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Wednesday. March 2d 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.

About Liberty Fund:

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


Wednesday. March 2d 1763.

In the last lecture I gave you some account of the government which takes place in az great and powerfull republick when it is subdued by one of its own subjects, such as that of the Roman emperors, that which would soon have been the case at Carthage, which had very large territories on the coast of Africa and Spain, had it not been interrupted by the Roman arms. It actually | took place in the great and powerfull republick of Syracuse, whose great general Dyonysius Blank in MS.30 reduced it under his own power; and happend too in the British republick under Cromwell. This form is no other than that of a military monarchy. The manner in which it is attained to and the instrument which procures it make it still necessary to exercise the authority over the people by a military force. The greatest part of the supreme power comes to be lodged in the hands of the emperor. The executive power and that of making peace and war was entirely in their hands; and the legislative power was so in effect allso, for they soon took the power of making laws from the body of the people to whom it originally belonged and gave it to the Senate. They, being intirely the creatures of the prince, were entirely directed by him, and the laws were in effect of his making. And we find that after the end of the reign of Augustus all the regulations or statutes were not what was properly called laws, that is, decrees of the whole body of the people, | but senatus consulta,31 as the senatus consultum Orphitianum, s.c. Tertul., etc. The emperor had also the power of appointing all magistrates and officers, of which they very soon deprived the people. The judiciall power came also at last in the last resort to the emperor. The people were at first the judges of all causes. The Senate had properly no judiciall authority. They had what is properly called a senatoriall power; they determind all the necessary previous stepsa to peace and war, as levying armies, imposing taxes, and providing for the safety and convenience of the state. But the emperors took also the judiciall power from the people and gave it to the Senate, who as I said being intirely his creatures put it also, as well as the legislative, into his power. And we see also that about the time of Marcus, or Honorious and Arcadius, the laws were made by the emperors themselves, that is, the edicta et rescripta principum had the same effect | as a law, and of such the Codex32 is chiefly composed. The military power was that which put all his orders in execution. These governments were indeed military, but not of the same kind with those of Turky and the east. Tho in the R. Empire the nobles and great men who were obnoxious to the government were often, as we see from Tacitus and Suetonius, massacred in great numbers, yet those who lived at a distance from the court were under a mild government, and lived more peaceably and happily than they did under the Republick, as the governors were more frequently called to an account, and the people could always appeal; and in a word the ancient form of government as to private justice was still allowed to subsist. Whereas in the others there is no regulations or laws at all to direct the administration of justice. The difference is that the monarchy in the one case was formed by those who had lived under the laws in the ancient state, and when they founded the new one it was not for their interest to abolish those | laws of whose salutary effects they themselves had been sensible. Butb the others, in the eastern countries, were all established by Tartarian or Arabian chiefs. The present Sultans, Grand Seignors, Mogulls, and Emperors of China are all of Tartarian descent. These had no knowledge of the benefit of laws; they therefore never thought of continuing the old or of establishing new ones. Their own authority was altogether absolute; the magistrates or bashaws they appointed under them naturally obtained the same power over those who were under their jurisdiction. They had not been accustomed to receive any restraint themselves, nor did they think of imposing any. The bashaws and every inferior magistrate have sovereign power in their own part of the empire. The people livec in a most miserable condition, having their lives and property at the mercy of judges of the lowest order, not much better than a pitifull Justice of Peace or sheriff.