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Wednesday. March. 9th 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. 9th 1763.

In yesterdays lecture I explaind to you how a system of liberty came to be established in Britain after the fall of the nobles, not indeed immediately after it but about 100 years after the race of the Tudors had become extinct and the Stewarts came to the throne. There were two great causes which contributed to bring about this change.—The 1st and chief was the situation of the kingdom, which made a standing army be thought unnecessary. The want of this made it impossible for the king to establish laws or levy taxes without the assistance of the Parliament. The kingdom had indeed been ruled by Chas 1st for 16 years by proclamations and edicts; these under Henry the eights time also had very nearly tho not | altogether the authority of an Act of Parliament, and were sufficient to keep the people in awe. Dissobedience to them would have been highly punishable, but this was not then the case. The other cause which had a considerable effect also was that the ancient and ordinary revenues of the crown had been more dissipatedl in Britain than in any other country. The remains of the ancient demesnes lands had been intirely alienated by Elizabeth, who, seeing she was to have no issue, becoming careless in what condition her successor should receive the government, engratiated herself with <the> people by decreasing the expences of the govt., particularly in the end of her reign in the war against Spain, by the money procured by the sale of these lands, as is particularly explaind by Ld Bolingbroke.68 In this manner a greater defalcation of the revenues of the crown had been tried here than any where else. As the king also had no standing armies he could of himself raise no taxes or subsidies, and was altogether dependent on Parliament. The House of Commons had also the ascendency over the House of Lords asm at this time. The number of voices | in that House was much greater; they consist of about 500 members, whereas the Lords are not much above 200; and of these 500 there are perhaps 200 possessed of as great property or greater than the Lords. But besides this personall influence, they had a still greater one as being the representatives of the whole body <of> the people both in the burrows and the country, and in this light as it were the weight of the whole people. The nation in generall also trusts them much more than the nobles. The nobles, it may be feared, will have respect to the aggrandizing of their families and fortunes as it is from them that they derive their influence. The Commons on the other hand must have a respect to the voice of the people and the good will of their constituents, which they must endeavour to maintain as their authority depends on it; they therefore have the compounded weightn of their own weight and that of the people also.o They have also a considerable influence from the old custom that all money bills should take their rise from them; and money bills now | make the greatest and most important part of any. The members of the House of Commons are also much more accustomed to debate and deliberation than the Lords, so that on the whole the far greater part of the bills take their origin from them, and generally pass of course before the Lords. The Lords would now have hardly any business were it not for the Scots appeals, at which there are ordinarily not above 4 or 5 present,p unless it were on deliberations on the concluding of a peace or other such important transaction. In all other cases the Commons have by far the greatest and most considerable share. The Commons also endeavoured to establish a custom which would have put all bills on the same footing with money bills, and given the Lords no more power than that which the king has, viz that of assenting to or refusing a bill without altering it. This they attempted by what they called a tack, that is, a clause join’d to a money bill in which some thing of a different nature was included, and saying that this was a money bill theyq demanded that the Lords should have only the power of refusing etc. it as a money bill. But this they never would agree to, as every law would have | been put into the form of a money bill.

