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Friday. March. 11th. 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.


Friday. March. 11th. 1763 —

In the last lecture I showed you how the liberty of the subjects was secured in England by the great accuracy and precision of the law and decisions given upon it, as well as the causes which brought this about, as well as how it came to pass that the judges in England have less strength in explaining or correcting the law than any where else—the judges at common law I mean, for the Chancellor is certainly as arbitrary a judge as most. But neither is he very dangerous | to the liberty of the subject, as he can not try any causes besides those which have no remedy at common law. Nor can he in any case act directly contrary to any method of proceeding laid down by the courts of common law. And from this court as from all others appeals may be carried before the House of Lords.

The first cause of the great strictness of the law is the ordinary method of proceeding in the courts, whichk must be commenced by taking out a writ in Chancery, according to which they must form the suit and pronounce sentence without any deviation from the exact words of the brief; or if the action be founded on any particular statute, the words of the statute must be adhered to exactly. Nor can they alter or falsify any thing in the proceeding or the sentence different from the brief, as the records whichl are kept very exactly mus<t> bear itm openly. Another thing which curbs the power of the judge is that all causes must be try’d with regard to the fact by a jury. The matter of fact is left intirely to their determination.—Jurys are an old institution | which formerly were in use over the greater part of the countries in Europe, tho they have now been laid aside in all countries, Britain excepted. Their origin was as follows. In the beginnings of the allodial and feudall governments, trialls were carried on in those irregular courts of the barons and suchlike, of which I haven given you some account,86 before persons intirely ignorant of the law and such as could give but little attention to the minutiae of a fair trial by witnesses. In this case it became customary to bring 12 compurgatores, that is, the person prosecuted came into court with twelve others; and if he swore he was innocent and these 12 swore also that they believed him to be so, he was acquitted. This remains in some measure on what is called the action, which is a particular statute by which you can referr it to the persons oath, and if he wages his law, that is, swears he does not owe the money, and has 6 persons swearing that they believe he does not, then he is discharged. The temptation here has made this action <to> be never made use of unless where one is certain the debt will | be acknowledged, to prevent unnecessary trouble. The imperfection of this method is said to have given occasion to the practise of the judiciall combat.87 The nobles would be very highly displeased to be oustedo of their rights byp the oaths of mean persons, and at that time perjury was the most common of all crimes, and demanded therefore that they should be allowed to take the old method of referring it to what was called the judicium dei, or single combat. The 1st person who remedied these inconveniencies was Henry 2d, who of all our kings excepting Edwd. 1s. had the greatest legislative capacity. He ordered that instead of the 12 compurgatores, or juratores, who were chosen by the person himself, and might be of his dependents or vassalls whom at that time he could easily influence to swear as he pleased, instead of these the sheriff should appoint 12 juratores who should be made acquainted with the cause, and having considered it should give in their opinion or verdict, to which the judge should adhere, and pronoun<c>e his sentence accordingly from the law. In criminal causes they | examin’d into the fact, whether or not it beq as the libell alledges, and whether all the circumstances be clearly proven by the evidence; and in the same manner in civill, for they are used in both, they consider whether the facts be proved or not to be on one side or t’other.

