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Friday. March. 17. 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. 17. 1763

There are three branches of treason properly so called, under which all these abover | may be reduced. 1st, the attempts of any of the subjects by unlawfull force and violence to subvert the established government. This is what was called by the Romans perduellio, which comprehends in a monarchicall government the killing or attacking the sovereign. 2d, that by which a subject of the state endeavours to betray the state to a foreign enemy, whichs is properly called proditio. 3dly., that by which any affront is attempted to be thrown on the government, which is Iaesa majestas. The punishment of perduellio and proditio were very soon put upon the same footing, as they are both very heinous crimes; and both are considerably more so than the other. Under the emperors all these were mixt and blended together, so that the smallest of crimest against the emperors dignity was punished in the same way as the highest treachery; uttering any contemptuous speech, or even forming a libell against the nobles, that is, his ministers, or even the throwing a stone into his palace,47 or melting down his statues or any thing made in his honour:48 these made one liable to the same penalties as perduellio, which was undoubtedly altogether absurd.

| I yesterday gave you some account of those things which are punished as treason, as well as the lesser crimes against the king; the four sorts of treason which are so by the old statute, as well as an other not altogether so reasonable. There are others which are called felonies against the king, which subject one to the penalties of felony. The other things which would be felony against the subject,u are also felony when committed on the king and would be prosecuted as such; these are called felonies against the king because they are considered as against him as such.—Others as I said come under less penalties.

We shall next consider the crimes which the sovereign may be guilty of against the subjects. The 1st. thing to be attended to here is, who are the subjects.—The laws of different countries make great variations in this matter. In generall when the citizenship intitles one to peculiar priviledges, family descent, i.e. being desended from one who was a citizen, the number of citizens being small, gives one a probable chance of being preferred to some office or employment as their number is very large | in proportion to that of the number of citizens; besides many other benefits common in small states. But in large ones, where this priviledge gives one no other advantage than that of electing or being elected out of a vast number of others, the place of ones birth generally determines whether or not he is to be accounted a citizen. In Holland, Switzerland, the Italian and other republicks, birth does not make one a citizen. One may be born of a family who have resided for some generations without having any one of the priviledges of a citizen. The numbers are here but very small, and the number of offices and other emoluments attending citizenship extremely great. One might in the same manner at Rome or Athens be born of parentsv whose ancesstors had resided many years amongst them, and stillw be denominated peregrinus or μετοικος.49 At Rome it was necessary that ones father should have been a citizen; and the Athenians, who were most chary of any in bestowing this priviledge, required that both his father and mother should be Athenian citizens, or descended | from those who were. They, at least in their vigorous and flourishing state, were more chary of it than any others, in so much that when Asmyntas50 and Philip of Macedon desired to be made citizens of Athens they could obtain none other of the priviledges of a citizen excepting that of being put on the same footing with citizens with regard to imposts and duties paid for goods, which are in most countries considerably higher on strangers than citizens, andx is the case in this country allso, a few instances being excepted. The reason of this was the same that has been the cause of the same measures in other states: the smallness of the number of citizens, in proportion to the power and extent of territory they possessed. The city of Athens never contained above 23 or 25000 free citizens of the military age. This number was very small compared to the extensive territory they possessed, having the property of most of the islands in the Aegean sea, besides many cities and colonies in Thrace and Asia. The revenue arising from this territory must have been very considerable, and was wholly the property of this small number, who were intituled to many benefits out of it. The<y> had frequent distributions of money or corn; they had their children maintain’d at the publick expense when | necessary in the Pironeum,51 which was then reckoned no disgrace; the<y> had also an allowance for their attendance on the courts and the assemblys of the people, and at last had even one to enable them to attend on the theatres. Had they been very free in communicating the citizenship, the share of the publick stock which fell in this way to each of the old citizens would have been proportionally diminished; and they therefore allways opposed the admitting of any new members into the city. Such republicks were much in the same condition as the parishes are in England, where every person who is reduced to a state of poverty has considerable allowances off the parish stock, and for this <?reason> no one will be admitted as a member of a parish who can not give security that his children shall not come upon it for their maintenance.52 All small republicks therefore are very chary in communicating their priviledges; the power of electing and of being elected is no inconsiderable priviledge in a state consisting of a small number, 10 or 15000 citizens. But in a country as England where the numbers are much larger, being about 9 or 10,000000, and if we include Ireland and the plantations about 15,000000, it is no great compliment to give one the right of being | elected out of so great a number. Birth therefore determines citizenship. One who has been born within the dominions of the state hasy the rights of possessing lands, is capable of holding offices of trust and profit, may elect others or be himself a Member of Parliament, and all other rights of a citizen. But in Holland and Switzerland, particularly in the canton of Bern, they are remarkably chary, insomuch that they refused to comply with the King of Frances request in being made a burgess of the town. The rule at Rome was the same as in other republicks, but they were allways much more free and liberall in conferring it on those who were not born citizens. The reason of this probably was that Rome was always a much larger city than the others; we see that soon after the expulsion of the kings the number of free citizens amounted to about 1000000, and as this number includes only those who were of the military age, the number of free inhabitants enclusive of slaves must have been about 800000 or 1,000000. For which reason, tho the right of voting and the others of a citizen were by law confined to those whoz were born of citizens, yet they were very liberall in conferring them on any illustrious persons who came among them or even upon whole towns or provinces of the empire.

