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Tuesday. March. 15th. 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.


Tuesday. March. 15th. 1763

I endeavoured yesterday to explain some of the generall laws respecting treason. Treason is the crime which immediately attacks the being and existence of the lawfull established government. There is as I observed a very | essentiall difference betwixt this crime in republicks and in monarchies. It is the interest of monarchs that the laws of treason should secure the possession of the present monarch, without rendering him answerable for every slig<h>t offence he might give them, and that the subjects should not be encouraged in two enquiries: first, that they should not enquire too minutely into the soundness of his title to the throne, or 2d, into the tenor of his conduct, whatever the sovereign be who is possessed of the throne. Monarchies are therefore very unfavourable to tyrannicide as they would otherwise be very precarious.—Republicks on the other hand always favour it, have almost constantly enacted laws for its encouragement. There are severall reasons for this difference. For 1st., one who is guilty of treasons is much more easily distinguished, as I mentioned before, and likewise their fears of treasonable persons are very different. Rebellions of the people against the sovereign, or insurrections or discontent amongst them, are what is chiefly to be feared by a monarchy. They will therefore discourage any enquiry or searching into their title or administration, or any doctrine | which teaches them that the monarch ought not to possess the throne if he be not lawfully come of the family or otherwise fails in his title or his administration. That principle therefore which would maintain tyrranicide as lawfull is of all others most to be discouraged, as it entirely destroys the allegiance of the people to the sovereign.—But on the contrary both these reasons pleadt for it in a republican government. Treason is there very easily distinguished, and also the very thing they are afraid of is the usurpation of some of their own great men by superior art or power. This is what they chiefly dread, and they therefore encourage the slaying of such persons, as the only method of getting rid of them.—The laws of a monarchicall government for the reasons here mentioned <?>. The laws supported Oliver Crom. no less than they did any of the lawfull sovereigns; but the laws of the republicks did never support an usurper[s].— —

Treason is that crime which consists in attacking | the being and existence of the government or sovereign power. This may be done in two ways. It may be done either 1st, by the attempt of some of theu subjects to overturn by an internall change the present [and] form of government, or 2dly, an attempt to overturn the established government by introducing a foreign enemy into the country and giving it up into their hands. The former of these is called properly perduellio and the other proditio or betraying.—Tarheason2 or treason properly denotes this crime of betraying the country to an enemy from without. Both these are provided against by the laws of England.3 — 1st of all,v attempts against the person of the sovereign to destroy or injure him. The 1st article of the Act of Treason therefore provides that it is treason any way to compass or imagine the death of the king,4 and that not only when it is realy accomplished but when it is declared by any ouvert act, as forming a conspiracy against him or providing arms against him. The most atrocious attempts could not have been punished if this | had not been the case. The gunpowder plot, which was an evident design to destroy the king and his nobles, could not have been punished as it was not put in execution. To have laid powder below the house of a private person would not have been death, as the attempting or conceiving the death of a private person is not considered as murther or felony, tho the same attempt when evidently directedw against the king is treason. In the injuries of private persons the publick enter only by sympathy, but in the case of the sovereign they punish the injuries against themselves, and for this reason injuries against the publick are always more highly punished than those of individualls.5 — The 2d branch of this article makes it treasonable to corrupt the kings companion, that is, his wife, or his sons wife, or his eldest daughter.6 This seems to proceed chiefly from the disgrace which is thereby incurred to the family, and this also, that it may sometimes occasion a disputed succession. Thus Edward the 5 denied that Edwx was the son of <?>.7 By this | all attempts are provided against whichy regard the person of the king or his relations, for with regard to the more distant relations the corrupting them is not treason, tho it would be a very great piece of bad manners. 3d, by the 2d article it is high treason to levy war against the king openlyz or otherwise, or even contriving or imagining the doing of it, as by entering into a conspiracy against him tho nothing is effected. This last by a wide construction isa constructed to come under the 1st article, as one who bears arms against the king is supposed to design his death whenever it is in his power. This also is different from the private law, as the carrying arms against a private person is not esteemed murther nor the conspiring to kill one. Under this are included the encouraging in any shape the kings enemies, the aiding, comforting, or assisting them, whether it be with arms or provisions, giving up any towns or fortresses of the kings into their hands, or refusing to give up to the king any town which may be of use to him; and this is properly called proditio in Latine.