Nothing can be more carefull and exact than the English law in ascertaining the impartiality of the jurers. They must be taken from the county where the persons live, from the neghbourhood of the land if it be a dispute of property, and so in other cases. The persons may then challenge any of the jurers either peremptorily or pro causar (for that is the distinction). He may challenge peremptorily, that is, capriciously, from any whim or fancy of his without assigning any reason, 35 of the 40 jurers which attend on every court, twelve of which make a jury.88 He may reject the 1st, 2d, and third jury offered by the judge without assigning any cause <?at> all to one; or after this he can challenge a whole jury for some cause, assigning that either in the whole number by the array as they stand in the pannel, | which signifies a piece of the wainscott, a board or pane,s or per capita out of the array any one for which he can assign a sufficient cause. And prettyt slender cause is generally allowed. If he be the brother, particular friend, or tenent, or dependent, or any way connected with either of the parties so that he might be reasonably suspected of partiality <?>; and it will be sufficient cause for challenging the whole pannel if the sheriff be in like manner suspected of having formed a partialityu thro any connection with either of the parties. Per favorem, again, he may challenge the whole array when he has a cause for so doing, but not such as will peremptorily throw them off, which he referrs to the consideration of the judge.—And the same is allowed of every particular jurer. This with many restrictions and the new moddel which is put on it by the law is still the way in England, and seems to be a great security of the liberty of the subject. One is tried here89 by a judge who holds his office for life and is therefore independent and not under the influence of the | king, a man of great integrity and knowledge who has been bred to the law, is often one of the first men in the kingdom, who is also tied down to the strict observance of the law; and the point of fact also determined by a jury of the peers of the person to be tried, who are chosen from your neighbourhood, according to the nature of the suit, all of whom to 13 you have the power of challenging.

The chief defect is that this jury must be unanimous in their opinion, unless they would choose to be greatly harrassed and at last treated with ignominy. And in this our Scots juries, tho they do not appear to be so well contrived in other points, appear to be superior as they are not required to be unanimous. It is very hard that they should thus be obliged to declare themselves of one opinion. The best men and of the greatest integrity may differ, and each think himself altogether certain that the matter is so; this must arise from the variety of human tempers and the different lights in which men see things; and yet in this case they must agree or submit | to great indignities, as being first harrassed till they declare they will not agree, and in that case are turned out of the county. As this is the case, it must be that some of them takes a false oath, and as he must go over to the opinion of the other party. In criminall cases indeed there can be no great doubt as the favourable side is always to be taken, and this is generally looked on as a rule of quasi justice, and tho the party that desires to acquit the criminall be the fewest, yet the others, when they see that there are men of integrity who think him innocent, they will readily agree to think him so. But in civill causes there can be no favourable side; no one can tell which [which] side of the jury should yield. This must often happen, and yet one side must yield unless they incline to be disgrac’d. Nothing therefore can be more dissagreable than the office of a jury man in England. The better sort therefore always avoid it, and the jurys are generally composed there, and in Ireland where the case is the same, of freeholders who possess perhaps about 40sh or 50sh per annum, and are generally of no great reputation or such as can enter into the minute | consideration of the evidence. So that the English, by adhering to the old custom of the unanimity of the 12 compurgatores, in which case it was very properly required, and endeavouring to give liberty to the subject, have overthrown their chief design. But altho this disagreable part had been removd, yet the multiplicity of juries is so great, as nothing can be decided without one, <?as> would render it altogether insufferable to the better sort if they alone were to be admitted. But in Scotland they are on a very different footing. The number which is required to a jury is 15. Nor is unanimity required of these; it was some time ago, but has within thes<e> 150v years gone into desuetude, but at what time I cannot pretend to say. The service therefore is not at all so disagreable, as one may still stand to his own opinion altho all the rest contradict it. And as juries are not here required in civill causes, they return so seldom that the better sort can, as is realy the case, be solely employed without any great hardship. Nothing however appears at first sight, or on reading an account of it, more admirably contrived for preserving liberty and | freedom than this form of the English juries. And we see that the people became soon so enamoured of it that it became a matterw which makes an article of the Magna Charta.90 Nemo liber, etc. Nec in eum ibimus, nec in eum mittimus nisi per legale judicium parium suorum. And this rule is still observed in all courts excepting the Chancery. The reason of their not being used in them was that when the office of Chancellor was at first erected he was not granted the power of calling a jury, since if he possessed that power he would easily form a court, which it was not intended that he should. But when it was found necessary to give him a judiciall power this was done without any regard to a jury. Justice of Peace courts also have no jury in most cases. These are the only two exceptions to the above rule in the Magna Charta. The Court of Session in Scotland never use a jury. The reason seems to be that being 15 in number they considered themselves as a jury. In criminall cases also our juries | seem also to be on as good a footing, altho there is not such great liberty granted the accused person in challenging the jury, etc.

