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| Monday. March. 7th. 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.


| Monday. March. 7th. 1763—

In the last lecture I explaind to you the nature of that government which came in after the introduction of the feudall tenures. The whole business of the natiomt came immediately and directly before either the Kings Court or that of some of his barons. The democraticall part of the constitution was now altogether abolished; all the courtsu of the people were now laid aside; and the inferior persons who formerly had a share in the sovereign court of the nation were now no longer admitted into the great court of the king. The only persons whov were admitted as members of it were those who held immediately of him.—As in the Grecian states the governmentw was at first a republican monarchy, that is, an aristocracy with a king at its head, so likewise was the government of Europe a democracy headed by a king, which however was greatly disturbed by the nobles even in the allodial government, and intirely subverted as soon as the feudall government was introduced thro all Europe excepting England. The only reason why they did not in Europe as well as in Greece intirely destroy | the kingly power was the difference of the territory the nations possessed, which was not as in Greece a small territory of the size of a large county, with one large city in the midst of it in which all the great men were collected, but a large country thro which they were scattered, so that they had no such opportunity to meet and unite their joint strength against him. All they could do was to overthrow the democraticall part of the constitution and establish an aristocraticall monarchy. This was done in every country excepting England, where the democraticall courts subsisted long after and usually did business; and at this day the county court, tho it has not been used of a long time, is nevertheless still permitted by law. They ordinarily did business in all smaller causes, the greater, of felony and treason, being taken from them by the Magna Charta {the great foundation of the aristocraticall government}, till the institution of Justices of Peace,59 who dispatch those affairs with much greater readiness and facility. The great court of the king was composed of those who held immediately of him.—The kingdom was considered as one great fief, | the business of which was to be managed by those who held of that fief; every thing concerning the property or lives of any of these was to be considered in a court of the lords, his paramonts or peers; and in the same manner the business of the barons court was to be managed by those who possessed his fief.

I showed you also how the representatives which now make up the House of Commons came first to be called. The king was very jealous of the power of hisx nobles, who frequently raised great disturbances and turned out many of the kings, John, Henry Blank in MS.60 <?and> took the power for some time out of the hands of the others.y The king therefore took every method to lessen their power, and for this purpose as I mentioned he strengthened the hands of their villains as well as the vassals, and took every method to render them more independent, and also by supporting and strength<en>ing the burrows, which they did by allowing them to be formed into a corporation, to defend themselves by a wall and guard, | to have the trial of certain small causes within their own limits in which they had a considerable jurisdictory power. In this manner they came to be very considerable, having perhaps two or 300 men, which was then a formidable body as they were all trained to arms.—The reason that occasioned the kings calling his lords together was that their consent to all steps respecting the government was absolutely necessary, otherwise their power would have prevented the execution of it. The same reason held with regard to the burrows, as he could not raise those subsidies which he wanted to bear the expense of government without their consent. At first they were sollicited by emissaries sent by the king, who stipulated certain subsidies from them. This however was soon found to be very troublesome. They were therefore desired to send representatives to court as well as the barons, who might give their advice and consent to all the necessary regulations relating to the subsidies and other expences of the | government.—The king as well as the nobles changed the knights service which was due by those who possessed his demain lands into what they called an escuage or scutage. When any one did not incline to go to war in person, he was bound to pay a certain some of money such as would be sufficient to get one to supply his place in the army, or that of his dependents. This was generally preferred to knights service; for those men of power and influence were generally very troublesome and unruly. Whereas when they paid money, this would enable them to procure other soldiers as good as they, who also, being mercenary, would be more under discipline and command. This escuage furnished a considerable pt. of the kings revenue. The rest of it consisted entirely of 1st, the feudall emoluments already enumerated; 2dly., compositions, fines, and amercements for crimes; 3dly, all bona nullius, as wafes, strays, and treasure trouffe; 4thly, swans, royall fishes, and the great beasts of the chase.— | We are to observe that all these necessarily diminished at the same time that the expense and demands of the government encreased, so that supplie[ie]s, subsidies, auxilia, became absolutely necessary. The people we see were always most free from their severall burthens when the profits arising from them to the state were most necessary for its support. We see accordingly that those which are most favourable to liberty are those of martiall, conquering, military kings. Edward the 1st and Henry the 4th, the two most warlike of the English kings, granted greater immunities to the people than any others. There are severall reasons for this, as 1st, they of all others depended most on the goodwill and favour of their people; they therefore court it greatly by all sorts of concessions which may induce them to join in their enterprizes. Peaceable kings, who have no such occasion for great services or expensive expendition<s>, [and] therefore less courted their love and favour. 2dly, it soon became a rule with the people that theyz should grant no subsidies till their requests were first granted. No subsidies therefore | could be obtain’d without the grant of some priviledge or immunity granted to certain members or bodies in the nation. His necessity obliged him to grant these; and martiall princes are most liable to come into this condition. These two <?reasons> made martiall princes always grant great priviledges to their subjects. Philip Augustus of France gave great privileges to the people. Representatives in Parliament were first granted by Edward 1st, and the priviledges were greatly increased under Edwd. 3d. The House of York also, who were allways doubtful of their tittle to the crown, seem to have made it a rule never to demand any subsidie or other grant from the people without having previously granted some immunities as a bribe.