| These two are the foundations of citizenship in all countries: in the larger ones, birth within the dominions of the state; and in the smaller ones, having ones father a citizen, and in those who are still more scrupulous, both father and mother.

The dissabilities and incapacities which aliens lie under are allso very different in different countries.—In the first ages of Rome, in the kingdom of Morocco, in Turkey, and in Corea in the Blank in MS.53 part of Asia, and in a word in all the barbarous nations in the four quarters of the world, a stranger who came within the territory of <the> kingdom was siezed and made a slave. If he belonged to a state in alliance and peace with the state into which he had come he was treated according to the footing the two nations were on in the agreement. But if he came from an unknown nation to the Roman territory, by the violence of a storm or other such like accident, and a country betwixt which and the Romans there was no alliance, he was made a slave and his goods confiscated.54 They have probably at first belonged to the first occupant, but to prevent the scramble which such unnapropriated goods occasion | they were adjudged to the fisk.55 —Strangers and enemies were called in common by the name of hostis. The word peregrinus was introduced long after when a distinction came to be made. Cicero56 observes that the word which now signifies an enemy anciently signified a stranger. This he, who is always at great pains to extoll the virtue and humanity of the old Romans, considers as a sign of their vast humanity and moderation. Our humane ancesstors, says he, gave no other name to an enemy than what they gave to any stranger. But the fact realy was that they considered strangers and enemies as one and the same thing; so that we might with greater justice say that strangers had the same name as enemies.57 And there is in fact no great difficulty in accounting for this. Two savage neighbouring nations who are in alliance will treat the members of each other with some considerable humanity. But those of other nations they have no knowledge of but what they have got when at war with them. The only light they have | known them in is in that of an enemy; they have had no commerce or intercourse with them by trade, and are either presently at war with them or have been very lately, and therefore look on any one who comes amongst them as a spy, unless he has got a safe conduct from home. And on these principles it was that the crew of the Litchfield man of war were siezed and made slaves, tho the Emperor of Morocco was at peace with Britain at that time, and werea ransomed according to the custom of the country.58 — But when men have a little farther progress in society and the artsb and improvements of it, and begin to find the benefit of having foreigners coming amongst them, who carry out what is superfluous of the product of the country and importing the superfluities of their country, which tend either to the convenience or the luxury of the country, then they will find the benefits of foreign commerce and will be induced to encourage the settling of foreign merchants amongst them. For this purpose it will be absolutely necessary to give them the protection of the laws, both to their persons and their goods. | This will necessarily require that they should have the benefit of all personall actions in the same manner as the citizens, that they may have redress if they be beat or abused, and that those who should kill them should be liable to the same penalties as those who killed a citizen; otherwise they could have no security for their lives or persons, and <?this> is absolutely necessary if they be allowed to settle amongst the citizens. And it is no less necessary that they should have all actions which regard moveables, so that they may be enabled to make their contracts effectuall, to recover goods they have entrusted to the care of others, and such like. This is all the length aliens have come either in the ancient states or the modern ones. An alien in England has all these, which are called there personall actions, which include all those which regard moveables. Reall actions concern only land estates; of these they have none at all. They can neither purchase or inherit lands or transmitt them to others. Neither can an alien have a lease of land for years as this is not necessary for a merchant in order to carry on his business. But he may have for that purpose a lease of a | house for years. This at first was extended merely for the encouragement of merchants, but not for mechanicks or tradesmen. The English have also interpreted it in this way, andc in Henry the 8ths time, when they were more jealous than ever in this way, and looked on all such foreign tradesmen as taking the bread out of the poors mouth, they got a law passed that no tradesman who was an alien should be allowed to possess a house for years.59 —There is also a distinction made betwixt an alien enemy and an alien friend, that is, an alien of a country which is at war with us and of one which is at peace. An alien friend has the priviledges above mentioned. But an allien enemy has no security without the kings protection either in person or goods, and tho he can have an action in the name of another can have none in his own name either real, personall, or mixt. An alien friend has all personall actions and mixt ones, so far as they are personall. The king of G.d in the beginning of this last war gave his protection to all French men who inclined to settle in thate country.

