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Thursday. March. 3d. 1763 [176] - 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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Thursday. March. 3d. 1763 [176]

In my last lecture I begun to explain to you the nature of that government which the severall barbarous nations which over run Europe established in it after the expulsion of the Romans. This as I shewed was the allodial government properly so called. We may observe with regard to it, that it was made as nearly the same as was possible with that which they had lived under in their own country. In that state the affairs of each hamlet or small | district are decided by the severall members of it; any disputes betwixt [of] those of different small districts by the members of larger ones; and the affairs of the whole nation, or disputes betwixt members of the different large divisions, by the assembly of the whole nation and their leader or chief. The government which was established by the Saxons in Britain, the Franks in Gaul, and the Burgundians and Wisigoths in the south of France, were all of this sort.—The first court they established was that of the decennry.b A barbarous nation are very jealous of each individual and oblige him to join with some decennry, and require that this court should be accountable for the behaviour of each of the members of it, and these passed judgement on all affairs within it. 10 of the deceneries made a hundred; which decided the affairs of those who were [members of] different the members ofc decennries, which could not be tried in either of them; and to it also lay an appeal to any one who was dissatisfied with the judgement of his decenery. The whole of these within a county, meeting together, formed the county meeting, which decided the affairs of the different hundreds or appeals from any one. From this county also their lay an appeal to the Kings Court, but this was | allowed only in two cases: the 1st. was in case of a denial of justice, when the county court would not take the cause into consideration; and 2dly, long and unnecessary delay of judgement, when they did not refuse absolutely to try the cause, but only delayed it afterwards, which came to the same thing. This court seems to have been the same with that of the Wittenogemot. In it the king presided; next was the alderman or earl who was judge or president of the county and of all its affairs. Then there came the bishops and abbots and abbesses (as I mentioned already);39 then the severall great allodial lords; and lastly the wi(ghts)tes or wise men. This form of government appears to be very natural and orderly. Nothing could be more naturall than that the affairs of the individualls should be decided by his neighbours. This made the decennry of 10 families or thereabouts, and that if he was not satisfied with this he should appeal to the greater assembly. And if a dispute happend betwixt the members of 2 different lesser assemblies this affair should be decided by both together; but as there was no regular assembly of that number the affa<i>r was left to the next greater one which had a right of trying causes. That from these again the county court determined all appeals. And if an injury had been done to any one by a person | of a different county, as the peace of that county only had been broke in which the action was done, the affair was given over to its determination, whether it was the county to which the offender or the injured belonged; andd if this court delayed or refused judgement, the affair might be lodged before the Kings Court, which was the same with the Witten–ogemot.

