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Wednesday. March 23d. 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 23d. 1763 —

In yesterdays lecture I showed you that whatever be the principle of allegiance and obedienc<e> of the sovereign, it must have some limits. I endeavoured also to shew that the commonly received one of a tacit contract can not be the just one. This principle must certainly be that from which the generallity of the world think themselves bound. Every morall duty must arise from some thing which mankind are conscious of. The case is the very same as in that of approbation and dissapprobation; as no one can draw a conclusion or agree to one without knowing the premises, so no one can have a notion | of any duty from a principle of which they have not at least some confused conception; for it is very seldom that one has a distinct notion of the foundation of their duties, but have merely a notion that they have such and such obligations. All have a notion of the duty of allegiance to the sovereign, and yet no one has any conception of a previous contract either tacit or express. Why do those who engage in parties and factions against the government refuse to take the oath of allegiance? If by staying in the country they come under a contract, theg same as if it was voluntarily entered into, what need is there of an express oath afterwards. This shews evidently that they have no notion of this tacit contract; and it is no less evident that the government do not rely on it, else why would they put this oath to them? Besides if allegiance depended on the tacit contract of the parties an express declaration against it, as well as leaving the countries, would render them altogether free from it, and an alien would be more expressly bound than any other, the quite contra|ry of which is the case. So that this tacit contract, so much talked of, is never thought of either by the governors nor the governed. The principles on which this allegiance are really founded are those of authority <?and> of public or generall utility. It is very difficult to define what authority is, but every one has an idea of it in his mind. Several things tend to give one an authority over others. 1st, superiority of age and of wisdom which is generally its concomitant. 2dly, superior strength of body; and these two it is which give the old an authority and respecth with the young. 3d, superior fortune also gives a certain authority, caetereis paribus; and 4thly, the effect is the same of superior antiquity when everything else is alike; an old family excites no such jealousy as an upstart does. An ancient jurisdiction and power increases the authority of the person in whatever manner it be obtaind. He appears to have no more than what his father, etc. have had for time immemoriall. An office held for life gives one more respect than one which is but temporary.— | A judge has more respect paid him than the mayor of a burrgh; we indeed pay a respect to him on account of his office. We know here that theyi obtain’d their authority but as yesterday, and we know that the one must soon lay down his authority whereas the other continues for his life. The antiquity of it also adds respect to an old authority. Civill authority is for this reason never so much respected as the others, as they are hereditary. An ordinary Justice of Peace has all the power of many of the hereditary jurisdictions, yet no one thought that they were not infinitely more respected from the antiquity of the power they possessed.—For this reason a hereditary monarch has much greater power <and> authority than an elective one. He has a vast revenue and a great number of dependents consequent upon it which have been in his family for many generations, which gives him even greater power than that which he derives from the kingly power. This joined with the antiquity of it gives him vast authority. Every one is sensible of the propriety of paying re|spect to one who is possessed of such a power, which also, being no greater than what his ancestors had, can excite envy in no one. The principle of authority goes higher here than any where else. The other principle has also its weight. Every one sees that the magistrates give security to property and strength to the laws, and that without them all must fall into confusion. It seems therefore to be his own interest and that of every one else to obey thej established government, when it acts with ordinary moderation and tollerable decency. Every one sees that the government has a vast authority and great influence over others so that all attempts to overturn it must be resisted, and with great vigour. And tho one may sometimes think that there are inconveniences in the government, he must see that there will be great difficulty and disturbance arise from an attempt to alter it. The persons in power will, as it is their interest, make a vigorous resistance, and he has but little reason to wish for a change. Justice is administered tho not in the most perfect | manner yet tollerably well, and ones dread for himself and others in consequence of an attempt to subvert it disposes him more readily to submit to it. And indeed it will but seldom happen that one will be very sensible of the constitution he has been born and bred under; everything by custom appears to be right or at least one is but very little shocked at it. In this case andk in many others the principle of authority is the foundation of that of utility or common interest.

The severall parts of the supreme power were at first in the early governments altogether precarious. When now the government is become absolute in all these branches in every civilized country, there are still certain cases in which the people have a right to resist the sovereign power. Tho’ every thing belongs to the sovereign, tho he is trusted with every part of the publick government and the whole power, yet a certain gross abuse of it must entitle the people to resist; bad conduct must necessarily deprive them of all their authority. Childhood, lunacy, ideotism must take away all authority and require a <?new> sovereign to be put in the place of the old one. These interruptions cant | happen in an assembly; but a certain degree of perverseness, absurdity, and unreasonableness, inferior indeed to this, whether in a monarch or an assembly, as those of Caligula, etc., plainly establishes in the eyes of every one the right of turning them out in the hands of the people and justifies all the measures used to that end. But as single persons are much more liable to these absurdities than large assemblies, so we find that revolutions on this head are much more frequent in absolute monarchys than any where else. There are continuall revolutions amongst the Mogulls; the Turks seldom have the same sultan (tho they have still the same absolute government<)> above 6 or 8 years. There have been more revolutions in Russia than in all Europe besides for some years past. The folly of single men often incenses the people and makes it proper and right to rebell.—An equall absurdity will have the same effect in an aristocraticall government. The intollerable demands and severity of the rules laid down by the Genoese with regard to their conduct to the Corsicans justify entirely the rebellions and persevering resistance of those islanders. They granted as a very great concession that | no one should be executed by the governor informata concientia,80 that is, without bringing him to a triall. This being granted as a concession plainly shews the unreasonableness of the authority they required. Such cases seldom happen; and the subjects have seldom any occasion to use these violent means, and the encroachments of the sovereign are often overlooked as being what the people are accustomd to.