—They can indeed be called to account by the emperor, but the people have no way of complaining. There is in this manner no laws | or settled method of administring justice. The caliphs who succeded Mahomet had indeed some better regulations with regard to the administration of justice; but they, falling on that account into peaceable industry and commerce, cared not to go out to war themselves and took the expedient ordinary in such cases: they called in the Turkamans to protect their country. This Tartar nation in the same manner, and others of their employment, in a short time overthrew the empire of the caliphs and made way for the Ottoman family into Europe. In the last the lecture before33 I took notice of the manner in which defensive republicks come to ruin, and I observed also that the institution of slavery made those where it took place fail, but not so soon as the others, and indeed intirely alters the nature of the government. There wasd not amongst all the republicks of Europe any one which was properly a democracy. In some indeed of the smaller ones the people had the power of choosing the magistrates. But there is none where the body of the people had the power of making peace and war, choosing magistrates, | levying taxes, and enacting laws in the last resort, which makes what is properly called a democracy. There were indeed some states who injoyed these rights for some time, but the people have always resigned that power into the hands of the great. The Venetians resigned their power for ever into the hands of the then magistrates, which gave occasion to the Venetian nobility. In a state where slavery takes place all the arts are exercised by slaves; the freemen are all idle and at liberty to attend the publick assemblys. Whereas where no such constitution is allowd the freemen are all engaged in some trade, from whence they can not be seperated without great loss to the state as well as the individualls. I shewed also34 that trade and commerce tend much more to enervate and weaken the military strength of the state where there are no slaves than where there are. Slavery has not been allowed in any of the modern republicks. The people therefore became unfit to be burthened with the publick business, and gave up this power into the hands of a few. Commerce and industry soon rendered | them very rich. The Italian republick had in their hands at that time the most profitable brancches of trade. They had the whole of the silk manufacture, a very profitable one, and the greatest part of the linnen trade. Their situation also gave them an opportunity of having the whole of the East Indian trade that came into Europe pass thro their hands. The Cape of Good Hope was not then discovered; the goods brought from the East Indies were conveyed up the Red Sea, from thence into the Nile, and by that means to Alexandria, where they were brought up by the Venetian and Genoese merchants chiefly, and by them dispersed thro Europe. Milan too, tho no sea port, had great commerc<e>. It was the centre of the trade betwixt the other tns, and had besides the greatest share of the silk trade, which all centered in it. The trade and manufactures in these commonwea<l>ths soon intirely ingrossed the people, who had no time to go to war, or their business would be ruin’d; these therefore, as well as the other states, had recourse to mercenary troops; tho they were never very powerfull nore made any conquests, | they had occasion for troops for the defense against other nations. They therefore engaged the chiefs of the German, Helvetian, or other barbarous nations near the head of Italy to defend their country, for which they paid very high subsidies. The dukes of Milan, particularlyBlank in MS.f , paid subsidies to allmost every prince in Europe. We may allways judge of the wea<l>th of a nation when a war breaks out by observing which of them pays subsidies to its allies. The Empress Queen35 and the King of Prussia never pay subsidies; their extensive dominions make them powerfull, but their countries are not rich. France pays large subsidies to its allies; Britain allmost maintains her allies; Holland does the same when engaged in war; Spain and Portugall, tho they have not commerce, yet derive great riches from their mines and other rich products of their colonies, and accordingly pay some small subsidies. The Italian republicks in the same manner paid subsidies to some of the neighbouring chiefs who engaged to bring 10,000 or 5000 horse, which were then chiefly in request, for their protection. Every small state had some of | these in their pay. This ing soon brought on their ruin. For as soon as these generalls were any way affronted he turned the army against them, who having nothing to defend themselves by, their only resource then acting against them, always fell under his power. In this manner Blank in MS.h de Fero made himself master of Fero, Blank in MS.i de Blank in MS.j of Milan,36 and after him Blank in MS.k who was called in by his successors in his turn compelled Blank in MS.l to give him his only daughter in marriage and settle his dukedome upon him. The family of Medici in the same manner got possession of Florence, tho not in so direct and open a manner.

