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Friday. March. 4th. 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. March. 4th. 1763.—

In my last lecture I endeavoured to explain to you the manner in which the allodiall form of government came to be changed into the feudall form. This change happend in the whole of Europe about the 9, 10, and 11st centuries. The lands were at first only munera; these were afterwards held as beneficia, and at last as feuda. The Germans, when carried out of their country by Conrad, in expeditions into Italy, complaind that there families would be ruin’d if they should not return, and Conrad,49 to induce them to serve him with the greater willingness, promised them that their lands should be possessed by their sons and afterwards by their grandsons,u and failing them by their brothers and other relations; so that they at last became hereditary feus. This was in the end of the 11th or beginning of the twelfth century. For as I shall | shew by and by, the progress of law and government was slower in Germany than in most other parts of Europe. If, before this time, any allodiall lord had wanted the assistance of the king or one who was more powerfull than himself, he would resign his lands to him and consent to hold them as munera or beneficia. But when lands came to hold by perpetuall tenure, they would rather take them in that manner. Theyv when in any danger or in want of protection held them feudally, which transaction was done in this manner: they resigned their lands intirely into the hands of the king, who afterwards gave them [them] back with a charter in which they were bound to military service with the three talliages or Blanks in MS.w as mentioned in the last lect.,50 to ransom the lord, etc. And in this manner all the allod. lands became feudall, and the different burthens of it were soon introduced. Sometimes for the present of a small piece of land they received from the king, they consented to hold both it and their other lands feudally. Blank in MS.51 of Scotland, by giving out his demesne lands in feu, obtaind that all the other lands | of the great lords should be held feudally of him also; and in this the same form was used. They surrendered their lands to him and receivd them back with a charter binding them to the military service and other burthens. And in these feudall casualties the whole difference betwixt the feudall and the allodiall forms consisted; in the time of a minority, the rents of the estate did not as formerly go to the relations but to the king, and so in other cases. And on the other hand the feudall lords were more immediately under the protection of the king than when they were allodiall ones. He was bound to protect them, and this it was his interest to perform, as they were his vassals from whom he might expect to reap considerable benefit. The feudall jurisdictions still containd all that the allodiall ones did.52 They had 1st, the power of deciding all matters respecting property within their baronry, earldome, or other jurisdiction; 2dly, of determining all disputes concerning freehold land or Blank in MS.x and of succession; 3dly, the power of life and death; 4thly, that of making by laws for their own domain; and lastly, | that of coining money; and allmost all the regalia which are considered as marks of sovereignty; being only subject in some measure to a lord still greater. The aristocraticall part of the feudall constitution was a good deal weakend by this, as they became greatly more dependent on the king, and were obliged from this time to manage and coax him to obtain those favours they might want of him; and we see accordingly that the kings in all countries favoured the feudall tenures.

In my last <lecture> I explained the form of government which took place when the lands were allodiall. I shall now consider those which came in when they held in the feudall manner.—In the first place we may observe that the feudall govenment took away every thing which was popular in the allodial form; of which sort [there were] there arey many traces. The decennries were alltogether popular, and so were the hundreds and the county courts. Thez Kings Court was also in a great measure popular, | for tho the lords and earls were there in council, yet the wites chosen from the people sat there [also] in judgement also. But as I already observed the power of the allodial great lords in a great measure <?prevented> the free operation of this manner of government; so that at last the presidents or aldermen of the county court were not chosen by it or appointed by the king as they were at first, but the great lord or baron in the county became hereditary earl or president in it.—The feudall government however put an entire conclusion to all these courts; and all the lands fell under the immediate jurisdiction of the lords or of the king, who administred judgement in them either by himse<l>f or by judges sent for that purpose. In the council of the king none were allowed to sit but those great lords who held immediately of him. These were all called to a colloquium or conference with him; the word parliamentum did not come to be used for some time after. To these colloquia none were called but those who held in capite53 of the king. These were considered as companions or | comites of the king, and his attendants, and were peers or pares, equalls of each other. Nothing of importance with regard to the state was done by the king without their advice and consent, and any thing done without it could be of no effect as their power was such that they could easily have prevented the execution of it. Without their consent and advicea no laws or rules respecting the country could be made. These who composed the Kings Court were in this manner pares curiae regis, convivii, comites, socii regis. In the same manner those who made up the barons court were pares curiae baronis, convivii, socii, comites baronis. With these he consulted concerning all matters relating to the baronry.—They had all become his vassals voluntarily. They considered the expression that was in their charters of their being free and gratuitous deeds of the king or lord as a form, and it was in fact no more as they had promised him service in return for protection. They were all armed and <?had> a court of their own, composed of their vavassores, so that without their consent nothing | could be done. Nor could they again without that of their vavassores. No regulations with respect to the country, no determinations with respect to peace or war, could be made or could possibly have been effectuall without the advice and consent of these lords. This made the government become altogether aristocraticall; the king as chief at the head of it, the lords, and their vassalls.—All those who held by military service of the king, whether it was immediately or thro a descent by intervening mean or middle lords, of which there were sometimes 5 or 6 betwixt the lowest vassall and the sovereign, all these as long as they held by military service were considered as holding by a noble tenure and had certain priviledges common to them all. 1st, they could not be turned out of the possession of their lands on any pretext by their superior [with] without the consent of all their peers, and far less could they be put to death. Each of these would find it to be his interest that the others should get entire justice, as the same might soon have been his own case. Nothing could be done to a lord without a fair trial and sentence pronounced against him before the pares | curiae regis. Nor could any thing be done or any proceeding undertook against the barons vassalls; they could not be turned out of their estates or deprived of their lives without a triall in curia baronis, before his peers, pares curiae baronis. Their maxim was that nothing could be done to a man without a trial before his peers. This still remains in some measure.