| A 3d species of high treason is any attempt8 on the kings officers when in the courts exercising their office, as the killing of the Chancellor, or the judges in the three great courts Blank in MS.b or in the assizes.9 This is only when they are in court or in the exercise of their office or going to court. At an other time it is only considered in the same manner as the killing of any other man. This was established in the time of Edward the 5th10 as well as the others. The wounding them even in court is not considered as treason. 4th, is the counterfeiting of the great or privy seal. The counterfeiting the sign manuall is an offence of a very different nature and is considered only as felony.11 The great and privy seal are the marks of the kings authority, and the counterfeiting them is to usurp the power of the king over the subjects and is therefore justly considered as hurting his dignity and authority. 5th, is the counterfeiting the kings coin. But for this there does not appear to be so great reason. It should naturally be considered not as treason, but as the crimen falsi; and for this reason it is now | generally tried as a felony, as it involves both the penalties of treason and of felony, or as a misprision.—There can be nothing to hinder any one from coining money and putting his own head and coat of arms upon it; in this there can be no crime. But such money offered does not make a lawfull tender of payment. It will pass only for the bullion that is in it. The kings coin tho ever so much debased must be accepted when tendered in payment; and the refusing it is considered as a high misdemeanour and is liable to the penalties of felony. This priviledge money coin’d by a private person could not have, so that a private person could make no benefit by coining money in his own name. The only thing which could be of any service to him would be to counterfeit the kings coin and make it of a baser standard. The coining of money can not however be properly considered as treason. The only reason for this was the jealousyc the kings had of this priviledge, which was then very profitable and had not long before been possessed by many of the great lords of the kingdom. — —

| These are the five species of high treason established by the laws of treason under Edward 5th.12 —There are some others which have been introducd by Henry the 8 and after him by William and Mary. Henry, having often quarrelled with the Pope, at length renounced his supremacy, and tho he did not declare himself a Protestant, acted as such and set himself up as the head of the church;13 and to maintain his authority in these matters established the High Commission Court; and in the same manner Elizabeth afterwards was accounted as the head of the church. At this time the immoderate zeal and bigotry of the papist<s> was an object of [as] great danger to the sovereigns of Europe who had embraced the Protestant religion. Elizabeth, Henry 8th., and Edward the 6th were in continuall danger from the plots and conspiracies of the bigotted papists, spurrd on by their priests. The Roman Catholick religion was therefore considered as one that encouraged all sorts of attempts and schemes against the sovereign. This being more than ever encouraged under the reign of Mary made Elizabeth in the greater | danger. It was therefore thought necessary to inflict the penalties of treason on all those who any way encouraged it, such as the receiving of the Popes bulls and obeying their orders over the clergy;14 being converted or converting others to this religion;15 extolling or magnifying the Popes power to grant indulgences and otherwise as the head of the church, by writing or word of mouth;16 bringing into the kingdom Agnus Dei’s or relicts;d17 being educated at a popish seminary and not taking the oaths to the government in six months after return to the kingdom; the being a popish priest, or the aiding them in any way, as the receiving them into your house.18 All these were made treasonable as being against the subsistence of the government and encouraging a religion which tended to overturn it by every possible means. Tho these laws are not put in execution for some considerable time past, yet they are still in force. Yet it were proper that they were repealed, as very harmless men may be in danger from accidents of no consequence and meet with great trouble, especially if he has by | any form or means offended the government. But tho this might now be done with great propriety, any one who reads the history of Europe at this time will see that they were alltogether reasonable at that time, considering the vast disturbances and danger the bigotry of the papists exposed them to. Again, the long quarrels which subsisted betwixt Charles 1st and his Parliament, the rebellion which arose from them, the death of the king, and the usurpation of Oliver Cromwell; during all this time and after the restoration of Charles 2d his bad conduct and tyrannicall turn, and still more in the weak and silly behaviour of his brother James, it would be naturall to enquire how far it was lawfull to resist the power of the king. The Tudor family who immediately preceded these had (as I said)19 been altogether absolute. This gave the court party an opportunity of alledging, and occasioned many to believe, that the constitutionall government of England was absolute, that the people had no title nor could lawfully resiste or limit his power in any respect, | and that all the people were his subjects and servants. The other party again alledged that he was no more than the supreme magistrate, trusted by the people as their attorney with the management of their affairs, and that as such he might be called to an account for his conduct; and that if they turned him out unjustly and without sufficient cause clearly proven it was an offence and very blameable, but still they had a tittle to do it. The whole power of the government flowed from the people, and that therefore they might turn out their servants when and for what cause they pleased, and did not do any thing to which they had no title even when they turned out one who had not done any thing amiss. A master who turned away his servant thro mere caprice acted amiss, but he did not more than what he might lawfully do; the same was the case, they said, betwixt the sovereign and his subject, king and people. This was the prevailing and favourite doctrine from the year 1640 to 1660.—But the bad conduct of Cromwell and his perfidious | behaviour, as he betrayed all parties, and the weak government of his son Richard which follow’d it, disgusted the whole people at a republican government. The Restoration immediately followed upon this; these principles were laid aside and the other was the fashonable one. The Puritans or Presbyterians who favoured it became altogether odious and were greattly oppressed, and the republican principles were going out altogether, till thef foolish and tyrrannicall conduct of James again roused them, so that he was turn’d out andg the popish line for ever, as he had been endeavouring to introduce that religion. William and Mary were called to the throne, and then by an Act of William20 the succession was fixt upon Queen Anne and her issue, andh failing her on the present family, setting asside many nearer relations as the Duke of Orleans, the King of Sardinia, and many others, passing over to them by a very wise constitution as the nearest Protestant heirs. This succession was intirely a parliamentary one, and as the contrary doctrine had for some time | prevailed this new government was in danger from the prejudices which then prevailed. It was therefore thought necessary to introduce some new laws of treason, as 1st, that any one who should maintain in print or writing that the king and Parliament together had not the right to alter the sucession as they pleased should be accounted as guilty of treason; if by word of mouth, he should be liable to a premunire. 2dly, that one who maintaind the right of the Stuart family as still subsisting should be liable to the pains of treason if in print or writing, and if by word of mouth to a premunire.21 This law also might now be well abrogated, for tho these principles were necessary to be inforced to the support of the government at that time depending on them, [but] the government being establishd on them has fully confirmed them, and these laws can serve little other purpose than to involve innocent or harmless people in trouble.—The laws of treason before the Union were very confused and absurd, making | a vast number of crimes liable to the pains of treason. Leasing making as it was called was liable to these pains, by which they meant the misrepresenting the king to the people by giving them any informations, or the people to the king, which was said to be infusing prejudices against them.—This was a great oppression as no one could then talk or write freely of the government or the ministers, and far less present to the king a bold and free memorial setting forth any grievances. But by the Union the laws of treason are the same in Scotland as in England.22