Tho the king be considered as the fountain of justice, and had originally the power of erecting courts by his own authority as he did the 4 great courts of Westminster, yet this is now taken away. Henry the 8 in like manner erected by his own patent three courts which had never been before. These were, 1st, the High Commission which tried all ecclesiasticall matters; 2dly, the Court of Star Chamber which tried criminall causes; and 3dly, the Court of Wardship which had the management of all the wards which fell to the king. The two first of these were abolished in Charles 1sts time on account of the irregularity and injustice of their proceeding.91 The other was taken away in Charles 2ds time,92 for when he exchanged that emolument for 1,200000 per annum the court necessarily fell to nothing. He can not now however create any court without the consent of the | Parliament; nor can he judge by himself in any cause but must allowx the common course of justice to be followed.

There seems to be no country in which the courts are more under regulation and the authority of the judge more restricted. The form of proceedings as well as the accuracy of the courts depends greatly on their standing. Now the courts of England are by far more regular than those of other countries, as well as more ancient. The courts of England are much more ancient than those of France or Scotland. The Parliament of Paris93 was instituted by Francis the 1st who was cotemporary with Henry the 8, and the Court of Session by James the 5th about the same time. As the authority of government is then strong and they have at first no precedents,y we see that the courts at their first institution have allways taken great liberties. They are neither tied down by the brieves nor encumbered with a jury. These courts were also instituted after the civil law came to be known and to be a fashionable study; | the new courts would disdain to follow the precedents of those courts on whose ruin they had been erected, but would rather follow the rules of the civill law. The Court of Session would pay little regard to the proceedings of the old Court of Justiciary, het Parliat. of Paris to those of the bailies, and the Star Chamber to those of the other courts. The law of England is free from all such illegible wordz and is therefore of a peculiar nature and well worth the study of a speculative man. In some points, as those of contracts and real rights, it differs from all others. Our courts are altogether regulated either by the feudal or civil law.

New courts and new laws are as Blank in MS.a says great evills. Every court is bound only by its own practise. It takes time and repeated practise to ascertain the precise meaning of a law or to have precedents enough to determine the practise of a court. Its proceedings will be altogether loose and innacurate

Gap of about three lines in MS.

[k]Illegible word deleted

[l]‘appear’ deleted

[m]Illegible word deleted

[n]‘been’ deleted

[86 ]iv.119 ff. above.

[87 ]Kames, Law Tracts, I.115 ff., argues that trial by battle was replaced by compurgation, which itself gave way to jury–trial.

[o]Reading doubtful

[p]‘having’ deleted

[q]‘comp’ deleted

[r]Replaces ‘per favorem’

[88 ]Hawkins, II.43.7. The number of peremptory challenges (without cause) was reduced from 35 to 20 by 22 Henry VIII, c. 14 (1531).

[s]Reading doubtful

[t]Replaces an illegible word

[u]Reading doubtful

[89 ]This sentence perhaps refers to Scotland, where the accused could reject up to 30 (13 is probably a mishearing) of the 45 assizers who had been cited, leaving a jury of 15: Act, 1672, c. 16 (A.P.S. VIII.80, c. 40); Sir G. Mackenzie, Works, II (1722), 352. But the context seems to require reference to England.

[v]‘or 160’ deleted

[w]Reading doubtful

[90 ]Art. 39: no free man may be taken or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go against him nor proceed against him except by the legal judgement of his peers or by the law of the land.

[91 ]16 Charles I, cc. 10, 11 (1641).

[92 ]12 Charles II, c. 24 (1660), abolishing military tenures.

[x]‘it to be taken away’ deleted

[93 ]The Parlement de Paris in fact developed as a distinct institution during the thirteenth century, and was divided into various ‘chambers’ in the fourteenth. The Court of Session was founded in 1532.

[y]Illegible word deleted

[z]Illegible word

[a]Blank in MS.