| There are two methods by which the inconveniencies of alienage can be removed: either by letters of denization from the king, or by an Act of naturallization from the Parliament. The letters of denization can makef him capable of purchasing lands and of transmitting them to his posterity or any heir ab intestato or testato who is also free of the country; but can not convey to him the right of inheriting from others.—The king as heir of all aliens and the person to whom all lands they purchase would belong from the moment they become possessed of them, as they are incapable of possessing, may cede from his right both during the persons life time and after his death. But he has no power in this country at least to give away the right of another. He can give away the rights of purchasing or transmitting an inheritance in any way he pleases, as that only hurts himself, but he cant give the right of inheriting to an alien, as the estate would by my alienage go to another relation. If therefore one whog had been a citizen has been obliged to leave the country or stay abroad on account of business, the wives of such generally return and are brought to bed at home, as they could not possess any estate that falls to them, even by | an Act of denization; tho if a relation inclined to bequeath one in this condition an estate as a legacy he might inherit it, as legacys are accounted a species of purchase. But to be made inheritable and be put on a levell with other subjects an Act of Parliament is necessary, and it can do any thing. Formerly an Act of naturallization gave one all the rights of a citizen and made on<e> capable of having any dignity or nobility conferred upon him. But when King William came over many of his friends in Holland came over with him, and these were frequently more about and more esteemed, as he was better acquainted with him60 than the English, and were frequently preferred to them in honours and titles. This greatly offended the English, who took this naturall partiallity in very high hurt. And an Act of Parliament was therefore made declaring that no Act of naturallization should be passed in which it was not provided and expressly declared that the person naturallized should still continue incapable of being ever admitted as a peer into the House of Lords or of being chosen a member of the House of Commons, tho he had all the other rights above mentioned.61 I shall observe one other peculiarity in the laws | of some countries with regard to allienage which is not the case in England.—All laws which extend property beyond the person of the possessor are of later introduction than those which constitute property, and are not at all necessary to its existence. Property naturally is connected with all those which are called the personall rights (as above mentioned) by the English law; but the power of testing is not at all necessary and has in all countries been posterior to the others. For this reason in many countries an alien can not make a will; his property goes to the king by what is called the jus albani or le droit d’albain, albain62 being the word which signifies a foreigner. These goods have at first gone to the occupant, but to preven<t> the confusion that ensues on such a scramble have been assigned to the king. The Elector of Saxony, now King of Poland, made a law that all those in whose nations the Saxons were capable of property should be so in Saxony, but otherwise not.63 — This seems to be a very just retaliation. This right took place at Rome. The goods of a peregrinus who died in Rome went to the fisque.

[r]Reading doubtful

[s]Reading doubtful

[t]Reading doubtful

[47 ]Perhaps an inference from D. 48.4.5.

[48 ]D. 48.4.6.

[u]Replaces ‘king’

[v]Replaces ‘a father’

[w]Illegible word deleted

[49 ]Resident alien.

[50 ]Amyntas III, king of Macedon 393–370 b.c., father of Philip, king of Macedon 359–336 b.c.

[x]Replaces ‘which’

[51 ]For services to the community individuals could be given dining privileges in the Prytaneum (a sort of Town Hall); also war orphans were maintained at public expense.

[52 ]8 and 9 William III, c. 30 (1697).

[y]‘all’ deleted

[z]‘had’ deleted

[53 ]Blank in MS. Presumably the missing word is ‘eastern’.

[54 ]D. 49.15.5.2; Montesquieu, XXI.14.

[55 ]Fiscus or treasury.

[56 ]De Officiis, I.37.

[57 ]Hume, ‘Of Commerce’, Essays, I.292, note.

[a]‘ob’ deleted

[58 ]The Litchfield was wrecked off the Barbary coast on 29 November 1758 and the crew ransomed from the emperor for 225,000 hard dollars in April 1760. Gentleman’s Magazine (1760), 200, 391; (1761), 359–63.

[b]Illegible word deleted

[c]‘have’ deleted

[59 ]32 Henry VIII, c. 16 (1540) prohibited alien tradesmen from holding a house for a term of years, complaining of the detriment to Englishmen from the presence of many aliens.

[d]Reading doubtful; ‘B’ deleted

[e]Reading doubtful

[f]Replaces ‘give’

[g]‘had the’ deleted

[60 ]Sic. Presumably ‘them’ was intended.

[61 ]1 George I, st. 2, c. 4 (1714).

[62 ]Aubaine.

[63 ]E. Vattel, Droit des gens, II.8.112.