This was the government which the Anglo Saxons meant to have established in Britain. But the power of the great lords soon destroyed the order and harmony of its severall parts.—These nations as I mentioned had no commerce of their own. Their lawless and freebooting manner of life also destroyed all the commerce and industry of the former inhabitants, who were obliged to leave the cities and seek possessions and protection in the lands of the several lords. These had no other way of consuming the product of their lands but by giving them out to persons who for that reason became their dependents. They were still but little advanced beyond the state of shepherds, and as they had property in land already established thosee who had got flocks or herds | could reap no benefit from them unless they got lands from these lords. This made the number of their dependents still greater than at any other time of society. The large territories which the Saxons gave to their great lords in this manner procured them immense numbers of dependents. These besides their military service generally paid a small rent, commonly in kind; or if it was in money, this money could be exchanged for nothing but the coarse and rough produce of the earth. This also he could consume no other way but by giving it out to his retainers and dependents. Thus one lord would have had 1000 about his house, and 5000 perhaps settled as tenents on his estate, who all were ready and engaged to follow him in arms to battle. He could therefore with ease, and no one else, keep pe[e]ace within those territories. His power was greater frequently than that of the county court itself, as the half or a third of the county was altogether under his direction. William of Blank in MS.f , who came over with Wm the Conqueror, got the whole of the county | of Chester for his share.40 The only method by which one could obtain justice or payment of any debt which he hadg to demand from one within the limits of his power was to apply to this lord; he easily could procure him satisfaction; but the king himself could not without involving himself in a war about a matter of little consequence. These lords therefore had great jurisdictions independent of all the courts, whose order was thereby intirely destroyed. This disorder increased in the same manner as their power, and at last it came to be generally apprehended that the great lord of a county was hereditary alderman or earl of the county, as he alone could execute that office with ease and could have hindered all others. In the same manner the chief lord in every hundred, etc. came to preside in it. And all these lords became judges, possess’d of large estates which they possessedh altogether free, without those burthens introduced by thei feudall government which I shall mention immediately. As they were always at war with each other and often with the king, their whole power | depended on the service of their retainers and tenents; but the greatest part consisted in their tenents, who held their lands at first during pleasure, in which time they were called munera or presents. When therefore they had occasion to demand any extraordinary service of these tenents (either the lords or the king) they promised them the possession of their lands for a longer term of years. In this manner the munera became at first to be held for the life of the tenent, in which case they were called beneficia. Then in progress of time they were held for the life time of the tenent and of his son, and so on till they came to be altogether hereditary, in which state they were called feuda.41 But in all these different forms, the ground on which they were held was that of military service, for which reason they capitulated for themselves that if the heir by age or otherwise <?was> incapable of performing those duties he should take him into his protection, and the lands also into his hands, and give them over to another, or procure by their means another, who would perform those services which were required, viz | service in war and attendance in council. In this manner arose the emolument of wardenship. In the same manner came in the emolument of marriage, as soon as females were allowed to inherit; for then it became necessary that the lord should have it in his power to give her a husband who would perform those services in a suitable manner. And in some countries this took place even with regard to males, as the pupill was conceived to be accountable to the lord as his tutor in all cases for his marriage, and was liable to fine and amercement in case he marri’d without his consent.—3dly, as every person who held these lands was conceived to hold them for military service, so no one even of age was allowed to take possession of the estate at first. The lord took <it> into his own hands, which was called the right or emolument of primur seisin.42 And again when a pupil came of age, which was at first at 14, as the<y> then could serve in war, afterwards when the armour became heavy at 18, and when still heavier at 21. In both these cases he had ½, one, or two years | rent, according to the custom of the place, to give to the lord as a present before he was admitted to the possession of it; for nothing, not even the common acts of justice, were ever performd without a gratuity. These make the great characteristicks of the feudall holdings.

They had besides this another more accidentall emolument, viz that of escheat, derived from the French eschouter, to fall. If the family became extinct, then it escheated or fell to the lord, and the same was the case if the tenent refused service in war or attendance in council, or if he refused that he was his vassal or any way denied his authority. For these considerations the king gave up all his demesne lands, and the great allodiall lords their estates, to be held as feuda, which before had been held as munera. A tenent who held a feu was very near as good as property. He held it for himself and his heirs for ever. The lord had the dominium directum, but he had the dominium utile which <?was> the principal and most beneficial part of property. He became then considerable more independent than he had been before, tho he was still dependent, and considerably inferior to allodial lands.—Allodium signifyed at first an estate in | land, fundus in general, when all land was free from any burthens. But after another sort of land was introduced, to wit, the feudall lands, it denoted those which were possessed in the old manner and signify’d freej land, whereas feudum denoted those lands which were held by the feudall burthens.—In the manner here mentioned all the munera which were already become beneficia, and all these inferior possessions, came to be held in the feudall manner.