[s]The last six words replace ‘a tyrant’

[t]Reading doubtful

[u]Illegible word deleted

[2 ]Sic. Presumably the French trahison was intended.

[3 ]25 Edward III, st. 5, c. 2 (1352); Hawkins, I.17.

[v]Reading of last two words doubtful

[4 ]King or queen or their eldest son.

[w]Reading doubtful

[5 ]Cf. TMS II.iii.2.4: ‘The design to commit a crime . . . is scarce ever punished with the same severity as the actual commission of it. The case of treason is perhaps the only exception. . . . In the punishment of treason, the sovereign resents the injuries which are immediately done to himself: in the punishment of other crimes, he resents those which are done to other men. It is his own resentment which he indulges in the one case: it is that of his subjects which by sympathy he enters into in the other.’

[6 ]His wife, his eldest son’s wife, or his eldest daughter unmarried.

[x]Possibly deleted

[7 ]This could possibly be a reference to the doubts cast by Richard III on the legitimacy of Edward V on the alleged ground that Edward IV’s marriage to Elizabeth Woodville was invalid.

[y]Reading doubtful

[z]Reading doubtful

[a]‘extended to’ deleted

[8 ]Actual killing was required.

[b]Blank in MS.

[9 ]The Act covered slaying ‘the chancellor, treasurer, or the king’s justices of the one bench or the other, justices in eyre, or justices of assize, and all other justices assigned to hear and determine, being in their places during their offices’, but not the barons of the exchequer. Hale, I.230; Hawkins, I.17.46.

[10 ]Edward III.

[11 ]It was made high treason by 1 Mary, st. 2, c. 6; Hawkins, I.17.53.

[c]‘of’ deleted

[12 ]Edward III.

[13 ]26 Henry VIII, c. 1 (Act of Supremacy, 1534).

[14 ]13 Elizabeth, c. 2 (1571).

[15 ]23 Elizabeth, c. 1 (1581).

[16 ]5 Elizabeth, c. 1 (1563) made this a praemunire; cf. LJ(B) 84, below.

[d]Reading doubtful

[17 ]This was not treason but was made a praemunire by 13 Elizabeth, c. 2.

[18 ]27 Elizabeth, c. 2 (1585) made it high treason for a subject to receive popish orders, and not to return from a popish seminary within six months after a proclamation to that effect in London and take the oaths within two days. However, not to discover a popish priest to the authorities was merely punishable by fine or imprisonment. Hawkins, I.17.81.

[19 ]iv.164–5 above.

[e]‘the’ deleted

[f]Illegible word deleted

[g]Reading doubtful

[20 ]12 and 13 William III, c. 2 (Act of Settlement, 1701).

[h]‘after’ deleted

[21 ]4 and 5 Anne, c. 8 (1705) and 6 Anne, c. 7 (1707).

[22 ]7 Anne, c. 21 (1708). Mackenzie, Laws and Customes of Scotland in Matters Criminal (1678), VI and XXX.6.