Liberty thus established has been since confirmed by many Acts of Parliament and clauses of Acts. The system of government now supposes a system of liberty as a foundation. Every one would be shocked at any attempt to alter this system, and such a change would be attended with the greatest difficulties. The chief danger is from the Civill List and the standing army (as above).69 One security for liberty is that all judges hold their office[r]s for life and are intirely independent of the king. Every one therefore is tried by a free and independent judge, who are als<o> accountabler for their conduct. Nothing therefore will influ<en>ce them to act unfairly to the subject, and endang<er> the loss of a profitable office and their reputation also; nothing the king could bestow would be an equivalent. The judge and jury have no dependance on the crown.—The sheriffs indeed in many counties of England as well as in Scotland are appointed by the king, but this office is also for life, and is not attended with great dignity and no profit,s so that many pay a fine of 500£ to be excused from it. | The disposall of it can give no influence to the king, nor can he greatly over rule them, ort act contrary to law and justice. One who levied any tax which was not authorised by Parliament may be tried of robbery, and that too in the way of appeal, which the king can not pardon, tho he can those on indictment or information. So that no one will readily be influenced by the king, his protection or orders not being able to screen one from justice. Another article which secures the liberty of the subjects is the power which the Commons have of impeaching the kings ministers of mal–administration, and that tho it had not visibly encroached on liberty. This power still remains, tho it has not been exercised since the time of William 3d. This priviledge as well as many others favourable to liberty we owe to that tyrannical prince, Henry 8th. The ordinary method which they took to get free of any of his ministers of whom he had become jealous was to get him impeached by his servile House of Commons, and from this time they have still retaind it. The king can not pardon an | appeal, that is, a prosecution at the instance of a private person; he has that power only with regard to indictments, that is, when the grand jury finds the bill to be true, or what we call the relevancie, and afterwards delegates the particular case to the committee or lesser jury. These he can pardon as well as ordinary informations, but not appeals; nor for the same reason can he pardon impeachments, as they are at the interest of another body.—The fear of disgrace and loss of reputation, as well as this of capitall punishment, from which they can not appeal or be pardoned, serves to intimidate the ministers from attempting any <?> against the commonwealth, and secures the liberty of the subjects and establishes those great rights which they have now obtained. The Habeas Corpus Act70 is also a great security against oppression, as by it any one can procure triall at Westminster within 40 days who can afford to transport himself thither. Before this Act the Privy Councill could put any one they pleased into prison and detain him at pleasure without bringing himu to triall. Now no one can be imprisoned anywhere but in the county gaol or the nearest to it where the crime is said to have been committed; he cant be sent out of Britain to Jersey, | Guernsey, or the plantations, that is, alway<s> within the extent of the Hab. Corp. Act.—This sufficiently secures the liberty of the people; for tho many could not afford the expense, yet it is not such who will be in greatest danger from the king. The rich and powerfull are most obnoxious to his displeasure; tis rich and not poor folk who are sent to the Bastile in France. No judge can oppose the Habeas Corpus Act; infamy and a high penalty are the punishment which attend it. No influence of the king could ever induce them to make any such attem<p>t. And so strict is this Act that in the time of rebellions or other exigencies of the state, when it is necessary to imprisonv without such speedy triall, it is commonly taken off for 6 months. But it will never be allowed to be reppealed, as that would destroy in a great measure the liberty of the subject.

The frequency of the elections is also a great security for the liberty of the people, as the representative must be carefull to serve his country, at least his constituents, otherwise he will be in danger of | losing his place at the next elections. In an absolute government favours are bestowed and all publick offices conferred on the favourites of the king. But in a country like this publick favours are generally bestowed on the active, bustling, important men; such are most bold to demand any favour for their constituents, and are in this manner naturally more distinguished than the others; and it is not a bad way that power should be conferred on those who have naturally the greatest influence. The more frequent these elections are, the more dependent are the representatives. It was for this reason that the Parliaments were changed after the war <of> 1715 from trienniall to septenniall ones,71 as it makes them less dependent on their constituents and diminishes the democraticall part of the government. The voice of the people for the same reason is of less importance towards the beginning of a Parliament than towards the end, as they are then nearer the time of their next election. The minister therefore generally contrives to get any important business, as the making of a peace | and such like, done in the beginning of Parliament, as if it were near the end an opposite party might raise a faction which would be very troublesome.—The method of elections is also an other security peculiar to England. The elections of members for the burrows were formerly on the same footing in England as they are in Scotland; they were in the hands of the aldermen and common councill men. But before Ch. 18w times there were some burrows where the elections were in the whole body of the people, and in the Parliament of 1642, who were very democraticall, it was orderd that all elections should be in the hands either of the freemen of the burrow or of every inhabitant of it, every one as they say who has a boiling pot. This manner is altogether democraticall. It is impossible <?but> that the person chosen should be one whose character is agreable, at least in the town where he is chosen member. But in Scotland they are altogether oligarchicall, so that one who is most obnoxious and disagreable to the body of the town may be chosen | if he has interest enough with the magistrates, which money will procure; but no bribe will settle a mob who has once taken up a prejudice against one, so that he must have at least a tollerable character in the town. It is the same way with the county elections. No one has a vote here who does not hold of the king, and has a considerable yearly rent above £600.72 But in England every one who possesses land to the value of 40sh, whether it hold of the king, of a subject, or be only a lease for a life or for lives, if he can swear he makes 20 sh of yearly profit from it.73 The numbers are here much greater and 3 or 4000 will be much more formidable to him than 30 or 40.74 Our government is therefore much more aristocraticall than that of England, and we see that when we had a seperate Parliament it really was so. The House of Commons also has the sole judgement in all controverted elections, and is onx them very nice and delicate, as their interest leads them to preserve them as free as can be had.y These laws and established customs render it very difficult | and allmost impossible to introduce absolute power of the king without meeting with the strongest opposition imaginable. This of the length of the Parliaments, and the great extent of the Civill List which may bribe both the electors and the elected, is the only things which appear to be dangerous to liberty, and this too will not probably go far; it may indeed influence them so far as to obtain the passing of bad laws <?but> would not be sufficient to obtain any law to be passed which should evidently take away the liberty of the people. They must evidently perceive that the money they get to pass such a law will be the last they will ever receive, if they put it in the kings power to raisez a summ of money. They will therefore never agree to pass a law which should supersede the necessity of calling a Parliament.

