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Thursday. March. 24. 1763 - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence 
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).
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Thursday. March. 24. 1763
I have now considered this 2d question with regard to publick law pretty nearly with all the precision it can admit of.—The sovereign power is in all governments absolute, and as soon as the govt. is firmly established becomes liable to be controuled by no regular force. In the state of hunters and shepherds it is far otherwise; but now the summa potestas is not liable to be controuled by any regular power. For if what we called the summa potestas was liable to be called to account by any man, any body of the people or the whole people, this person or body would be the summa potestas, and if this again was under the authority of another, this would be the summa potestas. So that we must always end in some bodyq who have a power liable to no controul from a regular power. The whole is trusted to them without any restriction with regard to legisle., jud., or exec. power. We are not indeed to expect that these will always be exercised with the greatest propriety. Many foolishr laws have no doubt been made which | have been repealed the next session; many improper taxes have been imposed, the inconveniency of which was soon felt, as the hearth–money and the poll–tax; many imprudent wars have been entered into and many foolish peaces have been made by the king and his council, as that of Utrecht.86 Now many such things may be done without intitling the people to rise in arms. A gross, flagran<t>, and palpable abuse no doubt will do it, as if they should be required to pay a tax equal to half or third of their substance. But how far the sovereign power may go with safety can not be said. We see that they may in this respect raise much higher taxes and supplys at one time than at an other. When the sovereign power is divided amongst different hands, tho it is impossible to say how far the whole sovereign power conjoind may go, it is easy to ascertain when any of those amongst whom it is divided go beyond their lawfull bounds; for this is the case whenever any one of them attempts to exercise the power which belongs to another, as if the Parliament or king should act in the legislative way without the consent of the other, if the Parliament should make war or the king endeavour to raise taxes. The king can indeed remedy any unjust proceedings | of the Parliament by proroguing them.—The very definition of a perfect right opposed to the offices of humanity, etc., which are by some called imperfect rights, is one which we may compell others to perform to us by violenc<e>.—If therefore the severall parts of the governmen<t> have a perfect right to their severall provinces, it must be supposed that they are intitled to defend themselves in them by force.—If therefore the king levies taxes which are not imposed by Parliament, he breaks the rules of the government. This was what James 2d did, and as I said above87 without any necessity, with regard to the customs, as an easy method could have been taken to prevent all inconveniencies of a sudden importation. There was not even this excuse with regard to the excise, as it was raised chiefly from beer which the brewer could not have overstocked in any s[h]ort. It was raised in the 1st place by a illegible words of law with regard to the meaning of the Act.88 The case was precisely the same as if one should get a lease of a farm for 30 years with a power of subsetting as we call it for 3 years, and in the 30th year should subset part of it; that could not intitle the subtenent to any advantage after the 30th year. The date was also falsified, which | is not a whit more excusable than a fo<r>gery, and subscribed by the commissioners as if in Charles time. All this was done expressly conterary to the Petition of Right,89 which secured the Parliament in the right of levying taxes (which had been encroached on by Charles 1st.) in a very particular manner.—Another thing which was at first little attended to was the breach of the tests. The nation, seeing that Charles 2d was likely to have no children, became extremely jealous of the bigotry, violence, and improvidence of James, of which they had had many instances. There were therefore two tests enacted,90 the one against papists, which was brought about by all the Whig and republican party, particularly the Protes. clergy, and the other against dissenters, by the established church. These secured that no one should be admitted to any office in the government who did not take the sacramen<t> according to the Church of England form. This was expressly levelled against the designs of James and his party as well as the dissenters; and also that no one who was a papist could serve in the army for a longer time than three months unless he took the oaths of supremacy and | abjuration. James however employed in the rebellion of the Duke of Monmouth severall Roman Catholick officers, as they could serve for 3 months. Finding them very serviceable he resolved to continue them; of this he acquainted thet Parliament; and altho it was well known that <?had> he done it without making any mention of it, they would [have] thro their great servility have overlooked it; yet as he plainly told them that he was resolved to break thro the rules of the government they thought themselves bound to remonstrate against it.91 He was also extremely cruel in punishing many of the state criminals. Jeffreys in one circuit executed six hundred persons after Monmouths rebellion, many of whom also, tho they had very good excuses, were compelled by force to plead guilty. In the last rebellion,92 which threatend the government with much greater danger, there <were> only about 60 civil executions (tho’ there were severall other military ones not altogether so justifiable) notwithstanding that there were many men of character concerned in it, and not above one or 2 in Monmouth’s, which lasted only about three weeks.