament or even a rule of court (similar to our acts of sederunt) against it. It has gone into disuse gradually in the same way as villainage. They are both laid aside but no one can tell at what precise time.— But tho the government was late of exercising the greatest authority in private causes, yet in those which immediately concerned the community the authority of the generall assembly of the people became soon very powerfull. And as all matters relating to peace and war, the providing provisions for an army, etc., were of great importance, these were all determined by this generall assembly, and that without any great liberty of dissenting in the hands of any individualls, who were obliged to conform to the determination of the body of the people.— I showed you also66 in what manner a chieftan naturally arose in this state of society. In all these assemblys, whether | for judging in private causes or publick ones and in the executive part, <?some one> would take the lead by his superior power and influence or other means in which he would excell othersz in this mobbish assembly. Whena it was for the reasons explained yesterday67 found necessary to establish a court for the determination of causes, to ease the people of that burthen, this man would naturally be a member of it and continue in it to have his superior influence. The same would be the case when a court was established to take off the hands of the people the less important parts of the executive power, that is, to give a sort of senatorial power to the court, who determined every thing necessary to the safety of the city and the peace and war with their neighbours for some certain length. They had the power of levying armies, providing subsistence for them, taking care of the walls of the city if it had any, receiving ambassadors, and holding all sorts of deliberations whatever. In these courts the leading man would soon become a kind of president; | he would first give his opinion on every question or ask that of others, and those whom he thus preferred before the rest would be looked on as some way of greater importance and weight than the others. This is the very method Tacitus68 mentions was in use in the assemblies of the Germans. I mentioned also69 how the authority of this chieftan was naturallyb hereditary {and went at first to his children in common who made a sort of joint chieftains, and how this was afterwards altered to be either the eldest sons property or the eldest relations.} In all barbarous nations no one can have an audience of the chief man without a present. This is the custom amongst the Mogulls, the Tartars, and all the nations of Africa and America. And our Saxon kings, and even some of the first of the Norman race, never performed any of the common offices of humanity without they had receivd a present before hand. In this time the great all received presents from the poorer sort as a token of their submission to them, intirely contrary to the modern practise where to receive a present is a sign of dependance and inferiority, as it brings the receiver under an obligation to | the donor. But in the early times the<y> did not conceive any obligation to arise from the receiving a favour; they considered it merely as an acknowledgement of authority and submission. This made a considerable part of the revenues of the kings in all early governments. The chief man or president, receiving these gratuities as an addition to his stock, already great and which he cultivated in the same way as the others, would soon become very powerfull, and have extraordinary influence in all the courts. They would appear to be his councils; {His authority would naturally increase very greatly from the naturall disposition of men. One whom we have been accustomed to obey comes in some things [comes] to expect our submission, and we are in the same manner disposed to pay him respect and deference.} and a state of this sort to a careless observer would appear to be monarchicall. {But the king, as they would call him, has properly no power but only weight and authority.} But tho all matters of less importance would be referred to the courts and their president, as the trialls of private causes and the preparations and deliberations for war, yet these in the last resort would bec brought befor<e> the general assembly. The condemning of a criminall, etc., as is the case in | Tartary and was so in old Germany, <and> is so at the Cape of Good Hope, the finall declaration of war,d or concluding a definitive treaty of peace, would be referred to the whole body.

The body of the people in this manner transferrse to the courts a part of the judicial andf executive power, or what we may call the senatoriall power. The judicial power gradually rises from being at first merely an interposition as a friend without any legall authority, which however will be of considerable effect if this third person have a great influence with both parties, to be, 2dly, a power resembling that of an arbiter to decide the causes referred to them and inflict some gentle penalty. They then venture on some thing as a punishment for atrocious crimes, as expelling the person from the society, and lastly it comes to be that of a free judiciall authority with which the magistrates are vested, the arise of which from the compositions has been already explained. | With regard to laws and the legislative power, there is properly nothing of that sort in this period[s]. There must indeed be some sort of law as soon as property in flocks commences, but this would be but very short and <?have> few distinctions in it, so that every man would understand it without any written or regular law. It would be no other than what the necessity of the state required. Written and formall laws are a very great refinement of government, and such as we never meet with but in the latestg periods of it. It is a sign of great authority in the government to be able to make regulations which shall bind <them>selves, their posterity, and even persons who are unwilling. This then is the state of government from the age of hunters thro all the time of shepherds, and even when something of agriculture is practised, that is, till the appropriation of lands.— I shall only observe farther on this head some things relating to the state of those countries where this is the state of the government, particularly | with regard to two great nations who have been merely shepherds as far back as we can trace them and still are so without the least of agriculture. These are all the nations north of Mount Caucasus thro all Asia, that is, all the whole body of Tartars, and 2dly, of the Arabians.