I have now gone thro all the forms of government which have existed in the world, as far as we have any account, except those that are now in force in Europe. I have given you some account of the sort of government, if it may be call’d so, which takes place in the age ofm hunters; that imperfect and rude sort which takes place amongst shepherds; how these form into states under a chief, which become at last republican, being at first aristocraticall and afterwards democratical, of which there are two sorts, either where slavery | is established or where it is not; and of the military governments which arise from the conquest of a republick; and of that which takes place after the conquest of savage nations. I shall therefore proceed now to give you an account of the origin and constitution of these severall governments. These as well as the others have taken their rise from the same Tartarian species of government.

The German and other[n] northern nations which over ran the Roman provinces in Europe were in the same form of government as the Tartars still are, but somewhat more improv’d; they had the knowledge of agriculture and of property in land, which they have not. The first thing therefore which they set about after they had got possession of any kingdom, as Britain, France, etc., was to make a division of the lands. In this division of the lands the king or leader would have a very great share; the nobles or other chieftans who attended him, and had each their seperate dependents, had also their shares, less considerablyn than those of the king but still very considerable. | These they would give out to others, either for military service or for a certain rent or for both. In this manner the allodiall government of Europe, distinguished from the feudall, arose out of the ruins of the Roman provinces. The feudall government aroseo about 400 years afterwards, about the 9th century. In the allodiall government, the lords held their lands of no one, but possessed them as their own property. The burthens of wardenage, relief, etc. were not then known, and were introduced long after. Besides these the old inhabitants of the country possessed a good part of it. The Saxons indeed seem to have intirely exterminated the inhabitants of England,p37 or put them to the sword. They certainly did not admit them into their society, for tho their is a considerable mixture of the Saxon and Norman language in the Scots and English dialects, as those latter conquerors did not exterminate the inhabitants in the same manner, yet there is no mixture | of the Erse or Welsh in either of them. The conquerors in other countries did not proceed with the same severity. The Franks in Gaul, we see, permitted the old inhabitants to continue. We see in their laws mention made both of the Franks and the Gauls. A man who killed a Gaul, or a Roman as they called him, was to pay for his composition 100 shillings, but for a Frank 300, and generaly the composition is tripled in that manner.38 These allodiall lords, possessing great territories and having great wealth in rents of the produce itself, came to have a great number of dependents as they possessed the whole or the greatest part of the lands of the kingdom. This inequality of property would, in a country where agriculture and division of land was introduced but arts were not practisd, introduce still greater dependanceq than amongst shepherds, tho there too it is very great. For amongst the shepherds one who had got possession of flocks or herds had them maintain’d by the produce of the land, tho’ he did not | pay any thing for it. But whenr the lands were all appropriated, tho one had property in cattle it could be of no service to him unless he got liberty to pasture them from some of these great lords. Now at this time there was no arts practised by them. These people beings rough and wil[l]dt had no discipline amongst them; the country was infested by robbers and banditti, so that the cities soon became deserted, for unless their be a free communication betwixt the country and the town to carry out the manufactures and import provisions no town can subsist. The inhabitants were therefore dispersed, and settled themselves under the different lords.—Another accident, which happend a little before establishment of the feudall governmentu and tended to ruin the commerce of allmost all the western parts of Europe, was the depredations of the Normans and Danes, a rough nation who originally inhabitted the isles and peninsulas of the Baltick Sea and set out frequently on piraticall expeditions, pillaging all the | maritime countries. They made frequent incursions, and frequently pillaged and at last conquered England; and tho our historians give us but an imperfect account of them, yet we find by our old ballads and poems that they made very frequent incursions. They also plundered all the coast of France, and at last conquered Normandy.—The lords therefore had a great number of dependents; some of these held lands of them as tenents, and others were retaind about the house and maintaind by the lord. These werev a set of idle–gentlemen who did not work but consumed the produce of the estate. Of these, which they called H Blank in MS.w villains, a lord would amount to 1000 or more. These two different parties in his dominions put it in the power of the lord to preserve good order amongst them. His tenents naturally hated those idle fellows who eat up the fruits of their labours at their ease, and were allways ready to give their assistance to curb the insolence of his retainers; they again were no less ready to give their assistance to bring the tenents into | proper order. The king also found it absolutely necessary to grant the power of jurisdiction to these lords; for as he had no standing army there could be no other way of bringing the subjects to obeyx rules. A debt could not be taken up, nor an offender punished, any other way. A kings officer would have been laughed at or massacred. This jurisdiction extended not only to those who were their immediate vassalls and dependents, but to all the free and independent men who held of no one (of which there were a considerable number) within certain limits. Besides the power he had of punishing and amerciating, he had also severall of those rights which we now reckon regalia. He had the power of coining money within his jurisdiction, and also of making by laws and statutes {Those which are now called manors in England were formerly allodiall lordships, which afterwards became barronnies and are now called by that name. In these there are still severall regulations with regard to succession and the holding of land alltogether peculiar to themselves.} which were of effect as far as his authority extended, both which would be very necessary at that time. They chief membersz of the state therefore were the king and these lords. But as there would bea a continuall jarring of interests betwixt these two parts of the state, it was necessary to have some middle power betwixt them; | this was attempted to be made out of the other freemen of the severall counties <?by> severall regulations. Every county was divided into so many tythings, as they were called. These were supposed to contain about 10 families. Every man was obliged to enter himself as a member of some tything, and the severall members of it were accountable for the others and obliged to produce the members who had committed any offence, or if they could not do it, to pay his composition. Ten of these tythings made an hundred, and as each of the tythings were accountable for and had authority over the seve<r>all members, so had the hundred over all its members. Besides those there were also tr<i>vings, or trifings, which contained the third part of a county; but the particular office at this court is not well known.—Besides all these was a sort of supreme court in each county which was called the Wightenogema; in this the first member was the sheriff or officer sent to govern it and regulate the affairs of it by the king. Next the bishops of the | county, and the abbots, and even the abesses, for as I said the women of all barbarous nations are intrusted with a considerable share in all their deliberations. Then the great allodiall lords, of which there might be 3 or 4 in a county; and lastly the wights or wise men, the senes, senatores, or patres; these were chosen out of each trithing, hundered, or even tything, and from them the court was called the Wightenogema, or the council of the wise men. To this court were accountable not only the severall tythings but the hundreds and even the trivings. — — —