The representatives of the burrows, as I said, always sat in a separate court from the others, being consulted chiefly with regard to those matters which concernd the revenue. The representatives of the knights of the shires, as their principalls had done before, sat in the same court with the nobles. But when they multiplied greatly they became in process of time so | insignificant that it could no longer be thought proper that they should sit in the same court with the nobles; they were separated from them and joined to the burrow representatives. It however from this time became a rule that no aid or subsidy could be granted which did not proceed at first from the House of Commons; they had generally directions from their principals not to grant any subsidies till the peculiar grievances of that county, etc. were redressed; besides it is to be remembered that the Commons paid the far greater share of all subsidies; if the nobles paid 15, they 10;61 if 8, 6; and so on. The nobility had now also come to be very numerous, and there were many whose fortunes were altogether insignificant. Their number and their fortunes would not allow them to assemble all at once. The king therefore called them some times to Parliament by letter, and sometimes did not, as he thought proper. These became distinguished from the rest, being baronsa by writ. No one would now incline to go unless summoned by the king, which letters or patent came in time | to be the mark of nobility. Originally one was noble by his tenure only; who ever possessed land of the king in capite was considered as such. But those only afterwards were considered such who were selected and pitched on by the king and called by these patents to court. This came by degrees to be considered as the mark of nobility. The other by tenure is now entirely laid aside. The lordship one possessed was whatb formerly conferred the dignity of a lord upon one who possessed it. Whereas now one may be created a peer who is not possessed of the place he takes his title from, and even tho he is not possessed of any property in land at all.62

