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119.: To LORD HAILES - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 6 Correspondence of Adam Smith [1740]

Edition used:

Correspondence of Adam Smith, ed. E. C. Mossner and I. S. Ross, vol. VI of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1987).

Part of: The Glasgow Edition of the Works and Correspondence of Adam Smith, 7 vols.

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119.

To LORD HAILES

  • Address: To the Right Honble The Lord Hales, Edinburgh

MS., Kyoto University of Foreign Studies Libr., Japan; Sotheby’s Catalogue 21 May 1968, illus. facing p. 65 (in part); unpubl.

Kirkcaldy, Tuesday 16 May [1769]

My Lord

I have read over with very great pleasure your Lordships discourse on the Laws of Malcolm.1 I am entirely of your Lordships opinion that they are not the Laws of any King Malcolm; but the composition of some private man, who meant to describe the great outlines of the Laws and customs of his Country, which he supposed, or had been told by tradition, were first introduced by some antient and famous king of the name of Malcolm; either Malcolm McKenneth or Malcolm Canmore;2 the former just as probably as the latter. It does not, I think, appear that the Author himself ever meant that they should pass for the original Statutes of that King. The Whole book is a narrative or History of the Regulations which he supposed had been made in times that were antient in comparision of his own. The Style is every where, not Statutory, but Historical. He intitled them the Laws of Malcolm, because he supposed that they had originally been instituted by some King of that name in the manner in which he tells; which tho’ very absurd, is not more so than the account given in many antient Books of the origin of other laws and customs. The supposition of their being the Statutes of any King is a blunder, and a very gross one, of later writers for which the Authour is not answerable. Your Lordship, has, I think, proved very clearly that this authour must have lived in the Norman times and was probably posterior to Richard 2d.3 The Discrepancies which your Lordship has taken notice of in the prices of several different things, are very look [?like those] which occur in the antient Coutumes of many different provinces of france. Mr Du Pré de St Maur has tortured his brain to reconcile them and make them all consistent.4 The real cause of those discrepancies seems to have been that either the Authors of those compilements, or perhaps the courts in the particular Province had in some cases simply followed some antient valuation, and in others had accomodated that antient valuation to the changes that had afterwards been made in the Standard of the coin; and this pretty much as accidental circumstances had directed.

I am greatly obliged to your Lordship for your attention in sending me the Orkney Process.5 I had before got together all the Papers except two; which two will be of the greatest use to me. I have taken a copy, as your Lordship allowed me, of your Manuscript upon the antient Prices of Corn etc.6 I shall therefor return the two Manuscripts along with all the Orkney Papers that I had not before collected; by next weeks carrier. I shall come to Edinburgh in the end of Summer Session7 when I shall beg your Lordships assistance to get access to the Chartularies8 from which you have copied the Prices of corn &c. I ever am

with the greatest Respect My Lord your Lordships most obliged humble Servant

Adam Smith

[1 ]An Examination of Some of the Arguments for the High Antiquity of Regiam Majestatem; and an Inquiry into the Authenticity of Leges Malcolmi (Edinburgh, 1769).

[2 ]Malcolm II, reigned 1005–34; Malcolm III, 1058–93.

[3 ]Modern scholars ascribe the Regiam Maiestatem to the fourteenth century, after 1318, and acknowledge its borrowings from Anglo–Norman, as well as Roman and canon law sources; see A. A. M. Duncan, ‘Regiam Maiestatem; a reconsideration’, Juridical Review (1961), 199–217; and Peter Stein, ‘The source of the Romano–Canonical Part of Regiam Maiestatem’, Scottish Historical Review xlviii (1969), 107–23.

[4 ]See Letter 115, dated 15 Jan., n. 6.

[5 ]See Letter 117, dated 6 Mar., n. 2.

[6 ]See the memorandum printed with Letter 117.

[7 ]The Court of Session sat from 12 June to 12 August in the summer.

[8 ]Of Aberdeen, Arbroath, Cambuskenneth, Dunfermline, Dryburgh, Kelso, Moray, and Scone—possibly in the Advocates’ Library. Hailes was not thought to be able to read charter–hand (Cosmo Innes, Lectures on Scotch Legal Antiquities, 1872, i, n. 1), but Smith could call on the help of his friend, John Davidson, Clerk to the Signet.