In the age of hunters it is impossible for a very great number to live together. As game is their only support they would soon exhaust all that was within their reach. Thirty or forty families would be the most that could live together, that is, about 140 or 150 persons. These might live by the chase in the country about them. They would also naturally form themselves into these villages, agreeing to live near together for their mutuall security. In the same manner tho they could not conveniently enlarge their village, yet severall sets or tribes of this sort would agree to settle their villages as near as they could conveniently, | that they might be at hand to give on<e> another assistance and protection against the common enemy. In the same manner as there would be some men in each village who would preside in the affairs of it, so there would be some one who would have a superior influence over the other chiefs and become in this manner a chief of chiefs, or king of kings. As the affairs of each family would be determined by the members of it, of a village by the members of it, so would the affairs of the communityh or association of villages by the members of the whole directed by their president, and the chief president receivingi the lead in all these would appear a sort of sovereign. This is the case in Africa, Asia, and America; every nation consists of an association of different tribes or villages. In the age of shepherds these societies or villages may be somewhat larger than in that of hunters. But still they can not be very large, as the country about would soon be eat up by their | flocks and herds. So that the ground for 4 or 5 miles about will not be able to maintain the flocks of above 1000 people, and we never find that the villages amount to a greater number in any country of shepherds.j These may in like manner combine together under their different heads to support one another against the attacks of others. We see that the Grecian nations were in this man<n>er led on by Agamemnon.— There is however one great difference betwixt men in the one state and in the other. The hunters can not form any very great schemes, nor can their expeditions be very formidable. It is impossible that 200 hunters could live together for a fortnight. They could not find subsistence by the chase when in so large a body, nor have they provisions to carry with them. <N>or if they had by some means or other provided as much as would support them could they transport it, as they have no carriages. The party must therefore carry its provisions or subsist by hunting during the time of their expedition, so that it will be impossible for any considerable number to make any expedition. | A scalping party seldom consists of above ten or twelve. So that there can be no great danger from such a nation. And the great astonishment our colonies in Am. are in on account of these expeditionsk proceeds intirely from their unacquaintedness with arms, for tho they might plague them and hurt some of the back settlements they could never injure the body of the people.70 The case is the same with respect to shepherds as long as we suppose them stationary; but if we suppose them moving from one place to another, 4 or 5 miles every day, we can set no bounds to the number which might enter into such an expedition. If then one clan of Tartars (for instance) should, setting out on an expedition, defeat another, they would necessarily become possessed of every thing which before belonged to the vanquished; for in this state when they make any expedition of this sort wives, children, and flocks and every thing is carried along with them, so that when they are vanquished they will lose their all. The far greater part therefore will follow these | and join themselves to the victor, tho some perhaps might still adhere to the vanquishd chief. If this combined army should be in the same manner successfull against a 2d, a 3d, and [and] a 4th tribe, they would soon become very powerfull, and might in time subdue all the nations of their country about them and become in this means immensely powerfull. So that tho a country possessed by shepherds is never extremely populous yet immense armies may be collected together which would be an evenl match for any of its neighbours. This has happend 2ce or 3ce with regard to Tartary. Tamerlane, having conquered all Tartary, invaded and over ran all Asia with above 1,000,000 of men, a body alltogether invincible. And Cengis Kan with still greater numbers, having conquered all the barbarous nations about the source of the Indus, over ran all the neighbouring countries. The Arabs were in the same way united under Mahomet, whose successors Blank in MS.71 and Omer over ran the neighbouring countries, who could not resist their immense power.

[56 ]Theorists who believe in a historical social contract; cf. v.114 below.

[m]Reading doubtful

[n]Reading doubtful

[o]Reading doubtful

[p]Replaces ‘arm’

[57 ]4 above.

[q]‘a’ deleted

[58 ]The word ‘ascertain’ is apparently used here in the now obsolete sense of ‘secure’.

[59 ]Cf. Locke, Civil Government, § 94: ‘Government has no other end but the preservation of property’.

[r]‘here’ deleted

[60 ]9–10 above.

[s]‘to’ deleted

[t]Illegible word deleted

[61 ]ii.152–3 above.

[62 ]Germania, xii. Traitors and deserters were hanged on trees cowards were drowned in bogs. Cf. Montesquieu, VI.18.

[u]Reading doubtful

[v]Illegible word deleted

[w]Two or three illegible words are interlined here and deleted

[x]Reading doubtful

[63 ]Montesquieu, XXVIII.17.

[y]Reading doubtful

[64 ]Lowe v. Paramour (1571), a criminal case: Dyer’s Reports, 301.

[65 ]Claxton v. Lilburn (1638), a civil case, described in H. C. Lea, Superstition and Force (3rd edn., 1878), 213–14. Trial by battle was abolished by 59 George III, c. 46 (1819).

[66 ]7 ff. above.

[z]Several illegible words deleted

[a]Illegible word deleted

[67 ]15–16 above.

[68 ]Germania, xi.

[69 ]11–12 above.

[b]Reading doubtful

[c]Illegible word deleted

[d]Replaces ‘peace

[e]The words ‘frees itself off’ are interlined at this point

[f]‘senatori’ deleted

[g]Replaces ‘rudest’

[h]Two illegible words deleted

[i]Reading doubtful

[j]An illegible word has been interlined above ‘shepherds’ and apparently deleted

[k]‘they would’ deleted

[70 ]Cf. William Douglass, A Summary . . . of the First Planting, Progressive Improvements, and Present State of the British Settlements in North–America (London, reprinted, 1755), I.191: ‘Upon good enquiry it will be found, that our properly speaking Indian wars have not been so frequent, so tedious, and so desolating, as is commonly represented in too strong a light. . . . In our northern parts, the Indians generally appear in small skulking parties with yellings, shoutings, and antick postures, instead of trumpets and drums; . . . The Indians are not wanderers like the Tartars, but are ramblers . . .’

[l]Reading doubtful

[71 ]Blank in MS. The first two Caliphs were Abu Bakr and Omar.