The power of the nobles however declind in the feudall governments from the same causes as everywhere else, viz, from the introduction of arts, commerce, and luxury.—Their power consisted in the number of their retainers and tenents. The number of their retainers and even of their dependents was owing to their plain and hospitable way of living. Richard Nevil,63 who was sirnamed King Blank in MS.c from the great share he had in the commotion at that time in favours of and Blank in MS.d | an Earl of Warwick is said to have maintaind every day at his table in his different manors about 30000 men. He seems indeed to have been by far the greatest baron who has appeared in England since the time of Wm. the Conqueror.—But when elegance in dress, building, and gardening, cookery, etc. was introduced, it was no difficult matter to spend a fortune even as great as that of Warwicks, and by this means he would lose all his retainers except a few menial servants who could give him no influence. His influence over his tenents also came to be greatly diminished. The tenents were originally (as they were in the Highlands till very lately<)> all tenents at will, who had very advantageous leases. The proprietor gave out some piece of land to some friend or relation for 100£, which produced perhaps to him 200. He again subset this to 100 for 40shs each, when they had to the value of 4 or 5 pounds; and in generall the rent was only about half of the profit. These intirely subsisted and depended on him as well as his retainers; they called him their master, which is the term still in use in this country, and would readily attend him to battle on whom | their all depended. When luxury came in, this gave him an opportunity of spending a great deal and he therefore was at pains to extort and squeze high rents from them. This ruind his power over them. They would then tell him that they could not pay such a rent on a precarious chance of possession, but would consent to it if he would give them long possessions of them; which being convenient for both is readily agreed to; and they became still more independent when in the time of Henry 2d these leases came to sustain action at law contra quemcumque possessorem. Thus they lost a man for 10 or 5 sh., which they spent in follies and luxury. The power of the lords in this manner went out, and as this generally happened before the power of the commons had come to any great pitch, an absolute government generally followed. This was the case in England during the Tudor family. The nobles were then destroyed. They had been massacred by Edward 4th in his battles with Henry the 6th.; afterwards in various insurrections and disputes for | the crown.—The same thing happen’d in Scotland, with this difference, that the declension of one family here served only to raise an other; as the fall of the Cummin,s64 made way for the Douglass,s, as they had not those arts which they had in England and which gave an [an] opportunity of spending his whole estate on himself. The Tudors accordingly were absolute. They imprisoned any one at will; which liberty destroys the freedom of the people altogether, as imprisonment will compell one to agree to any thing. The Parliaments had then no power, but were alltogether ruled by them, King Henry 8th and Queen Elizabeth. Freedom of speech was then a crime. A member happend to oppose a bill which Henry wanted to be passed. Henry called him asside, and putting his hand on his head told him, Man, I’m informed you opposed the bill; if you do so I will take off your head. This promise, as he generally stood by all of this sort, made the man alter his design.65 And in the same manner the fall of the nobles, having left no rivall to the | kings power, established an absolute government.—In order that the innequality of property should have the effect above mentiond, there must be a graduall declension and subordinate degrees of wealth. Thirty thousand pounds may at present be spent on domestick luxury, as their are intermediate steps of 25, 20, 15, 10000, and 1000, 100£ betwixt this and the lowest class, thro all which the progress of arts, manufactures, and industry can easily pass. But when property goes on in the progression by great leaps or jumps, the arts, commerce, and luxury can not creep after them. When this inequality goes on slowly, the arts follow, so as that one who spent 50 can spend a hundred, and goes still farther and farther; the luxury then easily traces the same course as the property. The case is otherwise withe great leaps, as nothing fills up the intervalls, so that luxury cannot keep pace. This is the case with sovereigns in most countries, as in Britain; the Civill Lis[is]t consists of aboutf £300,000, 30g times as great as the free mony of any estate, deducing taxes and public burthens, so that the luxury arts evenh employed on a illegible wordi can not | affect him so much that he will not be able to form many dependents and pensioners, as well as different offices as those of excise, custom, etc. Besides which he has the disposal of about three millions for the ordinary demands of the government. He cannot possibly spend all this, but divides it amongst different officers who become his dependents and followers. For these reasons the sovereigns have become absolute, as during the Tudors in England, after Henry 4ths in France, and also in Spain.—In other countries the arts and luxury have produced the very opposite effect, in establishing the aristocracy more firmly. After the time of Charlemagne, before the feudall government which first introduced order and regularity into Europe was introduced, the emperors of Germany had become elective; their authority therefore was much less than of a hereditary one. He is then an upstart [from]j from others who had as good a title; his elevation is galling and uneasy to them who had been before his equalls or nearly so. They therefore are very confident against him; nor are they affeard of thek | resentment of his children, as they will not have any power mor<e> than others. The nobility therefore opposed the emperor and at length overthrew his power. Germany is a large country, vastly larger than Britain and considerably larger than France, tho not so well peopled.—Large estates must therefore fall into the hands of single persons. In the great scramble of human society every <?one> scrambles to get as much as he can and keep what he has got. As in a mob, where 100l pounds are throw<n> about in shillings, he will be a lucky man who should get 20sh, but if £1000 were thrown about, the same person would be probably able to collect by his strength 100, as he had more opportunities of taking from those about him. So in Germany, as the country is larger and <?there is> more to be scrambled for, one would get much more than in Scotland or England. The greatest estates in this country are altogether frivolous when compared to those of the Count Palatine, Marquis of Brandeburgh nowm King of Prussia. These and many others are now | altogether absolute. The introduction of luxury and arts affected the inferior people, but could not affect them, as their estates are worth some hundred thousand pound per annum. They have therefore still a great number of dependents who follow them to battle, and their authority is often in their own dominions altogether absolute.

[t]Sic

[u]Reading doubtful

[v]‘held of him’ deleted

[w]‘which’ deleted

[59 ]34 Edward III, c. 1 (1361).

[x]‘vassals’ deleted

[60 ]Blank in MS. Henry III. Cf. Kames, ‘Constitution of Parliament’, Essays, 28 ff.

[y]Reading doubtful

[z]‘should grant no’ deleted

[61 ]Presumably a mistake for ‘if the subsidy was 15, they paid 10’.

[a]Reading doubtful

[b]Reading doubtful

[62 ]Kames, ‘Honour: Dignity’, Essays, 86 ff.

[63 ]Richard Neville, known as the Kingmaker in the Wars of the Roses, became Earl of Warwick in 1449; Hume, History, II.361–2. Cf. i.120 above.

[c]Blank in MS.

[d]Blanks in MS.

[64 ]i.e. the Comyns.

[65 ]Hume, History, III.128 note.

[e]Reading doubtful

[f]Illegible figures deleted

[g]Reading doubtful

[h]Reading doubtful

[i]Illegible word

[j]Reading doubtful

[k]Reading of last six words doubtful

[l]Reading doubtful

[m]Reading doubtful