Besides these, which were honourable and noble tenures, there were two other classes of men, which were reckoned ignoble and contemptible.54 —The 1st of these is the villains or slaves who ploughed and tilld the ground. These were reckoned incapable of property; they were bought and sold allong with the land estate. They were however in a much better condition than the slaves in ancient Greece or Rome. For if the master killed his villain he was liable to a fine;b or if he beat him so as that he died within a day he was also liable to a fine; these, tho small priviledges, were very considerable and shewd great superiority of condition if compared with that of the old slaves. They had besides severall other priviledges, as | that they could be sold only along with the estate, so that they had the benefit of a marriage in which they were securd by thec clergy, who took care that they should not be separated from their wives. It was also a rule that if the lord used him unjustly, or did not plead his cause and appear for him in court when he was accused, and it was found that he had been innocent in this case, he was free. They were slaves in many things but had priviledges superior to those of other constitutions, as monarchicall governments are allways more gentle than republican to this order.

The 2d ignoble class was that of the burghers. These were at first slaves or villains who belonged to a certain lord or master to whom they paid a summ of money for the liberty of trading. They lived in small towns or villages for the convenience of trading, but in but very small numbers. York at the time of Wm Conqueror containd only about 300 houses, which might be about 2000 persons. Trades men naturally choose to live in towns, as they have there a market for their goods and an opportunity of bying those | which they stand in need of; whereas if they stay in the country, there must be a great loss of time in providing their tools,d etc. and going to sell their commodities. But at this time there was little encouragement for manufactures. The lawless and disorderly state of the country rendered communication dangerous, and besides there was little demand for any of the produce of the mechanick. There were therefore but few of them in the country and very small towns. The tradesman or merchant in a country in that state would be altogether helpless. Theye were generally slaves of some lord, or if they were poor freemen they became dependents either on the king or on some great lord, according as their lands lay most contiguous and were best able to afford them protection and liberty. By this means they were very little better than villains or slaves of these great men.—The king however, being jealous of the power of the nobles, found it to be his interest to weaken their power and therefore <re>leasedf all their villains, and those more especially who were least dependant and could be most easily | freed from their authority. These burghers were such, and were therefore greatly encouraged by them, and we find accordingly that all the burghers and freeed sort of slaves who lived in the villages or towns, which any villain became who left his master and lived in one of these towns for a year without being claimd, had the liberty of marrying whom they pleased, of free trade, etc., without any toll.55 They were afterwards formed into corporations holding in capite of the king, having a jurisdiction and territory for which they paid a certain rent. At first this was taken up from every individual, but afterwards the community farmed it, which made the burthen much easier than when it was exacted without distinction by the kings officers. In this manner these small towns became free and able to protect themselves, as they had a stoutg stone wall about the town and kept a constant watch and ward, which was one part of the duty of a burgher, and were always ready for arms and battle to defend themselves against the attempts of the | lords, who frequently disturbed them and often plundered their towns.—During the time in which the burrghs were emancipating themselves and coming into a state considerably better than that of the villainage, another great change was going on. But stillh after this change the burghers were looked on as a more contemptible sort of men, insomuch that if the king or any nobleman married his ward to the son or daughter of a burgher even this was reckoned a disparagement, and they were declared to be free from their wardship.