[z]‘gre’ deleted

[30 ]Blank in MS. The elder.

[31 ]i.e. resolutions of the Senate only and not of the Comitia or popular assembly. The Orphitianum (a.d. 178) and the Tertullianum (in Hadrian’s reign) both dealt with succession between mother and child.

[a]Reading doubtful

[32 ]That part of Justinian’s Corpus Juris Civilis which contained imperial legislation. Imperial edicts and rescripts were in fact common from the second century a.d. onwards.

[b]‘in’ deleted

[c]Reading doubtful

[33 ]Numbers written above the last five words appear to indicate that they were intended to read ‘the lecture before the last’. Cf. 76–87 above.

[d]Replaces ‘is’

[34 ]82 above.

[e]‘made great’ deleted

[f]Blank in MS.

[35 ]Presumably the Empress of Russia (Catherine II at this date) is intended.

[g]‘the’ deleted

[h]Blank in MS.

[i]Blank in MS.

[j]Blank in MS.

[36 ]Gian Galeazzo Visconti became first Duke of Milan in 1395; Francesco Sforza married the natural daughter of Filippo Maria, the last Visconti Duke, and himself became Duke in 1450. ‘Fero’ is perhaps Ferrara, ruled by the Este family.

[k]Blank in MS.

[l]Blank in MS.

[m]‘shepherds’ deleted

[n]Numbers written above the last two words indicate that their order was intended to be reversed

[o]Illegible word deleted

[p]Replaces ‘Britain’

[37 ]Hume, History, I.401: ‘The Saxons, who conquered England, as they exterminated the antient inhabitants . . .’

[38 ]Pactus legis Salicae, 41, provides for a penalty of 100 solidi for the homicide of a ‘Roman’ and of 200 solidi for that of a Frank: Montesquieu, XXVIII.3 and XXX.25.

[q]Replaces ‘inequality’

[r]‘agricult’ deleted

[s]‘a’ deleted

[t]‘people’ deleted

[u]‘which’ deleted

[v]‘just’ deleted

[w]Blank in MS. Probably ‘Hommes’.

[x]Illegible word deleted

[y]‘state therefore was’ deleted

[z]Replaces an illegible word

[a]Replaces ‘make’