When any of the great allodial lords was in danger of being oppressed by his neighbours, he called for protection from the king against them. This he could not obtain without some consideration he should perform to him. A rude and barbarous people who do not see far are very ready to make concessions for a temporary advantage. They therefore generally agreed to hold of the king in the feudall manner, retaining all his jurisdictions and authority entired,k being subject only to the feudall casualties. In this manner the allodiall possessions as well as the munera and beneficia came to be feudall. This had come in before with regard to the inferior or allodiall lordships. A small one of | this sort, situated betwixt two great ones, saw no better method to obtain protection and prevent his being swallowed up than to submit himself to the feudall holding. He would not consent to become a muneram possessor, as that made him hold precariously from having been altogether independent, he had <no> other method but to hold feudally; and this he would readily agree to, as he and his heirs were still secure of the possession, with the burthen only of those services and some other casualties, as that of talliage,43 or a contribution to pay his lords ransom when taken prisoner, a present to make a dower for his daughter, and another to help to make his son a knight. Those services secured his protection, and in this manner the inferior allodial lords came to hold of the great ones, and these again of the king; and the whole thus held of him either mediately or immediately, and the king was conceived to have the dominium directum of all the lands in the kingdom.—But till within an hundred and fifty years ago their were still some allodial lands, and the maxim nulle terre sans seigneur is but of late invention.—We will find a great confirmation of this account of the feudall government | from Spelman,44 tho he himself does not seem to have understood it and thought it arose immediately after the settlement of the Saxons and other German nations. Bouquet45 has explaind it extremely well. He observes that there was hardly any feudall land in Britain before the conquest by William the Conqueror. The terms of the modern law were all introduced at that time[s] and were intirely unknown before. The Saxon law used, to denote the allodiall lands, the words possidere, habere. Our phraseology of tenere, etc. came about that time allong with the feudall law properly so called, when every one held either mediately or immediately of the king, who had the dom. dir. of the whole, and his tenents of whatever sort, noble or ignoble, the domin. utile. We may observe here also another mistake of the generallity of the writers on this subject. They seem to think that this change of the allodiall into feudall lands was an usurpation of the nobles, as they, according to their opinion, changed a precarious into a certain possession, who took an opportunity | in the troublesome times too nestlep and fix themselves in their estates. But this is altogether a mistake, and was on the other hand an augmentation of the ks power, as we find that there were many allodial lords before that time who were free from all burthens, as is shewn by Bouquet,46 which were hereditary and had many of the regalia and jurisdictions: they had: 1st, t ; 2, ; 3, Blanks in MS.47 ; 4th, the power of making laws; and 5thly, that of coining money. But the strongest proof of any is thatq William the Conqueror, who was a very politickr princes and <k>newt what would aggrandize his own power, changed all at once the allodiall into the feudall government. He by an act of power obliged all the Normans and any of the Saxons whom he permitted to continue to hold of him in the feudall manner. Malcom Keanmoir, who was also a sagacius prince, changed them in Scotland in the same manner. From then the power of the king was as we evidently see greatly increased, and the government administerd in an orderly manner; the times after the conquest appear clear and enlightend compared with those of the Saxon race. And the | same may be observed in France, where during the 2 first races, viz the Merovingian and the Carlovingian races, the greatest disorder and confusion overspreads every thing till the time of Hugh Cappe;48 from thence justice and order begin to be established.

[b]‘The’ deleted

[c]Numbers written above the last four words indicate that they were intended to read ‘the members of different’

[39 ]121 above. Cf. Hume, History, I.143–4.

[d]‘from’ deleted

[e]‘dependents’ deleted

[f]Blank in MS.

[40 ]Hume, History, I.405: ‘He [the Conqueror] gave for instance to Hugh de Abrincis, his sister’s son, the whole county of Chester.’

[g]Reading of last two words doubtful

[h]Replaces ‘held’

[i]‘other’ deleted

[41 ]Dalrymple, 161; i.122 above.

[42 ]Prima seisin, the lord’s right to possess the land on the death of the vassal, until payment of a relief by his successor.

[j]Reading doubtful

[k]Reading doubtful

[l]‘holdings’ deleted

[m]Reading doubtful

[43 ]Tallage: a money tax or tribute.

[n]Replaces ‘these’

[44 ]H. Spelman, ‘The Original Growth, Propagation and Condition of Feuds and Tenures by Knight–Service in England’, English Works (1723), II.1 ff.

[45 ]Pierre Bouquet, Le Droit public de France, éclairci par les monumens de l’antiquité (Paris, 1756), 239 ff., gives the general argument without reference to Britain.

[o]‘settle them’ deleted

[p]Reading doubtful

[46 ]Le Droit public, 258 ff., gives as the prerogatives of allodiality: the right of making laws, the right of life and death, the right of coining money, taking cognizance of false measures, the right of safe–conduct, raising of troops, raising of taxes, the rights over roads, game, and forests.

[47 ]Blanks in MS. The three missing powers are detailed at 136 below.

[q]‘Malco’ deleted

[r]‘and we’ interlined above ‘politick’ with omission mark after ‘prince’

[s]‘changed’ deleted

[t]Reading doubtful

[48 ]Hugh Capet (died 996).