—By dispensing with the test, he introduced many Roman Catholicks into offices; he brough<t> | four into the Privy Council, put one at the head of theu Treasury, an other at that of the exchequer, etc; appointed a Roman Catholick clergy man to be Dean of Christchurch;93 and ordered the fellows of Magdalen College to elect a Roman Catholick94 for the master, which they refusing, as the person was not only a R. Cath. but also of a character improper for that office, he turned them out of their places, which was as evident an encroachment on property as any other action he could have been guilty of. He assumed this dispensing power not only with regard to the tests but also with regard to the penall laws. This power had been granted formerly to Charles with regard to some things of no importance, as the shape of carts and waggons, and these he quoted as precedents. The penall laws had originally been made to strengthen the kings authority in the punishing of crimes, and therefore he might be allowed to dispense with them whenever he could do without them. But that he should dispense with an Act of Parliament made plainly to restrict his power and to suppress a religion conterary to the interests of the nation could never be granted. This he did not only by dispensation to particular persons but alsov in the progress of his government suspended the laws altogether, which as it was for | an unlimited time amounted to the same thing as the abrogating them.—Another step which as much as any thing tended to bring about the Revolution was the order he issued out, which was ordered to be read by all the clergy men in the kingdom, containing a declaration of the suspension of all the penall laws. He thought they would have come the more easily into it as they had read one in the time of Charles 1st to the same effect; it however had the sanction of Parliament, which this wanted. Accordingly not above 200 clergy men in all England read it. The Archbishop of Canterbury95 and 6 or 7 others went and presented a remonstrance and petition drawn up in the most gentle terms, requesting he would recall the order; but instead of listening to them, he sent them all to the Tower. Nothing could be more alarming to the nation than this of sending to prison 6 or 8 of the most respectable men in the kingdom, not only for their character as clergy men but as lords of Parliament, for doing what every subject has a right to do; and they more especially, as they can at any time demand a private audience. Some time after one Sharp preached a sermon against popery, which being the kings religion was construed as an affront against him. He therefore | ordered the Bishop of London to suspend him. This he told him he could not do without bringing to a fair trial; but offered at the same time to advise him to desist, which he accordingly did. James, not satisfied with this, instituted a court of commissioners of ecclesiasticall affairs, which he thought he could do with safety by altering the name of the High Commission Court which had been dissolved in the time of Charles 1st, which court immediately sent the Bishop and Sharp to the Tower as being guilty of an affront in dissobeying the kings authority.96 Besides this,w when he saw that the whole nation was disgusted at the encouragement he gave to popery, he published a declaration granting liberty of concience to people of all religions, which he had no power to do, and promising at the same time that he would notx use irresistible necessity to oblige any one to change his religion.97 It was well known that he would oblidge no one to become Protestant, so that this was no more than declaring that he would not treat the Protestants with the very greatest severity; | a declaration which none but a mad man would have thought of making in a Protestant country. Fancying also that one great objection of the nobility against popery was that the abbey lands which had been given to the nobility in the time of Henry the 8th would be restored, he declared that every one should be allowd to possess his lands as he did at that time, which plainly signified his intention of introducing popery into the kingdom.—He then applied himself to the army and asked them if they approved or not of his abolishing the test oaths. This he began to do in a single regiment, desiring that if they were of a contrary opinion they should lay down their arms; and was surprised to find that excepting 6 or 7 men and one or two Roman Catholick officers they all grounded their arms. This incenced him greatly and he ordered them to take them up again, telling them that he should never afterwards consult them on any such matters.98 From all this we need not wonder that the whole nation deserted him and called over William in his stead. They might no doubt have passed over the whole Stuart family and chosen any one they pleased for king; for as | the children of one who is guilty of treason against the government are for ever incapable of succeding to any estate, so when the sovereign is guilty of any breach of duty to his people he might well be supposed to forfeit for ever all title to the crown. But this they generously dispensed with, and passing over his son who was also a Roman Catholick and suspected as to his legitimacy, theny called in his daughter Mary; and in her reign99 the kingdom was settled on Anne, and failing he<r> issue on the family of Hanover, the nearest Protestant heirs, and a maxim established that no one of a different religion from the established one could ever fill the British throne.
End of Volume Five of MS.
[86 ]The peace of Utrecht, 1712 (i.e. during Queen Anne’s reign) ended the war of the Spanish succession.
[87 ]138 above.
[88 ]12 Charles II, c. 23 (1660) had granted the excise to Charles for life, and sec. 14 allowed it to be farmed for not more than three years; for the case, see Burnet, op. cit., III.8.
[89 ]3 Charles I, c. 1 (1628).
[90 ]25 Charles II, c. 2 (Test Act, 1673) barred Catholics and Nonconformists from holding public office. 30 Charles II, st. 2, c. 1 (Test Act, 1678) barred them from sitting in Parliament.
[91 ]Burnet, op. cit., III.49.
[92 ]i.e. that of 1745.
[93 ]John Massey in 1686: Burnet, op. cit., III.112.
[94 ]Anthony Farmer: Burnet, op. cit., III.116–19.
[v]‘with re’ deleted
[95 ]William Sancroft in 1688: Burnet, op. cit., III.174 ff.
[96 ]In 1686: Burnet, op. cit., III.81 ff. The Bishop and Sharp were merely suspended from office.
[w]Illegible word deleted
[x]Two or three illegible words deleted
[97 ]Burnet, op. cit., III.137: ‘no invincible necessity’.
[98 ]P. Rapin, History of England (tr. Tindal, 1743), II.768.
[99 ]In fact after her death, by 12 and 13 William III, c. 2 (Act of Settlement, 1701).