The feudall aristocracy at the same time came to decline. Feudall property was originally, as I said, not much inferior to allodiall and was confined to a few great men; but like all others, property came to pass thro different hands. These (great lords or all who held of the king) had at first a tittle to sit in Parliament with the king, and nothing was done in it without their consent and advice as they only were capable of having influence | in the kingdom.—At the time of Wm the Conquerror, the whole land of England was, as we learn fromiBlank in MS.j , possessed by about 700 [h] who held immediately of the king;56 of these probably only 3 or 400 could attend at the court, so that the assembly would not be so numerous as our present House of Commons, which consists of about 500.—But in time the lands came to be divided; parts were given off to second sons or other relations, and the number of knights who held of the king by military service became too numerous. In this case it was impossible for them all to attend at the three different times of Michaelmass, Christian–mass,57 and Easter; and the very expence of these journeys would have ruined some of them. Many persons now came to hold of the king by nightsk service. For this reason Henry 3d and Edward the 1st of England, and Ja’s 1st of Scotland desired these lesser lords to choose a representative out of each | county to sit in the Great Council and give his advice and consent to the determinations of the great body of the nobles.58 These lesser lords werel possessed <?of> about a half perhaps of the lands in the kingdom; their power therefore, tho less than that of the greater lords, was very considerable, so that their consent to all laws, taxes, or generall regulations was absolutely necessary. They were all likewise baronis comites and pares curiae regis, so that they were intitled to sit in the same court and council with the others.—The burghers being also free as to marry, to trade, they having also a walled town and paying only a small rent for the liberty of trade, came to be considered as free. This rent was generallym farm’d by a slump rent which continued the same for ever from the lord, and this rent continued still the same after the cities were vastly increased. It was then also not levied by poll, which is always reckoned an uneasy way, but by tolls on fairs and markets, which tho attended with some dissadvantages is | nevertheless much preferable to the others. The burghers were also allowed to send deputies to the court, from the similitude of theirn state to that of the others, as the idea then was that all those who held in capite of the king had a tittle to send represent<at>ives to Parliament. Tho the burghers themselves singly were not pares curiae regis, comites, etc. yet the whole corporation was. These did not indeed sit in the same court, but there consent and advice was necessary in all affairs relating to the public dutieso and particularly the levying of taxes. This had in all countries been very grievous to them, and generally was heaviest on those who could least bearp <?it>, as those who were stronger heaved off the load from their shoulders till at last it fell on them who <?tho> they could not bear it easily were obliged to submit, and this is the caseq in all such circum. They therefore were greatly concernedr in all these matters. The same progress happened in the rest of Europe, as in Spain withs Philip the Handsom.

[49 ]Conrad II’s edictum de beneficiis in 1037. Cf. i.122 above.

[u]Replaces ‘grandfathers’

[v]‘then’ deleted

[w]Blank in MS.

[50 ]131 above.

[51 ]Blank in MS. Malcolm Canmore: Kames, Essays, 11 ff.

[52 ]Bouquet, op. cit., 296 ff.

[x]Blank in MS.

[y]Reading doubtful

[z]‘county’ deleted

[53 ]i.e. tenants in chief holding their land directly from the king.

[a]The numbers ‘1’ and ‘2’ are written above ‘consent’ and ‘advice’ respectively. Presumably the numbers are the wrong way round, and it was intended that the order of the two words should be reversed.

[54 ]Hume, History, I.404.

[b]‘in other cases indeed’ deleted

[c]‘king’ deleted

[d]Reading doubtful

[e]‘had therefore’ deleted

[f]Reading doubtful

[55 ]Glanvill, Tractatus de Legibus et Consuetudinibus Regni Angliae, V.5.

[g]Reading doubtful

[h]Reading doubtful

[i]‘from’ deleted

[j]Blank in MS.

[56 ]Dalrymple, 262; Hume, History, I.407.

[57 ]Sic. No doubt ‘Christmas’ was intended. Cf. Hume, History, I.410.

[k]Sic

[58 ]Hume, History, II.88.

[l]Reading doubtful

[m]Illegible word deleted

[n]‘more’ deleted

[o]Reading doubtful

[p]Reading doubtful

[q]Reading of last two words doubtful

[r]Reading doubtful

[s]Reading doubtful