Another thing which tends to secure liberty is the form of the courts of justice. The kingdoma <?>. Formerly the kings courts were in the same form as the justiciary courts in Scotland before the year 1745. The judge in them or president | was the bailey of the lords courts, who was not only in this manner justiciary but also factor or stuart to the baron. He both collected the rents of the estate and judged of all matters within it. The justiciary under the king were in like manner also the collectors of [of] the revenue due to the king. This connection was very naturall. The sheriff or county officer was the person to whom all fines, amercements, and compositions for crimes were payable, and these made a very considerable part of the revenue along with the feudall emoluments. No property could be given from one to another either by volunt. transf. or succession without a fine to the king and such like, and as the sheriff was the collector of all those fines, it was naturallb to constitute him judge in them also. {The sheriffs used to keep accounts of this which they called sentence money which was given up to the king.} The Chiefc Justiciary was the same at this time with the chief officer of the exchequer or receiver of the revenues. His power soon came by this means to be near equall to that of the kings himself from this two fold office, and he became an | object of jealousy to the king. The Parliament and the exchequer seem at this time to have had the same members, only when they considered any matters relating to the revenue they met in the exchequer chamber, the table of which was covered with a chequered cloth, from which it got the nam[am]e of scaccarium, exchequer.75 The chief officer or Justiciary in this manner came not only to be the judge of causes but also the collector of the revenues, as he who gathered in the rents was appointed also to determine causes in his court. This bailey was generally some writer or such like who had but a very imperfect notion of law.d The Magnus Justiciarius in this manner became very powerfull, and so much on a level with the king that Edward the 1st, who could not brook a rivall, took away his power. This court had a littlee time before three severall powers, that of judgement in criminall causes, of common pleas, and | fiscall causes. But the Court of Common Pleas was seperated by John, as it was found inconvenien<t> to have the court which tried those causes removed about with the Kings Court, as it often introduced discontinuances. Edward however took away this office entirely and divided this court into four, that of the Common Pleas; 2d, that of Kings Bench; and 3dly, that of the Exchequer; and the Court of Chancery, which was at first only an office of briefs.76

[l]Reading doubtful

[68 ]Remarks on the History of England, Letters 13 and 14 (Works (1841), 369 ff.) for general praise of Elizabeth’s economy; for the sale of demesne lands, Hume, History, IV.729.

[m]Reading doubtful

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

[o]‘are generally the body from which all laws begin’ deleted

[p]Illegible word deleted

[q]Illegible word deleted

[69 ]iv.179 above.

[r]Replaces ‘independent’

[s]Sic

[t]Reading doubtful

[70 ]31 Charles II, c. 2 (1679). The period is 20 days. Cf. ii.129 above.

[u]‘self’ deleted

[v]Reading of last three words doubtful

[71 ]1 George I, st. 2, c. 38 (1716).

[w]Reading doubtful

[72 ]400 pounds Scots, by Act, 1681, c. 21 (A.P.S. VIII.353, c. 87).

[73 ]8 Henry VI, c. 7 (1429) gave the county franchise to those possessing a freehold worth 40 shillings a year.

[74 ]Dalrymple, 274: ‘While there are above 30,000 voters in some particular counties in England, there are not above 3,000 voters in the whole kingdom of Scotland, freeholders and common councilmen included.’

[x]Reading doubtful

[y]Reading of last two words doubtful

[z]Reading doubtful

[a]Several illegible words deleted

[b]Replaces ‘necessary’

[c]Reading doubtful

[75 ]T. Madox, History and Antiquities of the Exchequer (1711), 109. Scaccarium is medieval Latin for a chess–board.

[d]The words ‘This is not exact the following lecture explains it’ are written vertically in the margin opposite the last two sentences

[e]‘that’ interlined and deleted

[76 ]Briefs: the Scots term for the English writs. Cf. G. Gilbert, Historical View of the Court of Exchequer (1738), 7; Hume, History, I.411.