The foundation of the allegiance of the people being a tacit contract is not at all just, and we see accordingly that few of those limitations laid down by writers who follow that scheme are to be found in fact in any country.—It is a rule laid down by Mr. Locke81 as a principle that the people have a right to resist whenever the sovereign takes their money from them without their consent by levying taxes to which they have not agreeed. Now we see that in France, Spain, etc. the consent of the people is not in the least thought of; the king imposes what taxes he pleases. It is in Britain alone that any consent of the people is required, and God knows it is but a very figurative metaphoricall consent which is given here. And in Scotland still more than in England, as but very few have a vote for a Member of Parliament | who give this metaphoricall consent; and yet this is not any where reckoned a sufficient cause of rebellion. No doubt the raising of a very exorbitant tax, as the raising as much in peace as in war, or the half or even the fifth of the wealth of the nation, would, as well as any other gross abuse of power, justify resistance in the people. But where this power is exerted with moderation, tho perhaps it is not done with the greatest propriety as it is in no country whatever, and tho not even a figurative consent is requir’d, yet they never think that they ought to resist tho they may claim the liberty of remonstrating against it.—Government was established to defend the property of the subjects, but if it come to be of a conterary tendency, yet they must agree to give up a little of their right. You must agree to repose a certain trust in them, tho if they absolutely break thro it, resistance is to be made if the consequences of it be not worse than the thing itself.l

It is said also by these authors82 that a sovereign can not alienate any part of his dominions or transferr them to an other. All | that he can do is to withdraw his protection and defense from them and leave them to themselves. This is entirely agreable to the system of contracts; the people may object to the sovereign that tho they agree to be governd by him they do not agree to be under the power of one of his appointing; they agree to be subject to him but not to be at his disposall.m But we see that where ever government has been firmly established this is frequently done. Thus the French and Spaniards in the end of this war have agreed not only to allow us to keep the possession of some of our conquests, but also in exchange for others to yield up a vast tract of land; and they not only do not defend it but put us in the actuall possession of it, and the inhabitants thereafter become the subjects of Great Britain. This too is generally the interest of the people, as some wrongheaded people might stir them up to make a fruitless resistance to their new masters. We see that this is done not only in the making of a peace or in the course of a war, but in a much more scandalous manner, as a portion at the marriage of a daughter, or even by testament according to the good pleasure of the governors. This has been often practised by France and Spain, and the Tsar | of Moscovy is also acknowledged to have this power. The feudall governments all allowed of it, and the principallities in Germany were also divided amongst the children as a private estate, the right of primogeniture not taking place till within these 150 years. This is in effect the proper rule, to observe what is actually done in these matters; in some this power is confined to the private ministry and in some extends to the whole people. It is said that the sovereign can not alter the fundamentall laws of the country: but these depend merely on the constitution of the state at that time. Thus it is said that the French king can not alter the succession inn allowing it to pass by female heirs prohibited by the Salic law. But this depends merely on the circumstances of the affairs. The vast number of princes of the blood in France who are possessed of great estates, these will always oppose such a dissadvantageous alteration. But if it should happen that there were no princes of the blood nor any very great nobility, as was the case in Britain in Blank in MS.83 he might no doubt alter it as he pleases, as easily as with theo | succession of private persons. But tho the sovereign may be resisted, it cant be said that there is any regular authority for so doing. The property, life, and liberty of the subject are in some measure in his power; nor is it or can it be ascertained what abuses justify resistance. No laws, no judges, have or can ascertain this matter, nor formed any precedents whereby we may judge.— — —

With regard to governments where the supreme power is divided amongst different persons, there is no great difficulty in ascertaining when any one transgresses the limits of his power. There could be no doubt at the Revolution that the king84 had exceeded the limitts of his power. The 1st step he took in the exercise of government, after he had engaged to do nothing without the consent of his Parliament, was to raise the customs and excise without acquainting or consulting them. They had been raised by order of the Parliament triennially. The time was then expired, and it was dreaded that if they should not be levied the merchants would bring in in that time as great a quantity of goods as would supply the country for severall years. But this might have been | easily remedied by the expedient proposed by the council, viz that the officers should be continued, and keep an account with the merchants who should give bond for the customs on the goods imported in case the Parliament thought proper to continue this. But this advice he refused to comply with, and by a mere act of authority raised them thro the whole kingdom. But the affair ofp the excise was still more scandalous an act of authority <?> tho unjust has still somewhat respectable; but this was not the case in the excise.85 It had been granted by Parliament for a certain term of years during Charles reign, with a power to the managers to farm it out for a term not exceeding three years. This undoubtedly meant that they might farm it out for thre<e> years during the time it continued to be levied. But he enterpreted it as if this meant that they might let it out for three years at any time, and for this purpose forged an antedated deed which he got signed by the officers of excise as done in his brothers reign, and by this littl<e> dirty fraud he decreed the | excise for a year.

[g]Reading doubtful

[h]Reading doubtful

[i]‘hold th’ deleted

[j]Illegible word deleted

[k]‘all’ deleted

[80 ]Informata conscientia, ‘on private information’.

[81 ]Civil Government, §§ 138–40.

[l]‘It’ deleted

[82 ]e.g. Pufendorf, VIII.5.9; Cocceius, I.3.12; Hutcheson, System, II.297 ff.

[m]Illegible word deleted

[n]Reading doubtful

[83 ]Blank in MS. Presumably a reference to the Act of Settlement, 1701.

[o]Reading of last two words doubtful

[84 ]i.e. James II. The account is based on Gilbert Burnet, History of His Own Time, Book IV (Edinburgh, 1753), III.7 ff.

[p]Reading doubtful

[85 ]Sic. Presumably some words have been omitted. What Smith probably said was that the king’s action in relation to the customs still had an air of respectability about it, but ‘this was not the case in the excise’. Cf. 142 below.